JUDGEMENT
1. This is an Appeal against the ruling of Honourable M. Wanjala, Senior Principal Magistrate at the Thika Chief Magistrate’s Court in the Thika Criminal Case No. MCTR 348 of 2021 on the 15th day of April, 2021.
Background Facts
2. The Appellant lodged an Appeal against the Ruling of Honourable M. Wanjala, Senior Principal Magistrate at Thika. The Appellant was charged with driving a motor vehicle without an inspection sticker contrary to Section 17A (1) of the Traffic Act (CAP 403). The Particulars being that on the 14th day of April 2021 at about 11.00 hours along Nairobi-Thika Road at Gatitu within Kiambu County, being a driver of Motor Vehicle Registration KCH 746E make Nissan Wingroad, did drive the said Motor Vehicle without inspection sticker for commercial purpose.
3. The Counsel for the Appellant raised a Preliminary Objection to the taking of the plea to the charge. This was on the ground that the charge was defective. The prosecution opposed the Preliminary Objection and the Lower Court dismissed the same.
4. Being aggrieved by the decision of the Lower Court, the Appellant lodged the instant appeal citing 10 grounds which are reproduced as follows:
(1) THAT the learned Magistrate erred and misdirected himself in law and fact by not applying the correct law, tests and principles relating to preliminary objections.
(2) THAT the learned Magistrate erred in law and fact in dismissing the Preliminary objection that was raised purely on a matter of law.
(3) THAT the learned Magistrate erred in law and fact by failing to apply discretion judicially but applied the same whimsically and arbitrarily in finding no merit in the Appellant/Accused’s preliminary objection.
(4) THAT the learned Magistrate erred in law and fact by disregarding set provisions of the law and/or failing to distinguish and give reasons or rationale as to why the said provisions were not applicable in the case.
(5) THAT the learned Magistrate erred in law and fact by failing to find that Section 17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya ought to be read together with Section 3(a) and Section 2 of the Traffic Act which defines the Authority as the National Transport and Safety Authority.
(6) THAT the Learned Magistrate in law and in fact failing to find that Section17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya ought to be read together with Section 26 (1)(b) of the National Transport and Safety Authority Act, No. 33 of 2012 and Rule 3(a) of the National Transport and safety Authority Act, No. 33 of 2012 and Rule 3(a) of the National Transport and Safety Authority (Operation of Commercial Vehicles) Regulations, 2018.
(7) THAT the learned Magistrate erred in law and fact by failing to find that the provision of law the Respondent preferred charges against the Appellant/Accused did not disclose an offence under any written law as the Appellant’s motor vehicle did not exceed the tare weight of 3048 kilogrammes.
(8) THAT the learned Magistrate erred in law and fact by directing the Appellant/Accused to take plea on a charge that did not disclose an offence in any written law.
(9) THAT the learned Magistrate erred in law and fact by misconducting and misapplying Article 50 of the Constitution of Kenya, 2010 which guarantees the Appellant the right to a fair hearing and Article 159 (2)(a) of the Constitution of Kenya, 2010 by denying justice to the Appellant/Accused.
(10) THAT the learned Magistrate erred in law by misapplying the provisions of the Traffic Act and the National Transport and safety authority thereby arriving at a decision that is totally inconsistent with law and wholly prejudicial to the Appellant.
5. Parties disposed of the appeal by written submissions. The Appellant’s submissions are dated 28th November 2024 while the Respondent’s are dated 29th November, 2024.
Appellant’s Submissions
6. The Appellant submitted that once a Preliminary Objection is raised, the Court must deal with it first. The Court was referred to the leading case on Preliminary Objections being the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA.
7. The Appellant in his preliminary objection raised the issue that the Charge Sheet did not disclose an offence known in law. The Appellant was required to answer to the charge of driving a motor vehicle used for commercial purpose without an inspection sticker. In canvassing the application for a preliminary objection, Counsel for the Appellant averred to the lower court that the law was clear on which vehicles were classified under law as commercial vehicles requiring to obtain inspection sticker. Counsel further submitted that the Appellant’s vehicle did not fall under the ambit of a commercial vehicle and could therefore not be a subject to the requirement of an inspection sticker.
