Ruling in CriRev App E013 of 2026
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL REVISION APPLICATION NO. E013 OF 2026
BETWEEN
CHARLES KASIBANTE………………………………………APPLICANT
VERSUS
(ODPP) BUSIA ……………………………………..………….…….REPUBLIC
RULING
1. Before me is An Application for revision by way of letter Applicant was convicted and sentenced on his own plea of guilty in Busia CM’ Court TR/ No. E291 of 2026.
2. The Applicant had been charged with 3 charges as follows;
a) Count I: Failing to Maintain Parts and Equipment Contrary to Section 55(1) As Real with Section 58(1) of the Traffic Act Cap 403 Laws of Kenya. That, on the 16 th July, 2026, at around 9.00AM along Busia -Kisumu Road within Busia County being the driver of motor vehicle Reg. NO UBA 150Z/UAX705M Make Scania did drive the said motor vehicle on the said public road while fitted with faded chevrons .
b) Count II : Operating A Commercial Motor Vehicle While Fiffed With Reflective Materials Contrary to Rule 30(2) As Read with Rule 69 of the Traffic Act Cap 403 Laws of Kenya. That, on the 16th day of JULY, 2026 at around 8:30AM along Busia Kisumu Road within Busia County being the driver of motor vehicle Reg. No. UBA 150Z/ UAX705M Make SCANIA he did drive the said motor vehicle on the said public road while fitted with Reflective materials on the windscreen and both windows .
c) Charge 3: Failing to Maintain Parts and Equipment Contrary to Section 55(1) As Read with Section 58(1) of the Traffic Act Cap 403 Laws of Kenya. That on the 16th day of JULY, 2026 at around 07.30AM along Busia Kisumu Road within Busia County drove motor vehicle Reg. No. UBA 150%/UAX 705M Make SCANIA on a public road while fitted with torn seats .
3. The Applicant was convicted and sentenced to a fine of kshs 50,00 on count 1 in default 1-month imprisonment, plus a fine of kshs 10,000/- in default two (2) months imprisonment and a fine of kshs 150,000/- in default, two (2) months imprisonment the sentences are to run concurrently.
4. Application is predicated the severity of the fine imposed which is termed as harsh.
5. The Court had Certified the Application as Urgent, a judge matter, dispensing with service and or any further arguments and called for the lower court file for review.
ANALYSIS AND DETERMINATION
6. This Court’s Revision Jurisdiction flows from Article 165(6) of the Constitution and Sections 362- 367 of the Criminal Procedure Code.
7. Article 165 (6) expressly provides that the supervisory jurisdiction of the High Court is limited to supervision of the subordinate courts, and tribunals and would only constitute evaluation to ensure the correctness, legality, or propriety of any finding, sentence, or order.
8. Article 165(7) of the Constitution empowers this court upon review to may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
9. Section 362 of the Criminal Procedure Code empowers this Court to 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.
Section 364 (1) a), and b), of the Criminal Procedure Code empowers the court upon review in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence and in the case of any other order other than an order of acquittal, alter or reverse the order.
10. A plea of the guilty must be unequivocal, the facts upon which the charge is founded must be given for the accused to admit or deny the same as was emphasized by the Court of Appeal for East Africa in the celebrated in the case of Adan –Vs- Republic [1973] E A 447
11. Article 50 of the Constitution guarantees an accused person right to hearing. It provides as follows:
“50(2) Every accused person has the right to a fair trial, which includes the right-
(g) to choose, and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly”.
12. Section 58 of the Traffic Act provides for the Penalty for improper condition or overloading
(1) Any person who drives or uses on a road a vehicle in contravention of the provisions of section 55 or section 56 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 or 56 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.
(2) For the purposes of subsection (1), any person who is shown to the satisfaction of the court to be responsible for the maintenance of the vehicle, and any person who is shown to the satisfaction of the court to have been responsible for the loading of the vehicle, shall be deemed to have used the vehicle on the road.
(3) (a) In any case where a motor vehicle or trailer is twice or more times, in a period of twelve months, the subject of a successful prosecution under any of the provisions of sections 55 and 56, the court shall, unless for special reasons to be recorded it decides otherwise, order the Authority to suspend the licence of such vehicle for a period of two years. The Authority shall thereupon suspend the licence of the vehicle for such period, and the owner of the vehicle shall return the licence of the vehicle to the Authority, who in no case shall issue another licence in respect of such vehicle until the termination of the period of suspension.
(c) No vehicle licence shall be returned or new licence granted in respect of a vehicle whose licence has been so suspended unless an inspector certifies that the vehicle is fit in all respects for use upon the road.
(4) When a vehicle license has been suspended under subsection (3) no refund of license fee shall be made.
13. The Applicant in this instance is a driver employed to drive a transit haulage vehicle at a salary, he is not the owner of the aforesaid motor vehicle, while the penalty prescribed is of a misdemeanor the rules are yet to prescribe the scale, or different scales for first offenders, and for second or subsequent offenders, within a prescribed period thereby leaving a wide margin of discretion to the judicial officer.
