[2022] KEHC 11019 (KLR)

Mata v Republic (Criminal Revision E272 of 2021) [2022] KEHC 11019 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11019 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E272 of 2021

MM Kasango, J

June 7, 2022

Between

Philip Akolo Mata

Applicant

and

Republic

Respondent

(Being a Criminal Revision Application from the Ruling on sentence of 16th September, 2021 at Kiambu Chief Magistrate’s Court (Hon. G. Omodho, P.M.) in Criminal Case No. E574 of 2021)

Ruling

1. Philip Akolo Mata (Philip) was on 16th September, 2021 convicted before the Kiambu Chief Magistrate Court on his own plea of guilty to the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act Cap 403. Philip has filed an application dated 10th December, 2021 for revision of his sentence where he was sentenced to pay a fine of Kshs.200,000 and in default to serve two years imprisonment. In his affidavit in support of his application, Philip seeks reduction of his sentence of the fine and period of imprisonment. He indeed seeks a noncustodial sentence. He has based his prayer for revision on the ground that he is a family man with two children, he is the sole bread winner and his elderly parents depend on him.

2. The High Court is empowered by Section 362 of the Criminal Procedure Code to call for and examine the record of any criminal proceedings before any subordinate court for purpose of satisfying itself on its correctness, legality or propriety of any finding, sentence or order and as to the regularity of proceedings of subordinate court.

3. Section 46 of the Traffic Act provides as follows:-“Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and be liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.” ‘(emphasis mine)’

4. That Section as my underlining reveals sets out the different ways of managing a motor vehicle which can amount to a criminal offence. This is indeed what was stated by the Court of Appeal in the case Dickson v. Republic (2002) eKLR thus:-“offence under Section 46, is in actual fact a charge of manslaughter in connection with driving of a motor vehicle by an accused. The section does not create more than one offence, but does sets out different ways of managing a motor vehicle which give rise to the offence. The different modes of driving are themselves offences under different provisions of the Traffic Act.”

5. The facts of the case which the prosecution provided to the trial court were as follows:-“On 29/4/2021 at 5PM at Ngonongo Tea Factory while a driver of KAH 129Q towards tea factory at top speed. So you hit the watchman of the gate Donmus Rioba Muita who perished while undergoing treatment at KNH after referral from KBU level 5 Hosp. He died (sic) 6/5/21. Upon investigations you got arrested & now charged. Post mortem report xbt 1 m/v inspection report xbt2. ”

6. I have examined the trial court’s record and I am satisfied with the correctness and legality of the sentence. Philip drove the motor vehicle in question recklessly, thereby hitting the gate of a tea factory and the watchman at that gate, which resulted in the death of that watchman. The sentence of the trial court was proportionate to the offending behavior.

Disposal 7. There being no basis to revise the trial court’s sentence, the application dated 10th December, 2021 is dismissed

RULING DATED AND DELIVERED AT KIAMBU THIS 7TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceApplicant: Philip Akolo Mata : - AbsentFor Respondent : - Mr. KasyokaRuling delivered virtually.MARY KASANGOJUDGE