(Being an appeal from the Judgment of the Principle Magistrate’s Court at Hamisi
delivered on 17th on 17th March 2026 by Hon. N. Moseti in Hamisi Traffic Case
No. E070 of 2022).
Coram: Justice R. Nyakundi
M/S Cheptinga & Co. Advocates
Mr. Leina Davies for the State
JUDGMENT
1. The Appellant Vincent Kipkemei Maiyo was charged with two counts
namely: That of causing death by dangerous driving contrary to Section
46 of the Traffic Act Cap 403 Laws of Kenya. The particulars of the offence
being that on the 26th day of February, 2022 at about 1100Hrs at Kaimosi
area along Chavakali- Kapsabet road in Hamisi Sub-County, Vihiga
County Western Region Being the Driver of Motor Vehicle Registration No.
KCY 042 W Make TOYOTA RUSH and drove the said Vehicle on a public
road in a manner which was dangerous to the public having regard to all
circumstances of the case including the nature and condition use of the
road and the amount of the traffic which was actually at the time or which
might be reasonably be expected to be on the road where he hit motor cycle
registration number KMFB 930V make TVS, causing injuries to the rider
namely Collins Jikaya and pillion passenger namely Solomon Linakaya
Mutalamwa both who died later as a result of the accident.
2. The Appellant denied both counts necessitating a full trial in which the
prosecution summoned witnesses to proof the elements of the offence
beyond reasonable doubt.
3. In a full trial before the Magistrate’s Court the Appellant was found guilty,
convicted and sentenced in a judgment dated 17/3/2026 in which the
Court pronounced itself as follows:
I have carefully evaluated the evidence on record while bearing in
mind that I did not have the advantage to hear PW 1, PW 2, PW 3, PW
4 and PW 5. I have made due allowance of this fact. PW 1's evidence
was consistent with findings made at the scene by PW 6. In this
regard PW1's evidence was corroborated. Pexh 1 and Pexh 2 confirms
that Collins Jokaya and Simon Linaka died as a result of the accident.
From PW 1'S evidence he saw the accident occurring at close range
between 5 to 6 metres ahead and the accident occurred at 11.00 am
which time the weather was clear and that the accused at the
material time of accident was driving on the right lane while facing
Cheptulu when he ought to have drove on the left lane while facing
Cheptulu from Chavakali direction. His evidence was uncontroverted.
Pexh 2(a) (b) and (c) shows that the accident occurred on a bend and
therefore the accused ought not to have changed lanes.
The accused's defence that he swerved to avoid hitting a matatu that
had suddenly stopped when he himself alleged that he was driving
at 60 km/hr is unreliable since he could have been able to brake the
motor vehicle and bring it to a stop if it was to be so. I hereby dismiss
the accused's defense. I find that the accident of 26/2/2022 was
occasioned by a fault on the part of the accused. I therefore hold that
the prosecution has proved the charges against the accused beyond
reasonable doubt. On the second issue having found that the
prosecution has proved the Traffic counts herein beyond reasonable
doubt, It then follows that the accused who was the driver of motor
vehicle registration NO. KCY 042 W which caused the accident
culpable for the offence of causing death by dangerous driving
contrary to section 46 of the Traffic Act Cap 403 laws of Kenya under
section 215 of the criminal procedure code. I hereby convict him of the
two counts. This judgment was delivered at Hamisi on 17th day of
March 2026.
4. Subsequent to this conviction, the learned trial Magistrate ordained
himself with regard to sentence as follows:
Records: 1st offender
M/s Cheptinga Advocate for the accused
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 funding 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
5. The Appellant being aggrieved with the conviction and sentence filed a
memorandum of appeal dated 23rd March 2026 in which he asserted as
follows:
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.
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. 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.
j. 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.
6. It is against this background the Appellant canvassed the appeal by way of
written submissions dated 16th May 2026 in which Learned Counsel
argued and submitted that in the totality of the sentence imposed it is
manifestly excessive, disproportionate and fails the test of totality and
proportionality under the provisions of Section 46 of the Traffic Act. In the
contention of the learned Counsel on behalf of the Appellant, the
disqualification of the Appellant for 3 years from being licenced as a driver
by NTSA was an overreach in so far as sentencing parameters are
concerned. On this ground of proportionality Learned Counsel invited the
Court to be persuaded by the principles in Amos Odhiambo Okoth v
Republic [2020] KEHC 4524 (KLR) and Timothy Orwenyo Missiani v
Republic [1979] KLR 285. The Learned Counsel further submitted that the
learned Trial Magistrate erred in law by failing to appreciate that the fine
already meted upon the Appellant was sufficient and just without the
condition of disqualification of being a driving licence holder in Kenya for
3 years. He proceeded to influence the Court to be guided by the laid down
principles in: Peter Nguu v Republic [2021] KEHC 8860 [KLR], Rimba v
Republic [2024] KEHC 10371 (KLR), Charles Korir v Republic [2016] KEHC
6701 (KLR) and Francis Karioko Muruatetu & Another v Republic [2017]
eKLR. In keeping view of these issues surrounding this appeal Learned
Counsel still maintained that the fine of Kshs 260,000/= already exceeds
the nuanced of the doctrine of proportionality in sentencing.
