[2022] KEHC 16202 (KLR)

Republic v Otieno & 2 others (Criminal Revision E011 & E012 of 2022 (Consolidated)) [2022] KEHC 16202 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16202 (KLR)

Republic of Kenya

In the High Court at Vihiga

Criminal Revision E011 & E012 of 2022 (Consolidated)

PJO Otieno, J

December 9, 2022

Between

Republic

Applicant

and

Assha Otieno

1st Respondent

Emma Otieno

2nd Respondent

As consolidated with

Criminal Revision E012 of 2022

Between

Republic

Applicant

and

Lads Odhiambo

1st Respondent

Bernard Kirui

2nd Respondent

Ruling

1. The records of the above two files show that in each, both accused persons were arraigned in court on the same day and charged with two counts; using a motor vehicle on a public road with a load greater than the specified load contrary to section 56 (1) as read with section 58 of the Traffic Act and rule 41 (2) of the Traffic Rules and; permitting a motor vehicle to be used on a public road with a load greater than the load specified contrary to section 56 (1) as read with section 58 (1) and rule 41 (2) of the Traffic Act.

2. The count of using a motor vehicle was preferred against the driver while that for permitting the use was preferred against the owner. The two files carried similar offences and ended conviction and similar sentences hence, to save court’s time the two files were consolidated.

3. All the accused persons pleaded guilty to the charges and when the particulars were read out to them, they admitted the said particulars with some explanations which would have otherwise recanted the plea of guilt. The trial court did convict them on such plea and sentence each to a fine of kshs 15,000 or to serve an imprisonment term of four months in default of payment of the fine. The court further ordered that the two motor vehicles be released to the owners upon payment of the fine.

4. It is the sentence meted out that has aggrieved the prosecution who contends that the sentence was passed without regard to both section 58 of the Act and rule 41 of the Traffic Amendment Rules. To the prosecution, while sentence is at the discretion of the court, where the statute provides a formula for calculation of a fine, there must be a reason preferred to depart therefrom. In the instance case the prosecution says the discretion exercised by the trial court was not judicious for reasons that no grounds were given for giving a fine lesser than those provided by the statute.

5. The particulars of the offences charged in each of the two files were that;Count 1: Issha OtienoOn October 7, 2022 at around 1828 hrs at Kakamega – Kisumu road at Mbale Area Vihiga County being the driver of the vehicle registration no KCY 977Y make Faw Class 3A permitted the said motor vehicle to be used on a road with a load greater than the load specified by carrying 39400 Kgs instead of 26000 Kgs plus a mobile allowance of 2000 Kgs thus an overload of 11400 Kgs.Count II: Emmah OtienoOn October 7, 2022 at around 1828 hrs at Kakamega – Kisumu road at Mbale Area Vihiga County being the owner of the vehicle registration no KCY 977Y make Faw Class 3A permitted the said motor vehicle to be used on a road with a load greater than the load specified by carrying 39400 Kgs instead of 26000 Kgs plus a mobile allowance of 2000 Kgs thus an overload of 11400 Kgs.

6. Sections 56 (1) and 58 (1) as well as rule 41 read as follows:-Sections 56 (1)“No vehicle shall be used on a road with a load greater than the load specified by the manufacturer of the chassis of the vehicle or than the load capacity determined by an inspector under this Act or as provided for under the East African Community Vehicle Load Control Act, 2013. ”Section 58 (1)“Any person who drives or uses on a road a vehicle in contravention of the provisions of section 55, 56 or 57 or in accordance with the East African Community Vehicle Load Control Act, 2013, 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, 56 or 57 or in accordance with the East African Community Vehicle Load Control Act, 2013, 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.”Rule 41 (2)A person who drives or uses on a road a vehicle in respect of which the weights set out in paragraph 2(1), (2) or (3) of the Twelfth Schedule are exceeded, shall as respects each overloaded axle or any excess over the maximum permitted weight, be guilty of an offence against section 58 of the Act, and shall, in respect of that offence, on convictions, pay a fine not less than the appropriate fine according to the following scale—

7. On revision, the court’s mandate in the case of a conviction and sentence, as is here, is to find for itself if the conviction or sentence passed is correct, legal or proper. The court in exercising these powers is not limited to the grievance of the parties. It is empowered to correct every error it discerns upon perusal of the file. The purpose is to ensure adherence to the law with a view to meeting the higher dictate under article 165 (7) of ensuring fair administration of justice.