8. To the Appellant evidently, the questions raised in the preliminary objection by the Appellant on the implications of Section 17A (i) of the Traffic Act, Cap 403, Laws of Kenya would have consequently led to the suit being disposed of. To that end, the Appellant submits that the learned judge erred in law and misapplied the provisions of Section 17A (i) of the Traffic Act in dismissing the preliminary objection.
9. Section 17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya provides for the requirement of an inspection sticker. Section 17A (3) further provides that motor vehicles or trailers are required to obtain inspection stickers before licensing under Section 17 (2) of the Traffic Act. The Appellant submitted that the Traffic Act is very clear in Section 3 (a) and Section 2 that the licensing authority for purposes of Section 17 and Section 17A of the same Act which is the National Transport and Safety Authority. It was further submitted that a reading of Section 26 (1) (b) of the National Transport and Safety Authority Act, No. 33 of 2012 of the Laws of Kenya, and Rule 3(a) of the National Transport and Safety Authority (Operation of Commercial Vehicles) Regulations, 2018, leave no doubt on Motor vehicles that require licensing and inspection. They are as follows;
“A person shall not— (b) operate a commercial service vehicle whose tare weight exceeds three thousand and forty-eight kilograms, unless the vehicle is licensed by the Authority.”
10. It was the Appellant’s submission that his motor vehicle with a tare weight of 1140 kilograms did not meet the threshold of commercial vehicles with a tare weight of 3048 kilograms. That therefore it did not require an inspection sticker.
11. Additionally, the Appellant cited Article 50 of the Constitution of Kenya, 2010 which guarantees the Appellant the right to a fair hearing. This is an inherent right as enshrined in the Bill of Rights. That the dismissal of the preliminary objection would lead the Appellant to suffer a miscarriage of justice. This is on the ground that the Appellant would be sentenced on a provision of law that was gravely misapplied. Article 159 (2) (a) of the Constitution of Kenya, 2010 was cited as to the mandate of the Court. Finally, the Appellant cited the case of Hermans Phillipus Steyn vs Giovanni Guecchi – Ruscone [2013] eKLR. This is where the Supreme Court addressed the words “miscarriage of Justice” in passing and in an obiter dictum, it stated thus:
“61. Beyond the reliance on the provisions of the law for a review of the Court of Appeal’s certificate, the applicant calls in aid the general principle of the rendering justice, as contemplated on Article 159(2) of the Constitution of Kenya, 2010: he avers that “the intended appeal is necessary as a substantial miscarriage of justice might have occurred or may occur unless the said appeal is heard.” 62. “Miscarriage of justice” is thus defined in Black’s Law Dictionary, 8th ed (2204) (atp.1019): “A grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite lack of evidence on an essential element of the crime…. Also termed failure of justice.”
12. The Appellant thus submits that by the learned justice issuing “a grossly unfair outcome” in the preliminary objection, the Appellant will suffer a miscarriage of justice, and thus pleads that this Court overturns the decision of the lower Court.
Respondent’s Submissions
13. The Respondent submitted that the duty of this Honourable Court, sitting as a first Appellate Court, is clearly outlined under Section 379 of the Criminal Procedure Code. It was emphasized that as this is a first Appeal, the jurisdiction of the Court is confined strictly to matters of law. In support of this position, the Respondent relied on the Court of Appeal decision in David Njuguna Wairimu v Republic [2010] eKLR, which affirmed the principle that in a first appeal under Section 379, the appellate court is not permitted to re-evaluate the evidence but is restricted to addressing legal issues arising from the trial. We do not agree with these submissions as this is not a second Appeal. Our Duty as a first Appellate Court remains as set out in Okeno -vs- Republic [1972] E.A. 32. This Court can reevaluate the evidence and arrive at its own conclusion. Perhaps what the Respondent meant was that since this was an Appeal arising from a Preliminary Objection, then it was restricted to points of law.
14. It was submitted that the Learned Magistrate failed to properly apply the law governing Preliminary Objections. In this regard, reliance was placed on the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which laid down the legal threshold for determining the validity of a Preliminary Objection. The Court in that case held that for a Preliminary Objection to succeed, it must meet the following criteria: (i) it must raise a pure point of law; (ii) it must be premised on the assumption that all the facts pleaded by the opposing party are correct; and (iii) it must not involve the need to ascertain facts or call upon the court to exercise discretion. Furthermore, a valid Preliminary Objection should, if upheld, be capable of disposing of the entire suit.