14. This court has time and again emphasized that, an accused be informed of this right to legal representation promptly. In the case of Karisa Chengo v Republic Criminal Appeal 44 of 2019 of the courtheld that:-
“the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more”.
15. The Applicant pleaded Guilty, the Prosecutor was invited to provide the fact and in response he indicated “facts as per the charge-sheet”, the prosecutor proceeded to produce photographs of the motor vehicle collectively produced as exhibits 1’. The was applicant was never invited to confirm or deny whether the facts were true.
16. The accused was invited to offer mitigation of which he stated;
“I apologize to the court”
17. My Review reveals the following;
a) The accused was unrepresented by an advocate.
b) The accused was not forewarned or cautioned while pleading guilty
c) The torn seats, faded chevrons, and having Reflective materials on the windscreen and both windows are minor traffic infractions that would attract a penalty commensurate with the offence.
d) The failure to present facts to the court deprived the court an opportunity to impose a commensurate penalty
e) The fine as imposed would ensure the Applicant opting for the imprisonment as the amounts imposed are prohibitive.
f) The accused was not afforded any benefit of being a first offender
18. Disturbing or interfering with an exercise of judicial discretion is limited as was held in the case of Ogolla S/o Owuor v R {1954} EACA 270 in holding, that:
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. for this Court to interfere it must be shown that in passing the sentence, the sentencing Court took into account an irrelevance factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.” (See also Sayeka v R {1989} KLR 306)
19. The observation by this court how plea was taken, explicitly manifests
Serious shortcomings including contravention of the constitutional right of the accused, an equivocal plea was entered, disregard of material factors by the trial court, disregard of mitigation and imposition of fine amount that is prohibitive and not commensurate with the offence.
20. I am thus persuaded that the conviction and sentence-imposed warrant interference.
21. The Applicant’s concern in review is on the monetary fine imposed and as such the court accordingly sets-aside the sentence imposed in Busia CM’ Court TR/ No. E291 of 2026 and substitutes the same as follows;
i. Count I
The Accused shall pay a fine of Kshs 10,000/- upon default an imprisonment of one month.
ii. Count II
The Accused shall pay a fine of Kshs 15,000/- upon default an imprisonment of Two months.
iii. Count III
The Accused shall pay a fine of Kshs 15,000/- upon default an imprisonment of Two months.
It is So Ordered
Signed, Delivered Virtually on Teams platform
On this 22 ND day of July, 2026
________________________
Mohochi S.M
JUDGE
2
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CRIMINAL REVISION APPLICATION NO. E013 OF 2026
BETWEEN
CHARLES KASIBANTE………………………………………APPLICANT
VERSUS
(ODPP) BUSIA ……………………………………..………….…….REPUBLIC
RULING
1. Before me is An Application for revision by way of letter Applicant was convicted and sentenced on his own plea of guilty in Busia CM’ Court TR/ No. E291 of 2026.
2. The Applicant had been charged with 3 charges as follows;
a) Count I: Failing to Maintain Parts and Equipment Contrary to Section 55(1) As Real with Section 58(1) of the Traffic Act Cap 403 Laws of Kenya. That, on the 16 th July, 2026, at around 9.00AM along Busia -Kisumu Road within Busia County being the driver of motor vehicle Reg. NO UBA 150Z/UAX705M Make Scania did drive the said motor vehicle on the said public road while fitted with faded chevrons .
b) Count II : Operating A Commercial Motor Vehicle While Fiffed With Reflective Materials Contrary to Rule 30(2) As Read with Rule 69 of the Traffic Act Cap 403 Laws of Kenya. That, on the 16th day of JULY, 2026 at around 8:30AM along Busia Kisumu Road within Busia County being the driver of motor vehicle Reg. No. UBA 150Z/ UAX705M Make SCANIA he did drive the said motor vehicle on the said public road while fitted with Reflective materials on the windscreen and both windows .
c) Charge 3: Failing to Maintain Parts and Equipment Contrary to Section 55(1) As Read with Section 58(1) of the Traffic Act Cap 403 Laws of Kenya. That on the 16th day of JULY, 2026 at around 07.30AM along Busia Kisumu Road within Busia County drove motor vehicle Reg. No. UBA 150%/UAX 705M Make SCANIA on a public road while fitted with torn seats .
3. The Applicant was convicted and sentenced to a fine of kshs 50,00 on count 1 in default 1-month imprisonment, plus a fine of kshs 10,000/- in default two (2) months imprisonment and a fine of kshs 150,000/- in default, two (2) months imprisonment the sentences are to run concurrently.
4. Application is predicated the severity of the fine imposed which is termed as harsh.
5. The Court had Certified the Application as Urgent, a judge matter, dispensing with service and or any further arguments and called for the lower court file for review.
ANALYSIS AND DETERMINATION
6. This Court’s Revision Jurisdiction flows from Article 165(6) of the Constitution and Sections 362- 367 of the Criminal Procedure Code.
