[2022] KEHC 13768 (KLR)

Nzuki v Republic (Criminal Revision E136 of 2022) [2022] KEHC 13768 (KLR) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13768 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E136 of 2022

GL Nzioka, J

October 4, 2022

Between

Andrew Musau Nzuki

Applicant

and

Republic

Respondent

Ruling

1. The applicant was arraigned before the Chief Magistrate’s Court vide Traffic Case No E726 of 2022, charged with the offence of driving a laden motor vehicle on a public road with dimensions of which exceeds the maximum dimension contrary to section 55(2) as read with 58(1) of the Traffic Act, Cap 403 laws of Kenya. The particulars of the charge are as per the charge sheet.

2. He pleaded guilty and was sentenced to pay a fine of kshs 200,000 in default to serve one year imprisonment. However, he seeks for sentence review based on the notice of motion application filed in court on September 12, 2022 in which he prays that the custodial sentence in question, be reduced converted to a non-custodial sentence.

3. He relies on the memorandum of sentence review in which he states in the mitigating grounds that;-a.That, I am a first offender.b.That, I pray that this honourable court allow me to spend the remaining period of my sentence under Community Service Order (CSO) or set me at liberty.c.That, I am remorseful of my offence and I have learnt to be a law-abiding citizen.d.That, I am from a poor family background.e.That, I did not give proper mitigation during my sentencing and hence would like to present during the hearing and determination of this application.f.That, I am the sole breadwinner of my family and my incarceration has placed them in a very difficult situation.g.That, I humbly beg this honourable court for leniency and reduce my (1) year sentence.h.That, I am not appealing against sentence and conviction but applying for a review of sentence.

4. Having considered the application I find that, the offence with which, the applicant is sentenced with is provided for under section 55(1) as read with section 58(1) of the Traffic Act. The two sections states as follows:-Section 55(2) which states:“No motor vehicle the weight or dimensions of which laden or unladen exceeds the maximum weight or dimensions provided for such vehicles by rules made under this act shall be used on a road”.As read withSection 58(1) which states:“Any person who drives or uses on a road a vehicle in contravention of the provisions of section 55 or section 56 shall be guilty of an offence and liable to a fine not exceeding four hundred thousand or to imprisonment for a term not exceeding two years or to both: Provided that rules under this act may provide that a person who is guilty of an offence under section 55 or 56 shall be liable to pay a fine according to a prescribed scale, and different scales may be prescribed for first offenders, and for second or subsequent offenders, within a prescribed period, but so that no person shall thereby be liable to pay a fine greater than the maximum provided by this subsection; and for the avoidance of doubt it is declared that liability of a person to pay a fine on a prescribed scale shall not affect that person’s liability to imprisonment under this subsection as an alternative to, in addition to, or in default of, the payment of a fine

5. It is clear from the aforesaid that, the sentence provided for the offence is a maximum fine of kshs 400,000 in default a custodial period not exceeding two (2) years.

6. The sentence meted herein was fined kshs 200,000 in default one year. The sentence is therefore within the parameters given under the law.

7. It suffices to note that, the court will only exercise its revisionary powers under section 362 and 364 of the Criminal Procedure where the sentence in issue is incorrect, illegal or improper. These parameters do not apply herein. Therefore I find no merit in this application for review and I dismiss it accordingly.It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 4TH DAY OF OCTOBER 2022. GRACE L. NZIOKAJUDGEIn the presence of:-Applicant in personMs Maingi for the RespondentMs Ogutu Court Assistant