15. The Respondent further submitted, while relying on the case of Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, that a cursory examination of the Preliminary Objection raised by the Appellant reveals that the issues presented before plea was taken, were not purely legal in nature. That they were rather matters requiring factual verification by the Trial Court. At that early stage, the Court only had the charge sheet available for reference. Nevertheless, the Trial Court took cognizance of the specific charges contained in the charge sheet and gave them due consideration. It is evident that the Trial Court did not ignore the Appellant’s concerns but rightly recognized that the issues raised were more appropriately addressed during the course of the trial.
16. On the allegation that the Learned Magistrate failed to appreciate that Section 17A(1) of the Traffic Act ought to be read in conjunction with Section 3(a) and Section 2 of the same Act—and that the particulars of the charge did not disclose an offence known in law—the Respondent submitted that this claim was without merit. It was pointed out that the Ruling on the Preliminary Objection clearly demonstrates that the Trial Magistrate had the opportunity to examine Section 17A (1) alongside Section 3 of the Traffic Act and further considered the provisions of Section 26(1)(b) of the National Transport and Safety Authority Act (NTSA Act). Upon such consideration, the Trial Court found no merit in the application and rightly dismissed the Preliminary Objection.
17. Finally, on the issue of whether the Learned Magistrate failed to accord the Appellant the right to a fair hearing, the Respondent submitted that the record of proceedings demonstrates that from the commencement of the trial, the Appellant was fully accorded all elements of a fair hearing. These included the right to legal representation, adequate time and facilities to prepare a defence, and access to the prosecution's exhibits, among other procedural safeguards. The Appellant has not identified any specific right that was denied. The Respondent contended that the proceedings on record clearly support the position that the Appellant's right to a fair hearing was upheld throughout the trial process.
Issues for determination
18. The Appellant has relied on ten (10) grounds of appeal which considered together with the evidence on record translates into three main issues for determination: -
a) Whether the Trial Magistrate properly applied the law relating to preliminary objections.
b) Whether the charges disclosed an offence in law.
c) Whether the Appellant's constitutional right to a fair hearing was violated.
Analysis
19. This Appeal is interlocutory in nature. The Appellant challenges the dismissal of a preliminary objection raised during the course of a criminal trial. It is trite law that interlocutory appeals in criminal proceedings are governed by specific legal principles. In Republic v Mark Lloyd Steveson [2016] KEHC 4022 (KLR) Justice Joel Ngugi (as he then was) articulated the applicable framework for such Appeals as follows:
“It is important to state the trite position that the High Court will usually exercise its power to review or even exercise an appeal over an interlocutory matter before a magistrate’s court only in exceptional circumstances. While difficult to determine with mathematical precision when the court will use this power, it is only be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below.” Hence the propriety of exercising revision power for interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals will not be exercised piece meal………..”
20. Further, in Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the Court, while addressing the issue of interlocutory appeals in criminal proceedings, held as follows:
“………………..In ordinary criminal trials, there is generally no interlocutory appeals allowed, for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal………. We would, nevertheless, sound a caution against the exercise of the undoubted right of appeal under section 84 (7) of the constitution. First the fact that a trial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental right, falls by the wayside and causes no harm to such an accused. The advantage of that course is that the long delay in the hearing of the charge is avoided and in the event of a conviction the matter can be raised on appeal once and for all. In the present appeal the delay has spanned the period from 25th July, 2007 to date, nearly one year. The trial before the learned Judge will, however, resume and go on to its logical conclusion. We think it is against public policy that criminal trials should be held up in this fashion and it is our hope that lawyers practising at the criminal bar will appropriately advise their clients so as to avoid such unnecessary delays. We would add that in future if such appeals are brought the Court may well order that the hearing of the appeal be stayed pending the conclusion of the trial in the High Court.”
21. Section 382 of the Criminal Procedure Code provides that:
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.
(a) Whether the Trial Magistrate properly applied the law relating to preliminary objections.
22. The Lower Court made a finding that the Appellant could nit object to the taking of a plea on the ground that he was not required to be licensed or to exhibit an inspection sticker. This is on the ground that his vehicle did not have a tare weight of 3048kg. To this Court the position taken by the Trial Court is correct. The matters raised by the Appellant sound like his defence. There is no requirement that the Accused person presents his defence during plea taking.
