Maiyo v Republic (Criminal (Traffic) Appeal E008 of 2026) [2026] KEHC 6737 (KLR) (19 May 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **TRAFFIC APPEAL NO. E008 OF 2026** **VINCENT KIPKEMEI MAIYO………………………………….……………APPELLANT** **VERSUS** **REPUBLIC…………………………….……………………………………..RESPONDENT** *(Being an appeal from the judgment of the Principal Magistrate's Court at Hamisi delivered on 17th March 2026 BY (The Honourable N. Moseti) in Hamisi Traffic Case No. E070 of 2022)* **BETWEEN** **REPUBLIC……………………………………………………………………RESPONDENT** **VERSUS** **VINCENT KIPKKEMEI MAIYO………………………………………………ACCUSSED** **Coram: Before Justice R. Nyakundi** **Cheptinga & Co. Advocates** **Leina Davies for the State** **RULING** 1. Before this Court is a notice of motion dated 23rd March 2026 expressed to be brought under Section 1A and 3A of the Civil Procedure Act, Order 42 rule 6(1) of the Civil Procedure Rules and all other enabling provisions of the law. the application seeks the following orders: 2. *Spent.* 3. *That this Honourable Court be pleased to grant and order of stay of execution of the Sentence delivered herein on 17th March 2026 that ordered for the suspension of the Applicant’s driving license for a period of three (3) years pending hearing and determination of this application inter-partes.* 4. *That this Honourable Court be pleased to grant an order of stay of execution of Judgment and/or sentence delivered on 17th March 2026 suspending the Applicant’s driving license for a period of 3 years pending the hearing and determination of the appeal filed herewith.* 5. *That costs of this application be provided for.* 6. The application is based on the following grounds: 7. *This Honourable Court delivered its judgment and sentence against the Applicant on 18th March 2026 in which the Court ordered the Applicant to pay a fine of Kshs. 130,000 each a fine for the two victims thereby making the lump sum payable to be Kshs. 260,000in addition to having his driver's license suspended for a period of three (3) years.* 8. *The Honourable Court did not grant a stay of execution of 30 days of the said judgment which is almost lapsing and the Applicant is about to lose his driving license for the next three years. The accused needs to have a valid driving license at any given time therefore any suspension as from two weeks to three years deprives him an opportunity to a standard of living and/or right to work.* 9. *The Applicants having been dissatisfied with the said judgment and sentence has lodged an appeal at the High Court on 23rd March 2026 and the same is registered as VIHIGA HIGH COURT TRAFFIC APPEAL NO..OF 2026.* 10. *The said appeal is yet to be heard and determined;* 11. *The Respondent has threatened to enforce the orders of the Court against the Applicant herein anytime which execution would cause the Applicant substantial harm and render the appeal already lodged nugatory.* 12. *The Applicant has already paid the fine of Ksh. 260,000 exclusive of other related and incidental costs and an additional penalty of having his driver's license suspended for a period of 3 years amounts to double punishment and exorbitant hence not reasonable* 13. *This Application has been brought without any unreasonable delay on the part of the Applicant.* 14. In support of the application is the annexed affidavit sworn by Milkah Cheptinga who deponed as follows: 15. *That I am the Appellant's advocate and well versed with the same hence competent to swear this Affidavit.* 16. *THAT this Honourable Court delivered its judgment against the Appellant on 17th March, 2026 for the sum of Ksh. 260,000 for the two victims and a suspension of the Appellant's driving license for a period of 3 years.* 17. *THAT the Honourable Court did not grant a stay of execution of the said judgment and the Respondent can enforce the judgment and sentence at any time to the detriment of my client.* 18. *THAT the Appellant having been dissatisfied with the said judgment and sentence lodged an appeal at the High Court in Vihiga* 19. *THAT the said appeal so lodged at the High Court is yet to be heard and determined.* 20. *THAT the Respondent has threatened to enforce the orders as against the Appellant herein anytime which execution would cause the Appellant substantial harm and render the appeal already lodged at the High Court nugatory* 21. *THAT the Appellant has already paid the fine of Kshs. 260,000 that was meted on him due to the demise of the two pillion passengers that died in the accident as a fine.* 22. *THAT the deceased families equally filed for a Road Traffic Accident in which they were awarded damages for the lose equally.* 23. *THAT the Appellant's source of income is through driving and the Appellant has two children who are under 18 years and they depend on him for school fees, food and other basic and thus by suspending his license for 3 years, his family has been condemned to abject poverty denied basic survival rights since his wife is not working.* 24. *THAT the Appellant is employed as a driver on a contractual basis whose contract is renewed annually since 2018 to date. That the employer cannot allow him to continue driving without a license and his employment stands to be terminated forthwith and he may also not get a renewal of his contract* 25. *THAT by the Court issuing a fine of Kshs. 260,000/= and proceeding to suspend the driver’s license of the Applicant for a period of three years is exorbitant and one made without due regard to the hard economic times, the socio- economic rights, the family dependency and without attention to the current judicial precedence.