[2007] KEHC 1228 (KLR)
The court found that both counts against the appellant were based on defective charges. Rule 70 of the Traffic Rules and Section 98(1) of the Traffic Act impose certain requirements but do not themselves create offences or prescribe penalties. The charge sheet failed to cite the penalty sections, contravening...
Source-derived case information.
- Citation
- [2007] KEHC 1228 (KLR)
- Parties
- Appellant: Mathew Warema Githui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 707 of 2006
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; sentence set aside; appellant to be set at liberty unless otherwise lawfully held.
- Judges
- GMA Dulu
- Legal Topics
- Traffic Offences, Defective Charge Sheet, Plea of Guilty, Sentencing Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mathew Warema Githui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the charges against the appellant were defective for failing to cite the penalty section and for not disclosing an offence.
- 2 Whether the sentence imposed was ambiguous and excessive.
- 3 Whether the plea of guilty was unequivocal.
Ratio Decidendi
The court found that both counts against the appellant were based on defective charges. Rule 70 of the Traffic Rules and Section 98(1) of the Traffic Act impose certain requirements but do not themselves create offences or prescribe penalties. The charge sheet failed to cite the penalty sections, contravening Section 77(8) of the Constitution, which requires that an accused person be informed of the nature of the offence. The sentence imposed was ambiguous, as it did not specify which count it related to. The plea of guilty could not cure the defects in the charge. Consequently, the convictions could not be sustained, and the appeal was allowed.
Court Disposition
appeal allowed; convictions quashed; sentence set aside; appellant to be set at liberty unless otherwise lawfully held.
Orders
- The appeal is allowed.
- The convictions on both counts are quashed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Appeal 707 of 2006
MATHEW WAREMA GITHUI ……………....……………………APPELLANT
VERSUS
REPUBLIC………………………………..…………………….RESPONDENT
(From the original conviction and sentence in criminal Case No. 1378 of 2006 of the Senior Resident Magistrate’s court at Kiambu – Ms. D. Milekyo SRM)
JUDGMENT
MATHEW WARAMA GITHUI, the appellant, was charged before the subordinate court with two counts under the Traffic Act. Count 1 was for driving a Public Service Vehicle on a public road without yellow band contrary to rule 70(1) of the Traffic Rules (Cap 403 Law of Kenya
e particulars of offence were that on 21st November 2006 at about 1. 00 am along Kamiti road within Nairobi area being the driver of motor vehicle registration number KAL 621R make Toyota Corolla Taxi did fail to print a continuous horizontal yellow band on the said motor vehicle. Count 2 was for driving a public service motor vehicle on a public road without the driver’s public service licence contrary to section 98(1) of the Traffic Act Cap 403 laws of Kenya. The particulars of offence are that 21st November 2006 at about 1 am along Kamiti road within Nairobi Area, being the driver of motor vehicle registration No. KAL 621R Toyota Corolla taxi drove the said motor vehicle on a public road without the driver’s public service licence. The appellant was recorded as having pleaded guilty to both counts. He was convicted and sentenced to 30 days imprisonment. He was thereafter granted bail pending appeal by the trial court. He has now appealed to this court against both conviction and sentence, through his counsel M/s Gatitu Wang’oo & Company advocates. The grounds of appeal are as follows –
1. The learned magistrate erred inlaw by allowing defective charges against the appellant.
2. The learned magistrate erred in law by sentencing the appellant ambiguously without stating the 30 days imprisonment was for which of the two counts.
3. The learned magistrate erred in law and in fact by entering a plea of guilty against the appellant when the plea was not unequivocal.
4. The learned magistrate erred in law by sentencing the appellant to a harsh and excessive sentence.
At the hearing of the appeal, Mr. Gachomo, for the appellant submitted in support of the grounds of appeal. Learned State Counsel, Mrs. Gakobo, conceded to the appeal. Counsel submitted that the charge was defective as it did not cite the section of law that provided the penalty for the offence. Secondly, the court imposed a sentence without indicating the count for which the sentence was imposed. In counsel’s view, the proceedings were irregular.
The appellant was charged with contravention of rule 70 of the Traffic Act (Cap. 403) with regard to count 1. That rule puts some certain legal requirements that are applicable to taxis. It neither creates an offence nor does it provide a sentence. Among them is the requirement for a yellow band. The appellant could not be convicted of such a default, as it did not disclose an offence as required under section 77(8) of the Constitution. The conviction count 1 cannot be sustained and has to be quashed.
In count 2, the appellant was charged with contravening section 98(1) of the Traffic Act (Cap 403). Again, that section imposes certain legal requirements for drivers and conductors of public service vehicles. However, it neither creates an offence, nor does it prescribe the penalty for default. The charge is therefore defective for contravening the requirements of section 77(8) of the Constitution. A conviction for this offence cannot be sustained and has to be quashed. Learned State Counsel has conceded to the appeal and, in my view, correctly so.
Consequently, I allow the appeal quash the conviction and set aside the sentence imposed by the learned magistrate. In order that the appellant be set at liberty forthwith unless otherwise lawfully held.
Dated and delivered at Nairobi this 21st day of November 2007.
George Dulu
Judge
In the presence of –
Mr. Chege for appellant
Mrs. Gakobo for State - absent
Eric - court clerk