(b) Whether the charges disclosed an offence in law.
23. On the issue of whether the charge sheet discloses an offence known in law, this Honourable Court has previously addressed a similar situation in Benard Opiyo Ouma v Republic [2018] KEHC 9696 (KLR), where Justice G.W. Ngenye-Macharia (as she then was) held as follows:
“…. that Counts IV and V were defective as Section 17A(1) of the Traffic Act does not set out the penalty for the offence of driving a motor vehicle without an inspection sticker. The sentence is spelled out under Section 29 of the Act. All the same, the latter provides that the maximum fine for a first offender should not exceed Kshs. 10,000/-. Instead, the trial court imposed an illegal sentence of a fine of Kshs. 40,000/. This court has powers to correct the illegality in the sentence.”
24. In the case of JMA v Republic (Criminal Appeal 348 of 2007) [2009] KECA 415 (KLR) (6 November 2009) (Judgment), the Court observed that not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective, to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions.
25. In the case of Benard Ombuna v Republic [2019] KECA 994 (KLR) the Court held that:
“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”
26. This Court follows the position taken by the Court of Appeal in Yegon v. Republic (Criminal Appeal No. 45 of 2018) [2024] KECA 1271 (KLR) (Judgment delivered on 20th September 2024), with regard to the issue of defective charges. The Court of Appeal stated as follows:
“From our perusal of the record, we hold the considered view that the appellant cannot be said to have misunderstood the nature of the charges against him. It is evident that the appellant understood that he was being accused of having committed the offence of defilement, against the complainant. In our view, the omissions did not render the charge sheet fatally defective. Therefore, we find that the error in the charge sheet did not occasion a failure of justice and the same was curable under Section 382 of the Criminal Procedure Code.”
27. Upon perusal of the charge sheet, Court finds that the particular count is defective for it fails to disclose the applicable sentence. The prosecution is at liberty to amend the charge sheet during the course of the trial, as permitted under the law. In addressing this omission, the Court is guided by the provisions of Section 214(1) of the Criminal Procedure Code, Cap 75, Laws of Kenya, which provides as follows:
Where at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.
(c) Whether the Appellant's constitutional right to a fair hearing was violated.
28. The Court further finds that the Appellant was duly heard on his Preliminary Objection, which was substantively determined by the Trial Court. He therefore cannot now allege a violation of his right to be heard. The Appellant retains the right to raise any concerns relating to the charge or trial process before the Trial Court during the proceedings. The issue raised does not occasion any prejudice to the Appellant’s trial, as it may be appropriately addressed as a ground of appeal upon the conclusion of the trial. It is also worth observing that the trial commenced in 2021, but has been significantly delayed due to the preferring of this Appeal.
29. Accordingly, upon consideration of the grounds advanced by the Appellant and guided by the authorities cited herein, the Court is not persuaded that this Court should entertain an interlocutory appeal at this stage. The Appellant has not demonstrated any exceptional or compelling circumstances to justify the interruption of the ongoing criminal trial. There exists no valid reason for the trial to be delayed or derailed. The issues raised by the Appellant are not incapable of being addressed on appeal upon the conclusion of the trial. In the circumstances, the Court finds no merit in the interim appeal.
Determination
30. Consequently, this Appeal is hereby dismissed in its entirety for want of merits. The lower Court file in Thika Chief Magistrate’s Court in the Criminal Case No. MCTR 348 of 2021 is to be returned to Thika Law Courts for further directions and or orders.
DELIVERED, DATED AND SIGNED AT THIKA ON THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Kilemi for the Appellant.
Miss Torosi for the Respondent.
Mr. Amos-Court Assistant.
1. This is an Appeal against the ruling of Honourable M. Wanjala, Senior Principal Magistrate at the Thika Chief Magistrate’s Court in the Thika Criminal Case No. MCTR 348 of 2021 on the 15th day of April, 2021.
Background Facts
2. The Appellant lodged an Appeal against the Ruling of Honourable M. Wanjala, Senior Principal Magistrate at Thika. The Appellant was charged with driving a motor vehicle without an inspection sticker contrary to Section 17A (1) of the Traffic Act (CAP 403). The Particulars being that on the 14th day of April 2021 at about 11.00 hours along Nairobi-Thika Road at Gatitu within Kiambu County, being a driver of Motor Vehicle Registration KCH 746E make Nissan Wingroad, did drive the said Motor Vehicle without inspection sticker for commercial purpose.