7. From the perspective of the Appellant through his Learned Counsel, the
trial Court not only failed him in passing a disproportionate sentence but
also erred in both law and fact by failing to apply the relevant and pertinent
facts to the judicial principles, precedents and trends before arriving at the
decision on conviction. Learned Counsel majorly highlighted to this Court
the discrepancies and conflicting evidence between PW1 and other
witnesses which rendered the entire decision a misdirection of law. In this
respect, the following case law formed the basic structure for this appeals
Court to set aside the conviction according to the Appellant Counsel:
Quelicline Makonjiro V Republic [DPP] (Criminal Appeal E041 of 2021) [2022]
KEHC 11680 (KLR), Richard Munene v Republic [2018] eKLR, Timothy
Orwenyo Missiani v Republic [1979] KLR 285, Amos Odhiambo Okoth v
Republic [2020] KEHC 4524 (KLR), Wilkinson Mwanjara Mwamburi v
Republic [2017] KEHC 4321 (KLR), Rimba v Republic [2024] KEHC 10371
[KLR] and Njogu v Republic v Republic [2022] KEHC 10034 (KLR). According
to Learned Counsel, this omission and erroneous facts render both
conviction and sentence a misdirection in law.
8. The burden of proof in a criminal matter must be beyond reasonable doubt.
A contradiction of material facts as to how an accident occurred
particularly the number of motor cycles, or vehicles or pedestrian involved
should lead to an acquittal of the accused. The burden of proof rests
entirely on the prosecution the legal principle of onus probandi, which
must establish the guilt of the accused beyond reasonable doubt. The
accused is presumed innocent until proven guilty, and the burden only
shifts to the defense in specific statutory exceptions.
9. This doctrine has been expounded in the following cases:
• Woolmington v Director of Public Prosecutions [1935] UKHL 1: The
foundational House of Lords case that firmly established the "golden
thread" of English criminal law—the presumption of innocence and the
prosecution's duty to prove guilt beyond a reasonable doubt. [1, 2, 3]
• Miller v Minister of Pensions [1947] 2 All ER 372: This English case
provided the classic, widely-cited definition of "beyond a reasonable
doubt," stating the evidence must be of such a convincing character that
a reasonable person would not hesitate to rely upon it in the most
important of their own affairs. [1]
• Miller & Another v The People (Kenya): A prominent East African
appellate precedent reinforcing that a mere suspicion, regardless of how
strong, cannot substitute for the strict standard of proof in criminal trials.
• State v Maqoma (South Africa): A key regional jurisprudence example
detailing that the burden of proving all elements of an offense lies strictly
with the state, and the accused has no obligation to prove their
innocence.
10. In considering this appeal, the standard of proof, which must be
established beyond reasonable by the prosecution, is significantly the
threshold, which must be screened with the evidence so that the complete
chain on causation of the accident is within Section 46 of the Traffic Act.
11. I consider Learned Counsel’s submissions to this appeal to importing the
application of the principles on a case proved beyond reasonable doubt for
her arguments are that this threshold was never discharged by the
prosecution for the appellant to be found guilty of the offence of causing
death by dangerous driving contrary to Section 46 of the Traffic Act.
12. The other legal perspective, which could have been of significance, is the
views taken by the State in so far as this appeal is concerned. However,
that does not mean that the State could suffer prejudice for non-filing of
submissions which is implicit of conceding to the appeal. That is not the
case here for submissions deal with point of law which also the court
acknowledges as having the competence to apply the law.
Legal Analysis and Decision
13. This is a first appeal from the Subordinate Court in which jurisdiction is
well laid out in the case of Pandya v Republic [1957] EA 336 pg 37 in which
it was stated as follows:
“On first appeal from a conviction by a Judge or Magistrate sitting
without a jury the appellant is entitled to have the appellate court’s
own consideration and views of the evidence as a whole and its own
decision thereon. It has the duty to rehear the case and reconsider the
materials before the judge or magistrate with such other materials at
it may have decided to admit. The appellant court must then make up
its mind not disregarding the judgement appealed from but carefully
weighing and considering it. When the question arises which witness
is to be believed rather than another and that question turns on a
manner and demeanour, the appellate court must be guided by the
impression made on the judge or magistrate who saw the witnesses
but there may be other circumstances, quite apart from manner and
demeanour which may warrant a court in differing from the judge or
Magistrate even on a question of fact turning on the credibility of
witnesses whom the appellate court has not seen……”
14. The primary foundation for the first criminal appeal’s court is outlined in
the Criminal Procedure Code. In furtherance to this, the Court is guided
by established legal principles requiring the Judge to weigh conflicting
evidence and arrive at its own independent conclusions while making
allowances for the trial Magistrate’s advantage of seeing the witnesses
testify.
