[2025] KEMC 24 (KLR)
The court found that the second count was based on a non-existent or incorrect provision of law and, to avoid a miscarriage of justice, discharged the accused under section 35(1) of the Penal Code. For the first count, the court considered the statutory penalty and the accused's status as a first-time offender,...
Source-derived case information.
- Citation
- [2025] KEMC 24 (KLR)
- Parties
- Applicant: Republic; Defendant: Stephen Mugo
- Court
- Magistrate's Court
- Court Station
- Nakuru Law Courts
- Jurisdiction
- Kenya
- Case Number
- Traffic Case E142 of 2025
- Procedural Posture
- Traffic Case / Sentence
- Outcome
- partially convicted and partially discharged
- Judges
- PA Ndege
- Legal Topics
- Traffic Offences, Sentencing Principles, First Time Offender, Statutory Penalties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Stephen Mugo
Defendant
Procedural Posture
Traffic Case / Sentence
Legal Issues
- 1 Whether the accused should be sentenced on the second count based on a non-existent or incorrect provision of law.
- 2 What is the appropriate sentence for a first-time offender convicted of riding a motorcycle without a driving license and without a helmet.
Ratio Decidendi
The court found that the second count was based on a non-existent or incorrect provision of law and, to avoid a miscarriage of justice, discharged the accused under section 35(1) of the Penal Code. For the first count, the court considered the statutory penalty and the accused's status as a first-time offender, imposing a fine of Kshs. 1,500 or, in default, 8 days imprisonment, which is below the maximum penalty. For the third count, the court applied the principle that first offenders should not receive the maximum penalty and discharged the accused under section 35(1) of the Penal Code. The court emphasized the importance of proportionality and judicial discretion in sentencing,...
Court Disposition
partially convicted and partially discharged
Orders
- The accused is sentenced to a fine of Kshs. 1,500 or, in default, 8 days imprisonment on count 1.
- The accused is discharged under section 35(1) of the Penal Code on counts 2 and 3.
Full Case Text
Judgment text and source record
21 paragraphs
Republic v Mugo (Traffic Case E142 of 2025) [2025] KEMC 24 (KLR) (11 February 2025) (Sentence)
Neutral citation: [2025] KEMC 24 (KLR)
Republic of Kenya
In the Nakuru Law Courts
Traffic Case E142 of 2025
PA Ndege, SPM
February 11, 2025
Between
Republic
Prosecution
and
Stephen Mugo
Accused
Sentence
1. The accused person herein, Stephen Mugo, has been convicted upon own plea of guilty of the offences of Riding a Motor-cycle on a Public Road without a Driving License contrary to section 30(1) of the Traffic Act Cap 403 Laws of Kenya, punishable by Section 41 of the said Act; Failing to Display Certificate of Insurance contrary to Section 9(1) of the Insurance Act 405 Laws of Kenya; and Riding a Motor Cycle Without a Helmet Contrary to Section 103B (1) as read with section 103B(7) of the Traffic Act, as Amended in 2012, Cap 403 Law of Kenya, in the 3 counts herein.
2. He admitted that on 06/02/2025 at about 11. 10pm along Nakuru-Mailisita road at Posho Mill area in Nakuru North sub-County within Nakuru County, being the rider of a motorcycle Reg. No. KMFE xxxZ make Haojue, he rode the said motorcycle on a public road without a driving license, without displaying a certificate of insurance against third party risks and without a helmet.
3. He is a first-time offender and has pleaded for forgiveness. I have looked at the charges and the penalty provisions. First, I do find that the charge in the second count is based on a none-existent or wrong provision of the law and to proceed to sentence the accused on it, shall obviously lead to a miscarriage of justice. I do hereby discharge the accused of the offence in the second count pursuant to the provisions of section 35(1) of the Penal Code as that is the only option available to me at this stage.
4. As for the offence in count 1, I find the penalty provisions therein to read as follows:41. Penalties under this PartAny person who contravenes or fails to comply with any of the provisions of this Part shall be guilty of an offence and liable, where no penalty is specifically provided, on first conviction to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three months, and on each subsequent conviction to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding six months or to both.
5. The accused being a first-time offender, I do hereby sentence him to a fine of Kshs. 1,500/= in default to served 14 days imprisonment in the first count. As for the 3rd count, I find that the same is punishable under the Traffic Act Minor Offences) Rules, 2016, which provides for a maximum of Kshs. 1,000/=. The accused being a first-time offender, should not be subjected to the maximum penalty no matter how low the sentence might appear, as was held in the case of Richard Ombati Kerage Vrs Republic [2008] eKLR in which the court held as follows:As regards the appeal against sentence, the appellant was a first offender and was a fairly young man although his age could not be verified. He only said that he was eighteen years’ old. A trial court should not sentence a first offender to the maximum sentence provided by the law unless there are exceptional circumstances that justify the same.
6. I do not find any exceptional circumstances herein that might make me depart from the general rule and I thus do hereby exercise my discretion and sentence the accused as follows:a.Count 1: Kshs. 1,500/- in default to serve 8 days imprisonment.b.Counts 2 & 3: Discharged under section 35(1) of the Penal Code.R/A 14 days explained.
DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS 11TH DAY OF FEBRUARY ,2025ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Court interpreter: JanetProsecution Counsel: MachariaAccused: Present