* 26. *THAT the decision by the Honourable to punish the Appellant by fining him and suspending his driver's license for a period of 3 years is exorbitant and unreasonable under the constitution and the current economic status of the families.* 27. *THAT this Application has been brought without any unreasonable delay on the part of the Applicant.* 28. *THAT this Honourable Court has the power to grant the orders sought herein in the interest of justice.* 29. In a twist of events which is unprecedented move the State and learned Counsel for the Applicant intended Appellant entered into a consent to compromise the application dated 23rd March 2026 with the following covenants in place: 30. *That the Honorable Court be pleased to grant an order of stay of execution of the sentence delivered herein on 17th March 2026 that ordered for the suspension of the Applicant’s driving license for a period of three (3) years pending hearing and determination of this application inter-parties.* 31. *That the honourable Court be pleased to grant an order of stay. of execution of Judgement and/or sentence delivered on 17th March 2026 that ordered for the suspension of the Applicant's driving license for a period of three (3) years pending hearing and determination of the appeal filed herewith*. 32. What this consent did was for the parties to the intended appeal to assume jurisdiction and authority which does not have the support of the law as coded in the Criminal Procedure Code Cap 75 of the Laws of Kenya. **Decision** 1. This is an appeal from the judgment of the Trial Magistrate Court at Hamisi delivered on 17th March 2026 by Hon. N. Moseti in Hamisi Traffic Case No. E070 of 2022. In that judgement the Learned Trial Magistrate ordered as follows; That the Respondent shall pay fine of Kshs 260,000 and a further order of suspending the use of the driving license for three years. 2. That the Respondent was aggrieved with the decision of the learned trial Magistrate and he therefore preferred an appeal through a memorandum of appeal dated 23rd March 2026 which states as follows: That: 3. *The Learned Magistrate erred in law and in fact by condemning Appellant to pay fine of Kshs. 130,000 for each victim of the accident and thereafter have the Appellant's driving license suspended for a period of 3 years.* 4. *The Learned Magistrate erred in law and fact in failing to appreciate that the fine already meted upon the Appellant is just and sufficient under the circumstances since the Appellant is a first time offender.* 5. *The Learned Magistrate erred by imposing double punishment upon the Appellant to wit a fine of Ksh. 260,000 and a suspension of the Appellant's driving license for a period of three years despite imposing the fine thereby denying him the right since he is employed as a driver the right to work, right to adequate standard of living and protection of means of subsistence contrary to Articles 6 and 11 of the International Convention on Economic Social and Cultural Rights.* 6. *The Learned Magistrate erred in law and in fact by failing to apply the relevant and pertinent judicial principles, precedents and trends arriving at the decision.* 7. *The learned magistrate ignored the accused defense specifically by expecting the accused to remember the vehicle registration number plate of the public service vehicle that obstructed him yet under the circumstances of the accident he would not be expected to recall this since the vehicle drove away.* 8. *The Learned Magistrate grossly misdirected himself by treating the evidence and submissions before him superficially and consequently punishing the Appellant twice without any basis in law or fact.* 9. *THE Learned Magistrate erred in fact by failing to appreciate that the driving license so impounded/ caveated is the sole source of income and the basis of employment of the Appellant and thus, denies him his only means of survival* 10. *The Learned Magistrate erred in law and in fact by failing to consider the mitigation submitted before him and more so, by failing to consider the fact that the Appellant is the sole bread winner of his family and relies on the driving license to fend for his family and thus the decision to suspend his license greatly prejudice and sabotage the socio economic rights of the Appellant.* 11. *The accused is not able to afford the repayment of the debt incurred of Kshs. 260,000/=being the Court fine besides the legal and other related incidental costs (double jeopardy). His salary is a meagre Kshs 46,938 before tax.* 12. *Reasons wherefore - the Appellant prays for Orders that:* 13. *The appeal be allowed and the Suspension of his driver's license be set aside and/or quashed forthwith* 14. *The costs of this Appeal be awarded to the Appellant.* 15. The Applicant has a both constitutional and statutory right to appeal to a superior Court to seek review of the judgement based on the well laid down procedure in the CPC under Part XI on Appeals from the subordinate Courts: ***347.*** *(1) Save as is in this Part provided—* *(a) a person convicted on a trial held by a subordinate Court of the first or second class may appeal to the High Court; and* *(2) An appeal to the High Court may be on a matter of fact as well as on a matter of law.* ***348.*** *No appeal on plea of guilty, nor in petty cases 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 or legality of the sentence.* ***348A.*** *(1) When an accused person has been acquitted on a trial held by a subordinate Court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate Court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.