7. Article 165 (6) expressly provides that the supervisory jurisdiction of the High Court is limited to supervision of the subordinate courts, and tribunals and would only constitute evaluation to ensure the correctness, legality, or propriety of any finding, sentence, or order.
8. Article 165(7) of the Constitution empowers this court upon review to may make any order or give any direction it considers appropriate to ensure the fair administration of justice.
9. Section 362 of the Criminal Procedure Code empowers this Court to 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.
Section 364 (1) a), and b), of the Criminal Procedure Code empowers the court upon review in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence and in the case of any other order other than an order of acquittal, alter or reverse the order.
10. A plea of the guilty must be unequivocal, the facts upon which the charge is founded must be given for the accused to admit or deny the same as was emphasized by the Court of Appeal for East Africa in the celebrated in the case of Adan –Vs- Republic [1973] E A 447
11. Article 50 of the Constitution guarantees an accused person right to hearing. It provides as follows:
“50(2) Every accused person has the right to a fair trial, which includes the right-
(g) to choose, and be represented by an advocate, and to be informed of this right promptly.
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly”.
12. Section 58 of the Traffic Act provides for the Penalty for improper condition or overloading
(1) Any person who drives or uses on a road a vehicle in contravention of the provisions of section 55 or section 56 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 or 56 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.
(2) For the purposes of subsection (1), any person who is shown to the satisfaction of the court to be responsible for the maintenance of the vehicle, and any person who is shown to the satisfaction of the court to have been responsible for the loading of the vehicle, shall be deemed to have used the vehicle on the road.
(3) (a) In any case where a motor vehicle or trailer is twice or more times, in a period of twelve months, the subject of a successful prosecution under any of the provisions of sections 55 and 56, the court shall, unless for special reasons to be recorded it decides otherwise, order the Authority to suspend the licence of such vehicle for a period of two years. The Authority shall thereupon suspend the licence of the vehicle for such period, and the owner of the vehicle shall return the licence of the vehicle to the Authority, who in no case shall issue another licence in respect of such vehicle until the termination of the period of suspension.
(c) No vehicle licence shall be returned or new licence granted in respect of a vehicle whose licence has been so suspended unless an inspector certifies that the vehicle is fit in all respects for use upon the road.
(4) When a vehicle license has been suspended under subsection (3) no refund of license fee shall be made.
13. The Applicant in this instance is a driver employed to drive a transit haulage vehicle at a salary, he is not the owner of the aforesaid motor vehicle, while the penalty prescribed is of a misdemeanor the rules are yet to prescribe the scale, or different scales for first offenders, and for second or subsequent offenders, within a prescribed period thereby leaving a wide margin of discretion to the judicial officer.
14. This court has time and again emphasized that, an accused be informed of this right to legal representation promptly. In the case of Karisa Chengo v Republic Criminal Appeal 44 of 2019 of the courtheld that:-
“the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more”.
15. The Applicant pleaded Guilty, the Prosecutor was invited to provide the fact and in response he indicated “facts as per the charge-sheet”, the prosecutor proceeded to produce photographs of the motor vehicle collectively produced as exhibits 1’. The was applicant was never invited to confirm or deny whether the facts were true.
16. The accused was invited to offer mitigation of which he stated;
“I apologize to the court”
17. My Review reveals the following;
a) The accused was unrepresented by an advocate.
b) The accused was not forewarned or cautioned while pleading guilty
c) The torn seats, faded chevrons, and having Reflective materials on the windscreen and both windows are minor traffic infractions that would attract a penalty commensurate with the offence.
d) The failure to present facts to the court deprived the court an opportunity to impose a commensurate penalty
e) The fine as imposed would ensure the Applicant opting for the imprisonment as the amounts imposed are prohibitive.
f) The accused was not afforded any benefit of being a first offender
18. Disturbing or interfering with an exercise of judicial discretion is limited as was held in the case of Ogolla S/o Owuor v R {1954} EACA 270 in holding, that:
“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors. for this Court to interfere it must be shown that in passing the sentence, the sentencing Court took into account an irrelevance factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered.” (See also Sayeka v R {1989} KLR 306)
19. The observation by this court how plea was taken, explicitly manifests
Serious shortcomings including contravention of the constitutional right of the accused, an equivocal plea was entered, disregard of material factors by the trial court, disregard of mitigation and imposition of fine amount that is prohibitive and not commensurate with the offence.
20. I am thus persuaded that the conviction and sentence-imposed warrant interference.
21. The Applicant’s concern in review is on the monetary fine imposed and as such the court accordingly sets-aside the sentence imposed in Busia CM’ Court TR/ No. E291 of 2026 and substitutes the same as follows;
i. Count I
The Accused shall pay a fine of Kshs 10,000/- upon default an imprisonment of one month.
ii. Count II
The Accused shall pay a fine of Kshs 15,000/- upon default an imprisonment of Two months.
iii. Count III
The Accused shall pay a fine of Kshs 15,000/- upon default an imprisonment of Two months.
It is So Ordered
Signed, Delivered Virtually on Teams platform
On this 22 ND day of July, 2026
________________________
Mohochi S.M
JUDGE
2