[2023] KEHC 23755 (KLR)

Ngotho v Republic (Criminal Appeal E033 of 2022) [2023] KEHC 23755 (KLR) (16 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23755 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E033 of 2022

FROO Olel, J

October 16, 2023

Between

Boniface Maina Ngotho

Appellant

and

Republic

Respondent

(BEING AN APPEAL ARISING FROM THE CONVICTION AND SENTENCE OF HON B. KASAVULI (PM), IN MAVOKO TRAFFIC CASE NO. E066 OF 2022 DELIVERED ON 17th JANUARY 2022)

Judgment

A. Introduction 1. The Appellant herein Boniface Maina Ngotho was on 17th January 2022 charged with the offence the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act cap 403 Laws of Kenya. The particulars were that on 29th day of November 2021 at about 0045hrs at Gateway Mall area along Nairobi- Mombasa Road within Machakos county, being the driver of Motor vehicle registration Number KAZ 961J make Toyota Matatu having regard to all the circumstances of the case, including the nature, condition’s and use of the road and the amount of traffic which was actually at the time, drove the said motor vehicle at a speed and in a manner which was dangerous to other road users by failing to observe human traffic and as a result knocked down a pedestrian namely Fredrick Makori Onduso who was crossing the road from left side to right side as one faces Nairobi general direction from Mombasa direction and due to the impact the said pedestrian sustained bodily injuries and died while undergoing treatment at St Mary’s Hospital-Langata.

2. The appellant on the Count II was charged with the offence of driving a defective motor vehicle on the road contrary to section 55(1) as read with section 58(1) of the traffic Act, Cap 403 laws of Kenya. The particulars of the offence were that on the 29th day of November 2021 at about 0045hrs at Gateway Mall area along Nairobi- Mombasa road within Machakos County, being the driver of a public service vehicle registration Number KAZ 961J make Toyota Matatu drove the said motor vehicle on the road while defective as per certificate of examination and test of vehicle report No 093987 dated 093. 12. 2021 and an order of prohibition of use of the said motor vehicle on the road issued vide receipt No 010036 dated 03. 12. 2021.

3. The appellant took plea on 17. 01. 2022 and after the charges were read out to him, he did plead guilty on both count I and Count II and did state that “Ni Kweli”. The court did enter a plea of guilty and the prosecution proceeded to state the facts of the case and when asked if the facts were correct, the appellant confirmed that indeed the said facts were correct. The court thereafter convicted the appellant on his on plea, allowed him to mitigate before he was sentenced to serve five (5) years in jail on count I and to pay a fine of Ksh.200,000/= on count II or in default to serve one (1) year in Jail.

4. The appellant being dissatisfied by the said judgment did file his petition of Appeal pursuant to leave granted by Justice G.V. Odunga on 28th July 2022 and raided the following grounds of Appeal;a.The learned trial Magistrate erred in law and in fact by convicting the appellant for the offence of causing death by dangerous driving contrary to section 46 of the traffic Act Cap 403 laws of Kenya as set out in Count I of the charge sheet.b.The learned trial Magistrate erred in law and in fact by convicting the appellant for the offence of driving a defective motor vehicle on the road contrary to section 55(1) as read with section 58 (1) of the Traffic Act Cap 403 laws of Kenya as set out in count II of the charge sheet.c.The learned trial Magistrate erred in law and in fact by sentencing the Appellant to serve five years in Jail on the first count.d.The learned trail Magistrate erred in law and inf act by sentencing the Appellant to pay a fine of Kshs 200,000/= on the second count.e.The learned trial Magistrate erred in law and in fact by ruling that the sentence was to run consecutively.f.The Honourable court erred in law and in fact by failure to comply with section 207(2) of the criminal procedure code, Cap 75 laws of Kenya.g.The Honourable court erred in law and in fact by failure to comply with section 46 of the Traffic Act Cap 403 laws of Kenya.h.The learned trial Magistrate erred in law and in fact by convicting the appellant on both counts in failing to make a finding that the facts that were read out to court by the prosecution did not contain material facts and ingredients to proof the offence in count I and therefore could not sustain the conviction.i.The learned trial Magistrate erred in law and in fact by convicting the Appellant on the second count in failing to a finding that the facts read out to court by the prosecution did not contain material facts and ingredients to proof the offence in count II and therefore could not sustain the conviction.j.The learned trial Magistrate erred in law and in fact by convincing the appellant on the second count in failing to make a finding that the mitigation of the Appellant was an admission on prosecution facts that lacked material facts and ingredient’s that could not sustain a conviction and sentence and should therefore have entered a plea of not guilty.k.The learned trial Magistrate erred in law and in fact by failing to call for a pre-sentence report and therefore the sentence was excessive.