* *(2) If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.* ***349.*** *An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: Provided that the Court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the Appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the Court therefor.* ***350.*** *(1) An appeal shall be made in the form of a petition in writing presented by the Appellant or his advocate, and every petition shall (unless the High Court otherwise directs) be accompanied by a copy of the judgment or order appealed against.* *(2) A petition of appeal shall be signed, if the Appellant is not represented by an advocate, by the Appellant, and, if the Appellant is represented by an advocate, by the advocate, and shall contain particulars of the matters of law or fact in regard to which the subordinate Court appealed from is alleged to have erred, and shall specify an address at which notices or documents connected with the appeal may be served on the Appellant or, as the case may be, on his advocate; and the Appellant shall not be permitted, at the hearing of the appeal, to rely on a ground of appeal other than those set out in the petition of appeal:* *Provided that—* *(i) subject to the provisions of paragraph (ii), where, within five days of the date of the judgment or order appealed against, the Appellant or his advocate has applied to the subordinate Court which passed the judgment or made the order for a copy of the record of the proceedings before that Court, and where the appeal is entered within the period of limitation prescribed by section 349 but before receipt by the Appellant or his advocate of the copy of the record, the petition of appeal may be amended on notice in writing to the Registrar of the High Court and to the Director of Public Prosecutions and without leave of the High Court, within seven days of the receipt by the Appellant or his advocate of the copy of the record applied for;* *(ii) the provisions of paragraph (i) shall not apply where the petition of appeal is signed by an advocate who represented the Appellant in the proceedings before the subordinate Court appealed from;* *(iii) where a copy of the record of the proceedings before the subordinate Court appealed from is applied for by the Appellant or his advocate, the date of the receipt thereof by the Appellant or his advocate shall be certified to the High Court by the subordinate Court, and shall for the purposes of this subsection be deemed to be—* *(a) if the copy of the record is delivered otherwise than by post, the date of delivery; and* *(b) if the copy of the record is delivered by post, the date on which it is shown, on an advice of the delivery of a registered postal article issued under regulation 37(3) of the East African Postal Regulations, or any provision of law amending or replacing that regulation, to have been delivered, and no such copy of a record shall be delivered by post otherwise than by registered post; (iv) save as provided in paragraph (i), a petition of appeal may only be amended with the leave of the High Court and on such terms and conditions, whether as to costs or otherwise, as the High Court may see fit to impose;* *(v) notice in writing of an application for leave to amend a petition of appeal shall be given to the Registrar of the High Court and to the Attorney-General not less than three clear days, or such shorter period as the High Court may in any particular case allow, before the application is made; and an application for leave to amend a petition of appeal shall be made either at the hearing of the appeal or, if made previously, by way of motion in open Court* ***351.*** *Appellant in prison If the Appellant is in prison, he may present his petition of appeal and the copies accompanying it to the officer in charge of the prison, who shall thereupon forward the petition and copies to the Registrar of the High Court.* ***352.*** *(1) When the High Court has received the petition and copy under section 350, a judge shall peruse them, and, if he considers that there is no sufficient ground for interfering, may, notwithstanding the provisions of section 359, reject the appeal summarily:* *Provided that no appeal shall be rejected summarily unless the Appellant or his advocate has had the opportunity of being heard in support of the appeal, except—* *(i) in a case falling within subsection (2) of this section;* *(2) Where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the sentence is excessive, and it appears to a judge that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead him to the opinion that the sentence ought to be reduced, the appeal may, without being set down for hearing, be summarily rejected by an order of the judge certifying that he has perused the record and is satisfied that the appeal has been lodged without any sufficient ground for complaint.* *(3) Whenever an appeal is summarily rejected notice of rejection shall forthwith be given to the Director of Public Prosecutions and to the Appellant or his advocate.* 1. In the case at bar the judgment of the Trial Court is crystal clear and in precise language it states as follows at the very tail end: *Mitigation: The accused is remorseful. He is a father who has children and the wife does not work. The accused is not permanently employed. He works at Ampath and the accused's income is uncertain bearing in mind that the donor finding is not regular. I pray that the accused be considered for a non-custodial sentence or a fine of Kshs 80,000. The families of the two victims were compensated Kshs 900,000 each.* *Court: I have considered the accused's records and mitigation while bearing in mind that two lives were lost as a result of the accident. Accordingly, I hereby order that the accused do pay a fine of Kshs. 130,000 for each count in default to serve 2 years imprisonment for each count. The sentences shall run concurrently. Additionally, I hereby cancel his driving license for a period of 3 years effective from the date hereof. This order shall be served upon NTSA for implementation. R/A 14 days* 1. From this judgment any person who is aggrieved must follow the protocols of the law and the only Court which has power to suspend sentence of a convicted person within our legal system is the High Court which assumes jurisdiction upon the aggrieved offender preferring an appeal. 2. The sentence order/verdict duly imposed or issued by a constitutional organ competent and constituted to adjudicate criminal cases under Article 50(1) of the Constitution cannot be suspended or compromised by parties entering into a private agreement or consent like the above consent presumably signed and entered into by Leina Davies for the Director of Public Prosecution and the Learned Counsel of the Appellant Mr. Cheptinga. Sentencing is an integral component of the criminal justice process of the great Republic which is constitutional democracy espousing the rule of law within the tenets of the principle of governance a national value as articulated in Article 10 of the Constitution. Sentencing, including the authority to suspend a sentence, is the exclusive function of the Judiciary and its corresponding creature of Courts and not a power donated to the Advocates of the High Court or Prosecutors. While Prosecution Counsels can influence sentencing through plea negotiations or withdrawal of charges before judgment they cannot modify or suspend a sentence imposed by a Court. 3. The implementation of criminal justice has been the subject of human minds since the beginning of creation, and throughout history, the criminal law has faced different perceptions and reactions. The social reaction to the criminal phenomenon is essentially punitive in the form of security measures which leads to the realization of the objectives of the penalties. Providing these objectives will only be possible if the punishments are implemented with urgency and certainty. The suspension of the punishment enforcement is one of the powers that the Legislature has given the Judge with the aim of individualizing the punishment. By virtue of the Constitution and the CPC Cap 75 of the Laws of Kenya the Judge may with due observance of legal conditions suspend the enforcement of the sentence for a specified period of time. Essentially in law the possibility of suspending the execution of a penalty is an option that has been delegated to a Judge and beyond there is no right for any Advocate or Prosecutor to enter into a consent on suspension of punishment. The sentence Court as the one imposed by the Trial Magistrate against the charge of causing of death by dangerous driving contrary to Section 46 of the Traffic Act is the sanction imposed by law for a breach of the traffic rules under the Traffic Act in which the society looks upon the drivers in our road and highways to drive with due care and attention. That is why parliament has decreed any such breach of the traffic act like causing death by dangerous driving merits punishment. The legal conceptual framework of punishment as part of a constitutional democracy upholding the rule of law is that its imposition on the offender would deter others from committing crime and it will at the same time in some measure serve to rehabilitate the offender. In the context of the facts of this case I borrow a leaf from the learned authors Barnes and Teeters: in New Horizon in Criminology page 394 in which with great clarity they stated as follows: *It is plain that social revenge is the only honest, straightforward and logical justification for punishing criminals. The claim for deterrence is belied both by history and by logic. History shows that severe punishments have never reduced criminality to any marked degree. It is obvious to anyone who is familiar with the activities of criminals that the argument for deterrence cannot be squared with the doctrine of the very moral agency upon which the whole opinion of punishment is based. If a man is free to decide and is not affected by his experience he cannot be deterred from crime by the administration of punishment.* 1. This Court takes judicial notice that in our criminal justice system as governed by the Constitution and other applicable Statutes like the Criminal Procedure Code the sentence imposed by the trial Court is not necessarily the final disposition of any case. Each sentence may be a subject of review in three ways by: 2. The appeal’s Court 3. The exercise of the executive prerogative of mercy 4. The release under the provisions of the Probation of Offenders Act or Community Service Order Act. 5. It is safe to say that the consent order entered into by the DPP and Legal Counsel for the convict and intended Appellant appears to be both legally, factually, an arbitrarily exercise of authority and is not part of the constitutional and the statutory scheme on suspension of sentence. If these Courts were to adopt such consent it would be a violation of the law and exercise of discretion in excess of jurisdiction. The consent order is therefore null and void and not worthy the ink of the law, it cannot be practically enforced. Orders accordingly. **DATED & DELVERED AT VIHIGA THIS 19TH DAY OF MAY 2026.** **.......................................** **R. NYAKUNDI** **JUDGE**