[2015] KEHC 2740 (KLR)
The court found that the applicant was charged under non-existent statutory provisions for Count I, rendering the conviction and sentence unlawful. For Count II, although the sentence was within the law, the plea taking procedure was not properly followed as the facts were not read out to the accused, violating...
Source-derived case information.
- Citation
- [2015] KEHC 2740 (KLR)
- Parties
- Respondent: Republic; Applicant: Samson Otieno
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 27 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Revision
- Outcome
- conviction quashed and sentences set aside; accused at liberty unless otherwise lawfully held
- Judges
- BT Jaden
- Legal Topics
- Traffic Offences, Plea Procedure, Sentencing Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Samson Otieno
Applicant
Procedural Posture
Criminal Revision / Ruling on Revision
Legal Issues
- 1 Whether the applicant was properly charged under the correct statutory provisions for the offences alleged.
- 2 Whether the plea taking procedure complied with legal requirements.
- 3 Whether the sentence imposed was lawful and appropriate.
Ratio Decidendi
The court found that the applicant was charged under non-existent statutory provisions for Count I, rendering the conviction and sentence unlawful. For Count II, although the sentence was within the law, the plea taking procedure was not properly followed as the facts were not read out to the accused, violating established legal standards. These procedural and substantive errors prejudiced the accused and constituted a miscarriage of justice. Consequently, the court quashed the convictions and set aside the sentences for both counts, declining to remit the matter for fresh plea taking given the time already served and the status of the fine.
Court Disposition
conviction quashed and sentences set aside; accused at liberty unless otherwise lawfully held
Orders
- The convictions in both Count I and II are quashed.
- The sentences in both counts are set aside.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL REVISION NO. 27 OF 2015
REPUBLIC
VERSUS
SAMSON OTIENO ………………………..………..……….. APPLICANT
RULING ON REVISION
The application for the revision of the orders herein was made by J.N. Kimeu & Co. Advocates vide letter dated 23/2/2015.
The accused was charged in Count I with the offence of riding a motorcycle on a public road without an Insurance cover contrary to section 4 (1)as read with section 4 (2) of Traffic Act Cap 403 Laws of Kenya.
The particulars of the offence were that “on 19/2/2015 at about 8. 00 a.m. within Machakos Township in Machakos County being the rider of a motorcycle Reg. No. KMDA 778C Skygo rode the said motorcycle without an insurance cover”.
In Count II, the accused was charged with the offence of riding a motorcycle on a public road without a driving licence contrary to section 30 (1) as read with section 30 (7) of the Traffic Act Cap 403 Laws of Kenya.
The particulars of the offence were that “on 19/2/2015 at about 8. 00 a.m. within Machakos Township in Machakos County being the rider of a motorcycle Reg. No. KMDA 778C Skygo rode the said motorcycle without a driving licence”.
The accused pleaded guilty and was sentenced to a fine of Kshs.10,000/= in default three months imprisonment in each count.
There is no section 4 (1) and section 4 (2) of the Traffic Act Cap 403 Laws of Kenya. The same are non-existent. The accused ought to have been charged under the Insurance Motor vehicles and Third Party Risks Act Cap 405 Laws of Kenya in Count I.
I have considered the provisions of section 382 of the Criminal Procedure Code. However, the errors and omissions made herein may have prejudiced the accused.
Section 30 (7) Traffic Act provides for a fine of Kshs.20,000/= or imprisonment for a term not exceeding three months for a first conviction. The sentence of Kshs.10,000/= in default three months imprisonment in Count II is within the law.
The procedures for plea taking were not complied with. The facts were not read out to the accused (Seefor example Adan Vs Republic (1973) EA 445).
With the foregoing, I quash the conviction and set aside the sentence in both Count I and II. The accused was convicted and sentenced on 19/2/15. It appears the fine has not yet been paid. Taking into account the period already served, I will not remit the file back to the lower for fresh plea taking. The accused is therefore at liberty unless otherwise lawfully held.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 12thday of March 2015.
………………………………………
B. THURANIRA JADEN
JUDGE