B. Appellants Submissions 5. The appellant did content that while the record indicated that the accused in answer to the charges pleaded/said “Ni Kweli” on both counts, the court proceeded to record “a plea of not guilt is entered”. This was a clear indication that the trial magistrate was not convinced and/or persuaded with the appellant’s plea of guilt and faithfully recorded the same. It was thus an error for the trial magistrate to invite the prosecution to proceed to read out the facts and that rendered the whole proceedings to be annulity.

6. The appellant further did submit that the facts as read out did not contain the essential ingredients of the charge that lead to the appellant’s conviction. As regards count I, by simply stating “the accused was driving” without any additional information could not have constituted sufficient facts so as to constituted an offence of dangerous driving. The prosecution failed to add details in which manner he was driving, the circumstances under which the accident took place, the nature of the road, the speed, that could have been said to have been dangerous to other road users or proof that he failed to observe human traffic. Count two, also suffered from the same defect. As the defects were not specified.

7. The appellant did pray that this appeal be allowed and that the conviction and sentence be set aside for breach of statutory provisions.

C. Respondents Submissions. 8. The respondent opposed this appeal and stated that the handwritten proceeding did show that the appellant pleaded guilty and the court did enter a plea of guilty. Under section 348 of the criminal procedure code, this appeal could only be based on grounds of law and not facts. The particulars of the offence contained all the facts and the same were also recited by the prosecution. The appellant did agree that the same were correct. Further the certificate of inspection/ examination No 93987 dated 03. 12. 2021 was also produced into evidence to show the pre and post-accident state of the motor vehicle.

9. Under section 46 of the Traffic Act Cap 403, the maximum sentence provided for causing death by dangerous driving is ten (10) years. The court did exercise its discretion in sentencing and the same could not be faulted and therefore should not be disturbed. The respondent prayed that this appeal be dismissed.

D. Analysis and Determination 10. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by Okeno Vs. Republic (1927)E.A 32 & Pandya Vs. Republic (1975) EA 366.

11. Also in Peter’s vrs Sunday Post(1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.

12. The appellant’s petition of appeal challenges both conviction and sentence. The provisions of section 348 of the criminal procedure code expressly bars appeal from subordinate court where an accused person was convicted upon a plea of guilt except on the extent and legality of the sentence. The said section provides that“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent and legality of the sentence.”

13. It therefore follows that the appellant is by virtue of section 348 of the criminal procedure code is barred from challenging the conviction and his only recourse is to challenge the extent or legality of the sentence imposed on him by the trial court. But it has been held severally by court that this bar only operates where the plea is unequivocal. Accordingly, the court is not barred from inquiring as to whether a prima facie plea of guilty was unequivocal or not. Similarly, it does not bar the court form inquiring as to whether the facts as read out to the accused constituted any offence. See Anthony Muthoga Munene Vs Republic {2022} eKLR.

14. In the case of Hando s/o Akunaay vrs Rep (1951) EACA 307 the court held that;“Before convicting on any such plea, it is desirable not only that every Constituent of the charge should be explained to the accused, but that he should be required to admit or deny every such constituent.”“Where an accused person who has been called upon to plead under section 207 of the criminal procedure code in the subordinate admits the charge the proviso to subsection (2) requires the prosecution to outline the facts upon which the charge is founded. The truth or otherwise of the charge is a combination of three things, the charge, the particulars of the offence contained in the charge-sheet or information as the case maybe, as well as the facts outlined where the accused pleads guilty. The facts therefore are as important part of the plea as the charge itself. The nature and element of the offence in totality must be understood by the accused and the trial court must be satisfied about this accepting them as true.