15. This jurisdiction of the first appeals Court was also reiterated in the
decision of Okeno v Republic [1972] EA 32 where the Court said:
“An appellant on a first appeal is entitled to expect the evidence as a
whole to be submitted to a fresh and exhaustive examination (Pandya v.
R., [1957] E. A. 336) and to the appellate court's own decision on the
evidence. The first appellate court must itself weigh conflicting evidence
and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A.
570). It is not the function of a first appellate court merely to scrutinize
the evidence to see if there was some evidence to support the lower
court's findings and conclusions; it must make its own findings and draw
its own conclusions. Only then can it decide whether the magistrate's
findings should be supported. In doing so, it should make allowance for
the fact that the trial court has had the advantage of hearing and seeing
the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
16. There are two issues which arise out of this appeal although in the
memorandum of appeal Learned Counsel seems to unpackage them into
various grounds of appeal to demonstrate the grievances and
dissatisfaction with the impugned judgment. As for this Court, the first
question to address is whether the finding of guilty and conviction for the
offence of causing death by dangerous driving by the Appellant was well
founded by the trial Court.
The Law
17. The offence of causing death by dangerous driving under Section 46 of
the Traffic Act Cap 403 Laws of Kenya occurs when a person causes death
by driving recklessly, at a dangerous speed, or in a manner dangerous to
the public taking into account all road circumstances and traffic levels.
The Kenyan Courts usually face variety of cases under the Traffic Act
including those which fall within the provisions of Section 46 of the Act.
From the interpretation of the law key principles have been laid down to
define as to what constitutes this offence:
• Objective Standard of Fault: The mere occurrence of an accident
is not enough; the prosecution must prove the driver significantly
departed from the standard of care expected of a reasonably prudent
driver. As established in Atito v Republic, there must be objective
danger and specific fault by the driver.
• No Deliberate Intent Required: "Fault" does not require deliberate
misconduct or intent. An objective failure to handle a vehicle safely
suffices.
• Manner of Driving: In cases like John Akama Machuchu v Republic,
overtaking in blind spots (such as on a bridge) was deemed
dangerous driving. Speed, failure to yield, and disregard for road
conditions are heavily scrutinized.
• Emergency Situations: The courts acknowledge that external
factors can create sudden emergencies. In Njeru v Republic, a
conviction was overturned because the driver was avoiding a headon collision caused by another vehicle, which meant the resulting
impact was not the driver's fault.
• Obstruction: The offense can also be constituted by leaving a
vehicle in a position or condition dangerous to the public.
18. The penalties for causing death by dangerous driving are severe and
according to the legislative scheme a maximum prison sentence of 10 years
with a mandatory driving disqualification for a minimum of two years and
extended retest before one regains his or her driving license so that he or
she can go back to the driver’s seat. This is what the Court articulated in
the case of Shah vs Republic [1969] EA in which it was construed that
Section 46 of the Traffic Act cumulatively constitutes four key ingredients
and any one of them or as a combination can form part of the indictment
in a decision to charge by the Director of Public Prosecution under Article
157 (6) (7) of the Constitution as read with Section 46 of the Traffic Act.
Thus I have in mind the elements of recklessly, or at a speed, or in a
manner, or by leaving a vehicle on a road in such a position or manner or
in such a condition as to be dangerous to the public.
19. In my view, proving any criminal offence is a matter of evidence and it is
for the Prosecution to establish any of the elements beyond reasonable
doubt that the driver’s dangerous conduct was the substantial cause of
the death. What this means is that the nature of dangerous driving can
be both reckless, at high speed or after a driver conducts himself or herself
recklessly he or she places that vehicle in a position which may be
Traffic Appeal No. E008 of 2026 Page 11 of 16
dangerous to other road users. It must be appreciated that driving is not
a one off event. It is a chain of causation issues underpinned in the range
of the reckless conduct and the range of the speed in which the vehicle
was being driven and ultimately there is a fatal accident involving a third
party who did not contribute to the cause of the accident. When one talks
about dangerous driving, it is that driving which must fall grossly below
the standard of a prudent and competent driver. This includes actions
like driving unroadworthy vehicles, excessive speeding, distracted driving
and reckless overtaking without adequate visibility. It is the duty of the
Prosecution to explicitly by way of evidence to link the dangerous driving
to the victim’s death. This is a strict liability statutory offence under the
realm of criminal negligence though the dangerous manner of driving
imports intentional or reckless acts in which it is foreseeable that such a
traffic offence was likely to occur beyond the probability metrics.