3. The Counsel for the Appellant raised a Preliminary Objection to the taking of the plea to the charge. This was on the ground that the charge was defective. The prosecution opposed the Preliminary Objection and the Lower Court dismissed the same.
4. Being aggrieved by the decision of the Lower Court, the Appellant lodged the instant appeal citing 10 grounds which are reproduced as follows:
(1) THAT the learned Magistrate erred and misdirected himself in law and fact by not applying the correct law, tests and principles relating to preliminary objections.
(2) THAT the learned Magistrate erred in law and fact in dismissing the Preliminary objection that was raised purely on a matter of law.
(3) THAT the learned Magistrate erred in law and fact by failing to apply discretion judicially but applied the same whimsically and arbitrarily in finding no merit in the Appellant/Accused’s preliminary objection.
(4) THAT the learned Magistrate erred in law and fact by disregarding set provisions of the law and/or failing to distinguish and give reasons or rationale as to why the said provisions were not applicable in the case.
(5) THAT the learned Magistrate erred in law and fact by failing to find that Section 17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya ought to be read together with Section 3(a) and Section 2 of the Traffic Act which defines the Authority as the National Transport and Safety Authority.
(6) THAT the Learned Magistrate in law and in fact failing to find that Section17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya ought to be read together with Section 26 (1)(b) of the National Transport and Safety Authority Act, No. 33 of 2012 and Rule 3(a) of the National Transport and safety Authority Act, No. 33 of 2012 and Rule 3(a) of the National Transport and Safety Authority (Operation of Commercial Vehicles) Regulations, 2018.
(7) THAT the learned Magistrate erred in law and fact by failing to find that the provision of law the Respondent preferred charges against the Appellant/Accused did not disclose an offence under any written law as the Appellant’s motor vehicle did not exceed the tare weight of 3048 kilogrammes.
(8) THAT the learned Magistrate erred in law and fact by directing the Appellant/Accused to take plea on a charge that did not disclose an offence in any written law.
(9) THAT the learned Magistrate erred in law and fact by misconducting and misapplying Article 50 of the Constitution of Kenya, 2010 which guarantees the Appellant the right to a fair hearing and Article 159 (2)(a) of the Constitution of Kenya, 2010 by denying justice to the Appellant/Accused.
(10) THAT the learned Magistrate erred in law by misapplying the provisions of the Traffic Act and the National Transport and safety authority thereby arriving at a decision that is totally inconsistent with law and wholly prejudicial to the Appellant.
5. Parties disposed of the appeal by written submissions. The Appellant’s submissions are dated 28th November 2024 while the Respondent’s are dated 29th November, 2024.
Appellant’s Submissions
6. The Appellant submitted that once a Preliminary Objection is raised, the Court must deal with it first. The Court was referred to the leading case on Preliminary Objections being the case of Mukisa Biscuits Manufacturing Ltd v West End Distributors (1969) EA.
7. The Appellant in his preliminary objection raised the issue that the Charge Sheet did not disclose an offence known in law. The Appellant was required to answer to the charge of driving a motor vehicle used for commercial purpose without an inspection sticker. In canvassing the application for a preliminary objection, Counsel for the Appellant averred to the lower court that the law was clear on which vehicles were classified under law as commercial vehicles requiring to obtain inspection sticker. Counsel further submitted that the Appellant’s vehicle did not fall under the ambit of a commercial vehicle and could therefore not be a subject to the requirement of an inspection sticker.
8. To the Appellant evidently, the questions raised in the preliminary objection by the Appellant on the implications of Section 17A (i) of the Traffic Act, Cap 403, Laws of Kenya would have consequently led to the suit being disposed of. To that end, the Appellant submits that the learned judge erred in law and misapplied the provisions of Section 17A (i) of the Traffic Act in dismissing the preliminary objection.
