[2010] KEHC 1691 (KLR)
The court found that section 49(1) of the Traffic Act expressly provides that a first-time offender convicted of careless driving is only liable to a fine not exceeding Kshs. 5,000, and not to imprisonment. The applicant, having pleaded guilty and being a first offender, was unlawfully sentenced to a custodial term...
Source-derived case information.
- Citation
- [2010] KEHC 1691 (KLR)
- Parties
- Applicant: Masoro Kiti Kombe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 98 of 2010
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- Sentence of imprisonment set aside; substituted with a fine of Kshs. 2,500. Applicant to be released upon payment of the fine.
- Judges
- JB Ojwang
- Legal Topics
- Sentencing Principles, Traffic Offences, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Masoro Kiti Kombe
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the trial court erred in sentencing the applicant to imprisonment without the option of a fine for a first offence of careless driving under section 49(1) of the Traffic Act.
- 2 Whether the sentence imposed was contrary to the express provisions of the Traffic Act regarding penalties for first-time offenders.
Ratio Decidendi
The court found that section 49(1) of the Traffic Act expressly provides that a first-time offender convicted of careless driving is only liable to a fine not exceeding Kshs. 5,000, and not to imprisonment. The applicant, having pleaded guilty and being a first offender, was unlawfully sentenced to a custodial term without the option of a fine. The learned magistrate's sentence was therefore without legal basis. The High Court exercised its revisionary jurisdiction to set aside the unlawful sentence and substitute it with a fine of Kshs. 2,500, ordering the applicant's immediate release upon payment of the fine.
Court Disposition
Sentence of imprisonment set aside; substituted with a fine of Kshs. 2,500. Applicant to be released upon payment of the fine.
Orders
- The sentence of one month imprisonment imposed by the subordinate court is set aside.
- The applicant is sentenced to pay a fine of Kshs. 2,500 in lieu of imprisonment.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Criminal Revision 98 of 2010
MASORO KITI KOMBE…………………………………APPLICANT
-VERSUS-
REPUBLIC………………………………………………RESPONDENT
RULING ON REVISION
This matter comes from Traffic Case No. 6211 of 2010 at the Chief Magistrate’s Court,Mombasa.
The applicant was charged before Mr. T. Ole Tanchu, SRM with the offence of careless driving contrary to s.49 (1) of the Traffic Act (Cap. 403, Laws of Kenya): the particulars being that he, on2nd June, 2010at about 7. 00p.m along Abdil Nassir Roadin Mombasa District of Coast Province, being the driver of motor vehicle Reg. No. KBJ 550D Nissan Matatu, drove the said motor vehicle along the said road without due care and attention to other road users, in that he hit and knocked down one Pauline Nyaboke who was crossing the road from the right side to the left side, injuring her slightly.
On11th June, 2010the charge was read over and explained to the accused, and his plea was: “It is true”.A plea of guilty was entered, and the relevant facts read out by the prosecution, whereupon the accused thus pleaded:
“The facts are true.I admit them”.
The accused was thereupon convicted on his own plea of guilty.The prosecutor informed the Court that the accused was a first offender, which the accused confirmed, and asked for leniency.The decision of the learned Magistrate is thus recorded:
“Circumstances of offence and mitigation considered. Accused to serve one month’s imprisonment”.
Such are the proceedings which have occasioned this application for revision.The applicant, through the firm of M/S. Mutisya Bosire & Co. Advocates, sought revision of the trial Court’s decision.
The main complaint is that the trial Court sentenced the applicant to a one-month term of imprisonment without the option of a fine.It was contended that the prosecution had confirmed to the Court that the applicant herein was a first offender; and so “the Court ought to have fined him a sum not exceeding five thousand Shillings”.
Learned counsel, Mr. Bosireurged that the sentence imposed on the applicant had been “in contravention [of] section 49(1) of the Traffic Act”.
Section 49(1) of the Traffic Act thus provides:
“Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable for a first offence to a fine not exceeding five thousand shillings, and for a second or subsequent offence to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding three months.”
Those terms of the statute are quite clear: for an accused who is a first-time offender, such as the applicant herein, the maximum penalty is a fine of Kshs. 5,000/=.Consequently, the sentence imposed had no legal basis.
I hereby set aside the sentence imposed by the Subordinate Court, upon revision, and substitute it with a fine of Kenya Shillings Two Thousand Five Hundred (Kshs. 2,500/=).As soon as that amount is paid, the applicant shall forthwith be set at liberty.
Orders accordingly.
DATEDand DELIVERED atMOMBASAthis 18th day of June, 2010.
J. B. OJWANG
JUDGE
Coram: Ojwang, J
Court Clerk: Ibrahim
For Applicant: Mr. Bosire