8. Upon perusal of the file, the court has posed to itself the question whether there is an offence under the statutory provisions cited in the charge sheet called permitting the use of a motor vehicle on a public road while loaded with a load greater than the specified load. The court reads section 56, Traffic Act which limits the load on motor vehicles to criminalise usage of overloaded vehicles. The courts reads no creation of an offence of permitting or authorizing the use of a vehicle while overloaded.

9. It is a dictate of the Constitution that no person may be charged and convicted of an offence in respect of an act or omission that at the time it was committed or omitted was not an offence in Kenya or a crime under international law

10. It is the court’s finding that while sections 56 creates an offence of using a motor vehicle while loaded with a load greater than that specified as at the October 7, 2022, when the two files were brought to court, there was no offence of permitting the use of a motor vehicle to be used on public road while overloaded. Even the clarification by section 58 (2) extends the use to the person shown to be responsible for loading and maintenance of the vehicle. It does not create the offence of permitting use. For those reasons the conviction on the two counts of permitting use of a motor vehicle while carrying load greater than that specified, are quashed and sentence set aside. Let any fines paid by those two accused persons, Emma Atieno and Bernard Kirui be refunded to them forthwith.

11. How about the sentence imposed by the trial court? Is it amenable to disturbance on basis that there is a prescribed sentence?

12. Since the decision of the Supreme Court in Francis Karioko Muruatetu & Another Vs Republic[2017] eKLR, it is never debable that mandatory statutory sentences never hamstring the court in meting a sentence other than that prescribed by the statute. The court is left to exercise it decisional independence that includes the discretion to decide an appropriate penalty due to a convict. It is however the duty of the court while exercising such discretion to proffer reasons. It is of note that in their mitigation, all the four accused persons had no previous records and sought leniency on various personal grounds. In fact the owners of the trucks asserted having not allowed/permitted the vehicles to carry greater load than specified. If this court was to sit as the trial court, that was an averment that ought to have negated the plea of guilty. However, that is now of no effect for this court has found that the two were not properly charged and convicted.

13. In coming to the sentence it did impose, the trial court said:-“SentenceI have considered the offences, mitigation of the accused. I order as follows:-Accused 1: fined 15,000/= in default four (4) months.Accused 2: fined 15,000/= in default four (4) months.”

14. Clearly, there is no reason on record why there was departure from the prescribed sentences set to be arrived at with mathematical calculations. While the court was very free to depart from the prescribed sentence under section 58 and rule 41, it equally had a duty to give reasons for such departure. The need for reason is that a discretion to be judicious must be guided upon reason. Where there is no reason, the decision becomes difficult to distinguish from reprice or whim.

15. For reasons that there were no reasons to justify departure, I find that the discretion in sentencing was not properly exercised. For that improper exercise, the sentence is set aside. Set aside so that in terms of the provisions of section 364 (1) (a) as read with section 354 of the Criminal Procedure Code, remit this matter to the trial court for purposes of resentencing in accordance with the provisions of Section 58 of the Traffic Act and rule 41 of the Traffic Rules.

16. In coming to this conclusion the court takes into account that infrastructure development is one of the most expensive items in the Kenyan budget and the rationale for imposing heavy penalty is intended to protect our roads with those found to act towards destructions of the road being given deterrence sentences.

17. Let the file be transmitted to the trial court within seven (7) days for purposes of resentencing. Let the court files on revision be closed.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER 2022. PATRICK J O OTIENOJUDGEIn the presence of:Ms Chala for the applicantsNo appearance for the respondentCourt assistant: Polycap Mukabwa