9. Section 17A (1) of the Traffic Act, Chapter 403 of the Laws of Kenya provides for the requirement of an inspection sticker. Section 17A (3) further provides that motor vehicles or trailers are required to obtain inspection stickers before licensing under Section 17 (2) of the Traffic Act. The Appellant submitted that the Traffic Act is very clear in Section 3 (a) and Section 2 that the licensing authority for purposes of Section 17 and Section 17A of the same Act which is the National Transport and Safety Authority. It was further submitted that a reading of Section 26 (1) (b) of the National Transport and Safety Authority Act, No. 33 of 2012 of the Laws of Kenya, and Rule 3(a) of the National Transport and Safety Authority (Operation of Commercial Vehicles) Regulations, 2018, leave no doubt on Motor vehicles that require licensing and inspection. They are as follows;
“A person shall not— (b) operate a commercial service vehicle whose tare weight exceeds three thousand and forty-eight kilograms, unless the vehicle is licensed by the Authority.”
10. It was the Appellant’s submission that his motor vehicle with a tare weight of 1140 kilograms did not meet the threshold of commercial vehicles with a tare weight of 3048 kilograms. That therefore it did not require an inspection sticker.
11. Additionally, the Appellant cited Article 50 of the Constitution of Kenya, 2010 which guarantees the Appellant the right to a fair hearing. This is an inherent right as enshrined in the Bill of Rights. That the dismissal of the preliminary objection would lead the Appellant to suffer a miscarriage of justice. This is on the ground that the Appellant would be sentenced on a provision of law that was gravely misapplied. Article 159 (2) (a) of the Constitution of Kenya, 2010 was cited as to the mandate of the Court. Finally, the Appellant cited the case of Hermans Phillipus Steyn vs Giovanni Guecchi – Ruscone [2013] eKLR. This is where the Supreme Court addressed the words “miscarriage of Justice” in passing and in an obiter dictum, it stated thus:
“61. Beyond the reliance on the provisions of the law for a review of the Court of Appeal’s certificate, the applicant calls in aid the general principle of the rendering justice, as contemplated on Article 159(2) of the Constitution of Kenya, 2010: he avers that “the intended appeal is necessary as a substantial miscarriage of justice might have occurred or may occur unless the said appeal is heard.” 62. “Miscarriage of justice” is thus defined in Black’s Law Dictionary, 8th ed (2204) (atp.1019): “A grossly unfair outcome in a judicial proceeding, as when a defendant is convicted despite lack of evidence on an essential element of the crime…. Also termed failure of justice.”
12. The Appellant thus submits that by the learned justice issuing “a grossly unfair outcome” in the preliminary objection, the Appellant will suffer a miscarriage of justice, and thus pleads that this Court overturns the decision of the lower Court.
Respondent’s Submissions
13. The Respondent submitted that the duty of this Honourable Court, sitting as a first Appellate Court, is clearly outlined under Section 379 of the Criminal Procedure Code. It was emphasized that as this is a first Appeal, the jurisdiction of the Court is confined strictly to matters of law. In support of this position, the Respondent relied on the Court of Appeal decision in David Njuguna Wairimu v Republic [2010] eKLR, which affirmed the principle that in a first appeal under Section 379, the appellate court is not permitted to re-evaluate the evidence but is restricted to addressing legal issues arising from the trial. We do not agree with these submissions as this is not a second Appeal. Our Duty as a first Appellate Court remains as set out in Okeno -vs- Republic [1972] E.A. 32. This Court can reevaluate the evidence and arrive at its own conclusion. Perhaps what the Respondent meant was that since this was an Appeal arising from a Preliminary Objection, then it was restricted to points of law.
14. It was submitted that the Learned Magistrate failed to properly apply the law governing Preliminary Objections. In this regard, reliance was placed on the landmark case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, which laid down the legal threshold for determining the validity of a Preliminary Objection. The Court in that case held that for a Preliminary Objection to succeed, it must meet the following criteria: (i) it must raise a pure point of law; (ii) it must be premised on the assumption that all the facts pleaded by the opposing party are correct; and (iii) it must not involve the need to ascertain facts or call upon the court to exercise discretion. Furthermore, a valid Preliminary Objection should, if upheld, be capable of disposing of the entire suit.
15. The Respondent further submitted, while relying on the case of Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, that a cursory examination of the Preliminary Objection raised by the Appellant reveals that the issues presented before plea was taken, were not purely legal in nature. That they were rather matters requiring factual verification by the Trial Court. At that early stage, the Court only had the charge sheet available for reference. Nevertheless, the Trial Court took cognizance of the specific charges contained in the charge sheet and gave them due consideration. It is evident that the Trial Court did not ignore the Appellant’s concerns but rightly recognized that the issues raised were more appropriately addressed during the course of the trial.
16. On the allegation that the Learned Magistrate failed to appreciate that Section 17A(1) of the Traffic Act ought to be read in conjunction with Section 3(a) and Section 2 of the same Act—and that the particulars of the charge did not disclose an offence known in law—the Respondent submitted that this claim was without merit. It was pointed out that the Ruling on the Preliminary Objection clearly demonstrates that the Trial Magistrate had the opportunity to examine Section 17A (1) alongside Section 3 of the Traffic Act and further considered the provisions of Section 26(1)(b) of the National Transport and Safety Authority Act (NTSA Act). Upon such consideration, the Trial Court found no merit in the application and rightly dismissed the Preliminary Objection.
17. Finally, on the issue of whether the Learned Magistrate failed to accord the Appellant the right to a fair hearing, the Respondent submitted that the record of proceedings demonstrates that from the commencement of the trial, the Appellant was fully accorded all elements of a fair hearing. These included the right to legal representation, adequate time and facilities to prepare a defence, and access to the prosecution's exhibits, among other procedural safeguards. The Appellant has not identified any specific right that was denied. The Respondent contended that the proceedings on record clearly support the position that the Appellant's right to a fair hearing was upheld throughout the trial process.
Issues for determination
18. The Appellant has relied on ten (10) grounds of appeal which considered together with the evidence on record translates into three main issues for determination: -
a) Whether the Trial Magistrate properly applied the law relating to preliminary objections.
b) Whether the charges disclosed an offence in law.
c) Whether the Appellant's constitutional right to a fair hearing was violated.
Analysis
19. This Appeal is interlocutory in nature. The Appellant challenges the dismissal of a preliminary objection raised during the course of a criminal trial. It is trite law that interlocutory appeals in criminal proceedings are governed by specific legal principles. In Republic v Mark Lloyd Steveson [2016] KEHC 4022 (KLR) Justice Joel Ngugi (as he then was) articulated the applicable framework for such Appeals as follows:
“It is important to state the trite position that the High Court will usually exercise its power to review or even exercise an appeal over an interlocutory matter before a magistrate’s court only in exceptional circumstances. While difficult to determine with mathematical precision when the court will use this power, it is only be sparingly used where, in the words of South African authors, Gardiner and Lansdown (6th Ed. Vol. 1 p. 750), “grave injustice might otherwise result or where justice might not by other means be attained.” As the authors correctly write, the Court will generally “hesitate to intervene, especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below.” Hence the propriety of exercising revision power for interlocutory matters is decided on the facts of each case and with “due regard to the salutary general rule that appeals will not be exercised piece meal………..”
20. Further, in Thomas Patrick Gilbert Cholmondeley v Republic [2008] KECA 319 (KLR), the Court, while addressing the issue of interlocutory appeals in criminal proceedings, held as follows:
“………………..In ordinary criminal trials, there is generally no interlocutory appeals allowed, for section 379 (1) of the Criminal Procedure Code allows only appeals by persons who have been convicted of some offence. The Appellant has not been convicted of any offence. As far as we understand the position the basis of an appeal cannot be that an order made in the course of a trial is highly prejudicial to an accused person; Muga Apondi, J ruled that the appellant had a case to answer and even if that order would be seen as being prejudicial that alone would not have entitled the appellant to appeal………. We would, nevertheless, sound a caution against the exercise of the undoubted right of appeal under section 84 (7) of the constitution. First the fact that a trial Judge has made an adverse ruling against an accused person in a criminal trial does not and cannot mean that the Judge will inevitably convict. The Judge might well acquit in the end and the adverse ruling, even if it amounted to a breach of fundamental right, falls by the wayside and causes no harm to such an accused. The advantage of that course is that the long delay in the hearing of the charge is avoided and in the event of a conviction the matter can be raised on appeal once and for all. In the present appeal the delay has spanned the period from 25th July, 2007 to date, nearly one year. The trial before the learned Judge will, however, resume and go on to its logical conclusion. We think it is against public policy that criminal trials should be held up in this fashion and it is our hope that lawyers practising at the criminal bar will appropriately advise their clients so as to avoid such unnecessary delays. We would add that in future if such appeals are brought the Court may well order that the hearing of the appeal be stayed pending the conclusion of the trial in the High Court.”
21. Section 382 of the Criminal Procedure Code provides that:
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.
(a) Whether the Trial Magistrate properly applied the law relating to preliminary objections.
22. The Lower Court made a finding that the Appellant could nit object to the taking of a plea on the ground that he was not required to be licensed or to exhibit an inspection sticker. This is on the ground that his vehicle did not have a tare weight of 3048kg. To this Court the position taken by the Trial Court is correct. The matters raised by the Appellant sound like his defence. There is no requirement that the Accused person presents his defence during plea taking.
(b) Whether the charges disclosed an offence in law.
23. On the issue of whether the charge sheet discloses an offence known in law, this Honourable Court has previously addressed a similar situation in Benard Opiyo Ouma v Republic [2018] KEHC 9696 (KLR), where Justice G.W. Ngenye-Macharia (as she then was) held as follows:
“…. that Counts IV and V were defective as Section 17A(1) of the Traffic Act does not set out the penalty for the offence of driving a motor vehicle without an inspection sticker. The sentence is spelled out under Section 29 of the Act. All the same, the latter provides that the maximum fine for a first offender should not exceed Kshs. 10,000/-. Instead, the trial court imposed an illegal sentence of a fine of Kshs. 40,000/. This court has powers to correct the illegality in the sentence.”
24. In the case of JMA v Republic (Criminal Appeal 348 of 2007) [2009] KECA 415 (KLR) (6 November 2009) (Judgment), the Court observed that not all defects in a charge sheet will render a conviction thereunder invalid. Over time, the test of determining whether a charge is fatally defective, to render any conviction a nullity has been established, both in our jurisdiction and other jurisdictions.
25. In the case of Benard Ombuna v Republic [2019] KECA 994 (KLR) the Court held that:
“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.”
26. This Court follows the position taken by the Court of Appeal in Yegon v. Republic (Criminal Appeal No. 45 of 2018) [2024] KECA 1271 (KLR) (Judgment delivered on 20th September 2024), with regard to the issue of defective charges. The Court of Appeal stated as follows:
“From our perusal of the record, we hold the considered view that the appellant cannot be said to have misunderstood the nature of the charges against him. It is evident that the appellant understood that he was being accused of having committed the offence of defilement, against the complainant. In our view, the omissions did not render the charge sheet fatally defective. Therefore, we find that the error in the charge sheet did not occasion a failure of justice and the same was curable under Section 382 of the Criminal Procedure Code.”
27. Upon perusal of the charge sheet, Court finds that the particular count is defective for it fails to disclose the applicable sentence. The prosecution is at liberty to amend the charge sheet during the course of the trial, as permitted under the law. In addressing this omission, the Court is guided by the provisions of Section 214(1) of the Criminal Procedure Code, Cap 75, Laws of Kenya, which provides as follows:
Where at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case.
(c) Whether the Appellant's constitutional right to a fair hearing was violated.
28. The Court further finds that the Appellant was duly heard on his Preliminary Objection, which was substantively determined by the Trial Court. He therefore cannot now allege a violation of his right to be heard. The Appellant retains the right to raise any concerns relating to the charge or trial process before the Trial Court during the proceedings. The issue raised does not occasion any prejudice to the Appellant’s trial, as it may be appropriately addressed as a ground of appeal upon the conclusion of the trial. It is also worth observing that the trial commenced in 2021, but has been significantly delayed due to the preferring of this Appeal.
29. Accordingly, upon consideration of the grounds advanced by the Appellant and guided by the authorities cited herein, the Court is not persuaded that this Court should entertain an interlocutory appeal at this stage. The Appellant has not demonstrated any exceptional or compelling circumstances to justify the interruption of the ongoing criminal trial. There exists no valid reason for the trial to be delayed or derailed. The issues raised by the Appellant are not incapable of being addressed on appeal upon the conclusion of the trial. In the circumstances, the Court finds no merit in the interim appeal.
Determination
30. Consequently, this Appeal is hereby dismissed in its entirety for want of merits. The lower Court file in Thika Chief Magistrate’s Court in the Criminal Case No. MCTR 348 of 2021 is to be returned to Thika Law Courts for further directions and or orders.
DELIVERED, DATED AND SIGNED AT THIKA ON THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Kilemi for the Appellant.
Miss Torosi for the Respondent.
Mr. Amos-Court Assistant.