15. Based on section 348 of the criminal procedure code, this court cannot thus deal with elements of the appeal which touch on conviction. Before the trial court the charge against the accused was read out to him in a language he understood (Kiswahili) and he pleaded guilty to the same by stating that; “Ni Kweli . “The prosecution then went ahead and read out the summarized facts of the case and produced the Exhibit they relied on to prove their case. The accused at this stage when asked if the facts were corrected stated that, “Facts are true.”

16. The question before this court is simple. Was the plea equivocal or unequivocal given the circumstance and facts of this appeal? In the opinion of this court it is clear that the appellant did fully understand and agree with the charge and particulars of the offence as read out and that is why he pleaded guilty on both counts. The counts in the charge sheet contained specific offences and had elaborate particulars of the offence. After the plea of guilty was entered, the prosecution went head and did explain the facts to the appellant and he admitted that they were true. The provisions of section 207 of the criminal procedure code was thus complied with and prima facie, the plea of guilty by the appellant was unequivocal.

17. The appellant did raise the issue that a plea of not guilty was entered and the same was reflected in the typed proceedings. The trial magistrate was thus faulted for proceeding to convict the appellant yet the plea was unequivocal. That contention by the appellant is not true as the hand-written proceedings of the trial file does clearly indicate that a plea of guilty was entered as against the appellant.

18. The appellant did further submit that all the ingredients of the offence was not included in the charge and therefore the same could not have constituted proof of the prosecution facts. It was not shown through additional information how his driving constituted an offence of dangerous driving. Secondly the specific motor vehicle defects were not specified, which was a fatal failure to the prosecution case.

19. The appellant’s contention on the second limb is also baseless as the charge on count 1 clearly indicated in the particulars that motor vehicle he was driving and in what manner he drove it to constitute the offence of dangerous driving. On the Count II the prosecution did produce the motor vehicle inspection report as Exhibit 1. The said report did provide the evidence of the defect’s alleged. This ground of appeal thus fails.

E. Sentencing 20. Sentencing is a discretion of the trial court. But the court should look at the facts and the circumstances of the case in it’s entirely so as to arrive at appropriate sentence. The Court of Appeal Thomas Mwambu Wenyi Vs Republic (2017) eKLR cited the decision of the Supreme Court of India in Alister Anthony Pereira Vs State of Mahareshtra at paragraph 70-71 where the court held the following on sentencing:“Sentencing is an important task in the matter of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straight jacket formula for sentencing an accused person on proof of crime. The courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstance of each case and the courts must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.

21. The Court of Appeal in the case of Benard Kimani Gacheru Vs Republic (2002) eKLR stated;“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.

22. The sentence under section 46 of the Traffic Act, Cap 403 provides for a maximum sentence of ten (10) years. While on the second count, a person who contravenes section 55(1) as read with section 58(1) of the traffic Act, Cap 403 is liable to be fined a maximum of Kshs 400,000/= or to imprisonment for a term not exceeding two years or both. The sentence handed out to the appellant on both counts were thus legal and made at the absolute discretion of the court which finding cannot be faulted.

23. The final issue raised by the appellant was that, the trial magistrate erred in law and fact by failing to call for a pre-sentence report. Paragraph 22. 13 of the sentencing Guidelines does state that“To pass a just sentence, it is pertinent to receive and consider relevant information. The court should as a matter of course, request for pre-sentence report where a person is of a felony as well as in case where the court is considering a non-custodial sentence……. Whilst the recommendations made in the pre-sentence reports are not binding, the court should give reasons for departing from the recommendations.”

24. By virtue of provisions of Article 27(1) of the constitution of Kenya 2010, the appellant has legitimate expectation to be treated equally before law and have equal protection and benefit of the law. Sentencing constitutes part of the trial process and indeed where a pertinent process is not undertaken which could favour appellant, it would constitute an affront to provisions of Article 50(2), (p) of the constitution of Kenya 2010.

F. Disposition. 25. Given that a pre-sentence report could have had favorable considerations that would have impacted on the sentence handed down to the appellant, I do direct that the probation office- Mavoko do file an new pre-sentence report in Mavoko Traffic Case No E066 of 2022 within the next 30 days of delivery of this ruling and the Chief Magistrate – Mavoko court to re-sentence the appellant afresh after considering the same.

26. The appeal on all other aspects as raised in the petitions of Appeal are unmerited and is therefore dismissed.

27. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 16TH DAY OF OCTOBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 16th day of October, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant