https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11944

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CRIMINAL REVISION NO. E208 OF 2025** **ZEPIANO MBAISI…………………………………………………………APPLICANT** **VERSUS** **REPUBLIC……………………………………………………RESPONDENT** **RULING** 1. The Applicant was charged with 14 counts of the offence of driving without due attention to care and attention contrary to **Section 49(1) of the Traffic** **Act** in Eldoret CMCCRC E718 of 2025. The particulars of the offences, in a nutshell, were that on the 29th day of July, 2025 at about 0530 hrs. along Eldoret-Nakuru highway at Paradise junction area in Eldoret West within Uasin Gishu County, being the driver of motor vehicle registration number KDC 046E make Isuzu Tipper, without due care and attention to other road users failed to give way and hit motor vehicle registration number KDC 837T make Toyota Hiace occasioning various degrees of injuries ranging from slight injuries to serious injuries to all the 14 occupants of the aforementioned matatu. 2. The applicant pleaded guilty and the facts were read to him in Kiswahili, to which he confirmed and pleaded guilty and was sentenced to pay a cumulative fine of Kshs. 419,667/- in default to serve 6 months’ imprisonment on each count. By way of a Notice of Motion dated 1st September 2025, the Applicant seeks the following orders; 3. **Spent.** 4. **Spent** 5. **The Honorable court be pleased to call for and examine the record of the proceedings and orders made on 29th August 2025 in Eldoret CMCCR Traffic case no. E718 of 2025 for the purpose of satisfying itself as to the correctness legality or propriety of the said orders and the regularity of the court proceedings.** 6. **The conviction and sentence on 14 counts were illegal and improper since section 49(1) of the traffic Act Cap 403 Laws of Kenya creates a single offense based on the manner of driving.** 7. **Quash the multiple convictions and set aside the sentences and set the applicant forthwith free and at liberty.** 8. **In the alternative and without prejudice to the foregoing, substituted thereof a single conviction of one count of careless driving (if at all) with an appropriate lawful sentence.** 9. **The Honorable court do issue further or alternative orders it deems just and fit to grant in the circumstances.** 10. The Application is expressed to be brought under **Articles 29, 49(1)(h), 50(2), 165(6) & (7) of the Constitution of Kenya, Sections 362,363 & 364 of the Criminal Procedure Code,** and ‘all other enabling provisions of the law’. 11. In the affidavit in support of the Application, the Applicant deposed that he was charged with 14 counts of the offence of driving without due care and attention contrary to **Section 49(1) of the Traffic Act** in Eldoret CMCCRC E718 of 2025 and as he was not legally represented, he ended up pleading guilty, and was sentenced in each count and asked to pay a cumulative fine of Kshs.419, 667/= in default of which he would serve imprisonment. 12. He urged that the conviction and sentence are illegal, incorrect and improper for various reasons to wit; The charge sheet is fatally and incurably defective in that it split a single act of careless driving into 14 separate charges contrary to the rule against duplicity of charges. 13. **That Section 49, (1) of the Traffic Act Cap 403** Laws of Kenya creates a single offence based on the manner of driving, and not multiple offences based on the number of passengers in a motor vehicle; and, that by convicting and sentencing the Applicant on 14 counts for one transaction, the trial court exposed him to double jeopardy. He deposed that it is in the interest of justice that the decision of the trial court be revised and he set free or, in the alternative, the trial courts’ discretion be substituted with a single lawful conviction and sentence. 14. Further, that even though he pleaded guilty, a guilty plea cannot cure a fatally defective charge. He prayed that the court exercises its supervisory powers under **Sections 362 & 364 of the Criminal Procedure Code Cap 75** Laws of Kenya and revise the conviction and sentence or in the alternative substitute the trial court's decision with a single lawful conviction and sentence. **Applicants’ submissions** 1. Learned Counsel for the Applicant submitted that the reviewing jurisdiction of this Court is provided for under **Section 362 of the Criminal Procedure Code**. He additionally cited **Articles 165(6) and (7) of the Constitution** and urged that the court had the power to call for the record of the trial court to aid in determining whether the impugned conviction and sentence imposed upon the Applicant was irregular or the subject of impropriety. 2. Counsel urged that the conviction and sentence on 14 counts was improper. That the terms upon which **Section 49(1) of the Traffic Act** are couched are peculiar to any other offence created by other provisions including the Penal Code. He submitted that in the offence of murder, for example, an accused person is criminally liable for each and every person that dies as a result of his malicious actions. On the other hand, a person is criminally liable to an offence of driving without due care and attention whether his actions end up with victims or not. 3. That taking for instance that there is no victim or any damaged property caused as a result of driving without due care and attention, it is the prosecution’s case that the offender is not responsible criminally because there is no injured person. Thus if the accident ends up destroying 10 cars and 3 houses, the offender should be charged with 13 counts of offence. That this argument by the prosecution does not reflect the true intent of **Section 49(1) of the Traffic Act,** and that is why the prosecution juxtaposes it with **Section 203 of the Penal Code.