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