** 4. He cited **Section 49(h) of the Act** and urged that it is categorical that such a person who drives without due care and attention is guilty of ‘an offence’. That in any criminal proceeding, each count is a separate offence in a charge sheet and if the offence of driving without due care and attention is split into different counts, it will end up with more than one offence thus defeating the provisions of **Section 49(1) of the Traffic Act.** 5. On whether a plea of guilty in a fatally defective for reasons that the charge is a nullity, Counsel urged that the Appellants’ plea was a nullity citing the decision on **Korir vs Republic (Criminal Appeal No. E021 of 2023 (2025) KEHC 9778 KLR.** He reproduced the holding of the trial court, urging that the court did not agree with the prosecutions’ argument on 2nd July 2025. Counsel urged that the argument that the Applicant pleaded guilty to the defective charge is as good as the defective charge itself and should fall with it. 6. Counsel urged that this court is duty-bound to consider whether the findings by the subordinate court are correct, regular, proper and legal. This means that the test is a four-tier on the basis of correctness, legality, regularity and properness. He urged the Court to allow the application as prayed. **Respondents’ submissions** 1. Counsel for the state placed reliance on **Section 348 of the Penal Code** urging that it provides that no appeal shall be allowed in the case where an accused person has pleaded guilty to an offence and has been convicted on that plea by a subordinate court, except as to the extent or legality of that sentence. He cited the case of **Fredrick Kiplangat Mutai vs R Cr App E026/22** in support of this submission. 2. He urged that further, the procedure for plea under **Section 207(1) and (2) of the CPC** was fully complied with as the charges were read out to him in Kiswahili, a language he understood, the facts read out and he admitted to the same. Counsel posited that **Section 49(1) of the Traffic Act Cap 403** Laws of Kenya provides that an offence of driving without due care and attention is liable to a fine not exceeding Kshs. 100,000/- or to imprisonment for a term not exceeding 1 year, or both. 3. He stated that a person who has been convicted for 14 counts and fined an average figure of Kshs. 29,997/- per count as against a maximum of Kshs 100,000/- cannot be deemed to have been improperly and illegally fined. On the issue of being charged with an unlawful number of counts in one charge sheet, Counsel cited the decision of the Court of Appeal sitting at Malindi in **Republic vs Mackenzie & 30 Others (Criminal Appeal E029 of 2024) [2025] KECA 665 (KLR)**. 4. Therein, the court agreed with the Prosecutions decision to charge the accused person with 179 counts of murder and affirmed that limiting the same to a mere 12 counts would potentially occasion miscarriage of justice and exclusion of the rest of the victims would lessen the gravity of the charges. He urged the court to dismiss the averment that the 14 counts were unlawful since the complainants herein were 14 in number each suffering distinct injuries occasioned by the applicant who admitted to his fault and was rightly convicted. Counsel therefore urged the court to dismiss the application and uphold both the conviction and sentence, and the subsequent orders for deportation be upheld. **Analysis & Determination** 1. Having considered the application as well as the submissions made it is my opinion that the following issues arise for determination; 2. **Whether the court can exercise its Revisionary Jurisdiction in the instant case.** 3. **Whether the charge as framed with a total of 14 counts is proper and legal** 4. The High Court’s power of revision is set out in **Article 165 of the Constitution** as follows; **(6) The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but over a superior court.** **(7) For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.** 1. **Section 362 of the Criminal Procedure Code** provides; **The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.** 1. In light of the above provision, I am satisfied that the court has the requisite constitutional and statutory jurisdiction and mandate to proceed with the Application for revision. That said, in the instant case, the court notes that the Applicant’s grievance is not so much with the plea taking process, but with manner in which the charges were framed in the sense that out of a single act of wrongdoing, the Applicant was charged with a total of fourteen (14) counts as already herein summarized. This then leads to the issue of whether the charge as framed with a total of 14 counts is proper and legal 2. The relevant provision of **Section 49(1) of the Traffic Act** under which the Applicant herein was charged is as hereunder; **Driving without due care and attention** **(1) Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable—** **(a)for a first offence, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings;** **(b)for a second or subsequent offence, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings,** 1. The emphasis as I have underscored above on whether such a person is guilty of an offence or is guilty of several offences is actually the crux of the matter in the Applicant herein seeking that the sentences herein imposed be reviewed. **Section 135 of the Criminal Procedure Code** provides for the joinder of counts in a charge as follows; 2. **Any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.** 3. **Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.** 4. In the case of **Republic v Mackenzie & 30 others (Criminal Appeal E029 of 2024) [2025] KECA 665 (KLR) (11 April 2025) (Judgment)**, cited and relied upon by the Counsel for the State, the Court of Appeal considered the judgement of the High Court where the court had held that the charge sheet was overloaded for having 191 Counts. The learned justices of Appeal held thus; **In view of the foregoing, we do not see how this case can be termed complex on account of the perceived “overload” of counts. The very fact that the appellants jointly face one charge of murder allegedly perpetrated by means of the same series of acts or transactions dispels the respondents’ fear that the trial would prejudice them. While the learned Judge correctly identified the general principles and factors that call for joinder of counts or offenders, or for the severance of counts, we form the respectful view that she was at fault in applying the wrong tests or principles to the circumstances of this case; and in faulting the joinder of the 191 counts in the information.** 1. It was submitted in the **Mackenzie case** herein cited that general rule under **Section 135(1) of the Criminal Procedure Code,** is that offenses founded on the same facts, or form, or are part of a series of offences of the same or a similar character, ought to be charged together. That more specifically, each offense should, by dint of **Section 135(2) of the CPC,** be described and set out in a separate charge called a count, the underlying policy being to enhance the effective and efficient administration of justice while promoting the right to a fair hearing. 2. In finding this submission to be instructive and guided by the above cited statutory provision and case law, it is my considered opinion that by dint of the fact that the offence as charged in the 14 separate counts is founded on the same facts, and form and are part of a series of offences of the same and similar character similar character does not in essence, *prima facie,* offend the provisions of **Section 135(1) of the CPC**. In this regard and relying on the **Mackenzie case (supra),** it would be correct to say that the said charges as framed are not defective to warrant the setting aside of the conviction and sentence. 3. That said however, it is important that the court proceeds and considers the submission made on behalf of the Applicant in impugning the decision to base each count on each of the 14 passenger that were in the motor vehicle registration number KDC 837T that the Applicant’s motor vehicle KDC 046E hit and thus the accident. Counsel submitted that under the said Section 49(h) of the Act it is categorical that such a person who drives without due care and attention is guilty of *‘an offence’*. Counsel further submitted *inter alia*, as already herein summarized, that in any criminal proceeding, each count is a separate offence in a charge sheet and if the offence of driving without due care and attention is split into different counts, it will end up with more than one offence thus defeating the provisions of Section 49(1) of the Traffic Act. 4. **Section 348 of the CPC** provides as follows on appeals wherein an Appellant/Applicant had pleaded guilty before the trial court **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.** 1. Further, **Section 382 of the CPC** provides as follows on the circumstances under which a finding or sentence of the trial court can be reversed. **Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:** **Provided that in** **determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.** 1. The court shall therefore proceed to consider whether the charge as framed with a total of 14 counts was proper and legal or whether as framed, the same was irregular, and whether the extent that the said irregularity, if at all, occasioned a failure of justice to the Applicant. 2. This raises a distinct and logically anterior question recognised in comparative criminal jurisprudence as the unit of prosecution doctrine, and together with its Southern African common-law counterpart, the doctrine against the splitting of charges. 3. The unit of prosecution doctrine holds that where a penal statute creates an offence without specifying whether the countable unit is the act, the transaction, or the person affected, a court called upon to determine how many offences arise from a single course of conduct must first ascertain, as a matter of statutory construction, what the legislature intended. 4. This common law doctrine as developed by the courts of Southern Africa have and can be applied directly to road traffic legislation, was discussed in the case of **S v Matimba 1989 (3) ZLR 173(S)** wherein the High Court of Zimbabwe held that it was improper to split charges by treating breaches of distinct statutory duties under road traffic legislation, arising from a single incident, as separate offences. 5. From a plain reading of **Section 49(10 of the Traffic Act** under which the Applicant was charged it is clearly apparent that the basic and primary material that is particular to the offence is the manner of driving. It therefore counts offences by occasion of the substandard driving complained of and not by the number of persons who suffer as a consequence of the offenders’ action. 6. The offence is therefore complete the moment that the standard of driving is not met, and its completion does not depend on whether, or how many, other road users happen to be affected. This is reinforced by the graduated penalty structure in paragraphs (a) and (b) of the same said **Section 41 of the Act** where the section escalates penalty by reference to whether the accused is a first or a second or subsequent offender. 7. Additionally, it is significant to note that the section, in defining the offence, makes no reference to any victim, injury, or consequence. This, in my very well considered opinion, denotes the fact that the offence is complete upon proof of the quality of the driving itself. It is in this regard a conduct-based offence, and not a result-based one. 8. This stands in marked contrast to **Section 46** of the same Act for example, which criminalizes causing death by dangerous driving which is, by its own terms, defined by reference to “the death of another,” and to the offence of murder under **Section 203 of the Penal Code, Cap. 63, Laws of Kenya,** which is similarly defined by reference to the death of a particular individual. 9. In light of the above, it follows then that where the legislature intends that an offence be defined by reference to the number of victims, it says so expressly. This interpretation of the statute relevant to any offence, is further reinforced by the provision of **Section 203 of the Penal Code** which creates the offence of murder. This Section provides that any person who of malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder. Here, each death is a separate factum of the offence which is in contrast with **Section 49(1) Traffic Act**, which contains no such language. 10. It follows therefore, that a proper construction of **Section 49(1),** **Traffic Act** would then lead to the reasonable conclusion that the applicant’s manner of driving on the single occasion particularized in the charge sheet should have constituted one offence, not fourteen. 11. The number of occupants of the motor vehicle struck, and the varying degrees of injury each sustained, are facts which are relevant to sentence, as they go to the gravity and consequences of the single act of careless driving and, separately, to any civil claims the occupants may bring. They cannot be construed as separate and distinct essential elements creating fourteen separate and distinct offences under the **Traffic Act.** 12. The above being the case, the reliance placed by the State on **Republic v Mackenzie &30 Others (Criminal Appeal E029 of 2024) [2025] KECA 665 (KLR)** is a misapprehension of the law for reasons that to the extent that a single act of careless driving is then replicated into 14 different counts based on the number of persons injured by dint of that one act is not a proper construction of the provisions of **Section 49(1) of the Traffic Act**. 13. The Mackenzie case to that extent, is therefore distinguishable, and hence not applicable for reasons that it concerned 191 counts of murder, an offence which as has been illustrated above, is defined by reference to the death of a specific person and each death is therefore, in law, a discrete and separate offence. 14. Consequently, the charging, convicting, and sentencing the applicant fourteen times for what is properly a single offence is not an overloaded of the charge sheet properly so understood in the same manner as in the **Mackenzie case** where the issue was too many genuine counts for a court or accused to fairly manage, but an impermissible replication multiplication of conviction and punishment for a single wrong. This in my view is precisely the harm which **Article 50(2)(o) of the Constitution** and the double jeopardy principle guard against, even where as in this case, the replication and multiplication occurs within a single trial rather than across successive prosecutions. 15. Further guidance on this issue is found in the case **Mugambi v Republic (Criminal Appeal E121 of 2023) [2025] KEHC 1366 (KLR),** which the court finds to be highly persuasive, and it shall therefore be guided by. The case concerned a single traffic incident of causing the death of nine persons and injury to five others. In its judgement the court while citing **Francis Karanja Mwangi v Republic [2019] eKLR** observed that the law on the offence of causing death by dangerous driving recognizes the offence as the dangerous driving not killing people by dangerous driving, as would make material the number of people killed. 16. That the offence is the causing death by dangerous driving and it consequently does not matter how many deaths occur. (**See also Atito v. R (1975) EA 278** cited in **Charles Muriuki Wahome v. R. Nairobi HCCRA No. 140 of 2015 (2017) eKLR**). The laying of 11 charges of causing death by dangerous driving in the cited case was found to be legally improper, on the principle of law that “no man should be punished twice for the same offence”. The court found that the charge ought to have been one, only of causing death (of the named persons) by dangerous driving. 17. I have considered the provisions of **Section 348 of the Criminal Procedure Code,** relied upon by the respondent. That section bars an appeal against conviction following a guilty plea save as to extent or legality of sentence. A plea of guilty, however, cannot also cure a charge that is primarily and fundamentally flawed and fatally defective. 18. An accused can properly be taken to have admitted the facts and his guilt of the offence as charged, but that plea of guilt by itself, however meticulously taken, and in complete compliance with the provisions of **Section 207 of the Criminal Procedure Code** and the guidelines set out in the taking of an unequivocal plea as set out in the *locus classicus* of **Adan v Republic** cannot cure the fundamental defect in such a charge. 19. It follows therefore that the legality of a sentence, meted out upon an offender by dint of a plea of guilt premised upon such a defective charge, is a sentence whose legality is compromised, and which is therefore capable of challenge, and stands to legal scrutiny as provided under the same said **Section 348 of the CPC** herein cited. 20. Over and above this, **Section 382 of the CPC**, bars interference on revision or appeal with a finding, sentence or order for an error, omission, or irregularity in the charge or proceedings unless it has occasioned a failure of justice. In this instance, the court has already demonstrated and satisfied itself that there was indeed a failure of justice in this case, firstly by the manner in which the one offence of careless driving was replicated and multiplied to create 14 different counts of the same singular offence as already herein summarized. 21. Further to this, the court notes that the maximum fine prescribed for a first offence under the said **Section 49(1)(a) Traffic Act** Kshs. 100,000/=. The applicant herein was fined a cumulative total of Kshs. 419,667/= across the fourteen counts which is more than four times what a single, correctly framed count should lawfully have attracted on a first offence. 22. The gravity of this injustice occasioned can only be appreciated if the fact of what the fine for a second or subsequent offence entails. The applicable ceiling is Kshs. 200,000/=. In this regard, it is clearly apparent that the cumulative fine imposed exceeded this amount. 23. Having taken all the issues raised as being for determination as discussed in my summation herein, it is my very well considered conclusion that a sentence substantially in excess of the maximum lawfully available for the single offence actually committed is, without more, a failure of justice within the meaning of **Section 382 Criminal Procedure Code**, independent of the constitutional and statutory defect in the charge itself. 24. In this regard, it is my finding that **Section 49(1) of the Traffic Act** creates a single offence defined by the manner of driving, not a discrete offence per person affected by that manner of driving on any given occasion. 25. It is also my further finding that the charge sheet in Eldoret CMCCRC E718 of 2025 insofar as it split the single act of careless driving into fourteen counts of thereby causing harm, was defective, not by reason of duplicity properly so called, nor by reason of misjoinder under **Section 135 of the Criminal Procedure Code,** but by reason of impermissible replication and therefore multiplication of a single offence, resulting in exposure of the Applicant to double jeopardy contrary to **Article 50(2)(o) of the Constitution.** 26. Therefore, in the exercise of the revision jurisdiction of this court, I now hereby issue the following orders: * + 1. **That the convictions founded on thirteen out of the fourteen counts as charged, being counts two (2) to fourteen (14), imposed upon the Applicant for the offence of driving without due care and attention contrary to Section 49(1) of the Traffic Act are hereby quashed and set aside and substituted with a single conviction on one count one (1) only being the first count as charged.** 2. **That the sentences imposed by the Trial Court *to wit* a fine of Ks. 29, 997/- in default to serve six (6) months imprisonment on each of the 14 counts, which by dint of the fine imposed would then run consecutively, bringing the total fine to a cumulative sum of Kshs. 419,667/= and the imprisonment term attendant thereto, in default, is now hereby set aside and** 3. **That the said sentence is now hereby substituted with a fine of Ksh.100, 000/= in default 6 months’ imprisonment on count 1.** 4. **That the Applicant is to be released forthwith unless otherwise lawfully held** **e) Right of Appeal 14 days** **Read dated and Signed Virtually at BUNGOMA on 30th July 2026** **E. OMINDE** **JUDGE**