20. In this respect, the trial Court was faced with the indictment in which the
prosecution adduced evidence of PW1 by the name Silas Kiprigut who told
the Court on 26/2/2022 when his boss called him to get him some
documents from the office and he proceeded to do so by using his own
motor vehicle. That is when along the way at Cheptur area he slowed down
and motor cycle riders overtook him but there was oncoming motor vehicle
from Shamakhokho and incidentally it rammed on the motor cycles and
was a head on collision with another motor vehicle. It was at this scene
when to fatalities occurred involving two human beings. On crossexamination by Counsel for the Appellant, PW1 confirmed that he was
driving motor vehicle registration No. KAZ 365W which he purchased in
2021. He also confirmed to the trial Court that traffic was clear and the
motor cycles were ahead of him about 15 metres away and the passenger
on the motor cycle fell off the road to the left side as one faces
Shamakhokho and the other motor cycle had a collision with the oncoming
motor vehicle.
21. The other witness of importance at the trial Court is PW3 Henry who
introduced himself as a security guard at Friends Boys Kaimosi. His
evidence was to the effect that Solomon one of the deceased happened to
be his uncle but he never said anything more about the occurrence of the
accident. This was also the evidence of PW4 one Kennedy whose evidence
was on identifying the deceased one Collins as part of the victim of that
accident. These chain of circumstantial evidence turned on to point
directly to the appellant as the one who triggered the proximate cause of
the accident.
22. The investigation of this accident proceeded in earnest as stated by PC
Murkomen of Vihiga Police Station. He presented before Court the sketch
plans, legends and measurements of the scene, the motor cycle inspection
reports and also the motor vehicle which was also mentioned as part of
the main chattels involved in this accident. He therefore formed the
opinion and recommended that the Appellant be charged with the offence
of causing death by dangerous driving contrary to Section 46 of the Traffic
Act .
23. The Appellant answered the issues involved in this collision in which two
persons lost their lives. According to the Appellant on 26th February 2022
he was driving from Kisumu to Eldoret when his motor vehicle registration
number KCY 042W was involved in an accident. It was his defence that
this accident was majorly caused by a motor vehicle from Eldoret direction
which was being driven in high speed and there was a motor cyclist also
om the same road. It was the motor cyclist which had a collision with the
motor vehicle and because the surroundings were not very clear he was
not able to swerve towards the side of the pedestrians. He therefore blamed
the matatu driver as the originator of the accident.
24. In considering the evidence, learned trial Magistrate conclusively
established that the elements of causing death by dangerous driving and
all causation issues with regard to the provisions of Section 46 of the
Traffic Act fell squarely at the doorstep of the Appellant. The learned
Counsel for the Appellant submitted that on manifestation of
contradictions and inconsistencies with regard to the evidence by the
Prosecution and in piecing together the case it was wrong for the learned
magistrate to rule that the Prosecution discharged the burden of proof of
beyond reasonable doubt as to the nature of driving by the Appellant on
the material day. However, in my view there was sufficient evidence which
included that of the Investigating Officer who visited the scene after the
accident and also the Vehicle Inspection Officer report who tested the
subject vehicles and came to the conclusion that the accident was not
caused by any mechanical defect. The testimony of the Appellant was
disbelieved and the Prosecution’s perspective on what transpired when the
two victims lost their lives carried the day within the standard and burden
of proof as stipulated in Section 107(1), 108, 109 and 112 of the Evidence
Act. The rough and fair sketch plan drawn by the Police at the scene of
the accident were intended to show graphically the effect of the accident
and not an actual account of how the accident occurred. This evidence
was admitted in Court to show the position of the vehicles during the
accident and after the accident occurred. It is very clear from the evidence
that the trial Court found the Appellant guilty of causing death by
dangerous driving based on the element of reckless driving in view of the
facts that he was on the wrong lane if the record of the trial Court is
anything to go by.
25. I hold the view that the above represents the facts and the law on the
matter as at now and therefore binding. Having regard to the position of
the law, and the evidence as captured by the Learned Trial Magistrate I
arrive at a conclusion that I find no merit in this appeal with regard to a
finding of guilty and subsequent conviction against the Appellant for the
two counts of causing death by dangerous driving contrary to Section 46
of the Traffic Act Cap 403 Laws of Kenya.
26. The second cluster, which forms the grounds of appeal, constitutes the
issue of sentence. The law is now well settled as to the jurisdiction of an
appeals Court to interfere with the decision of the trial Court on the
sentence imposed. I therefore reiterate the principles in the Court of
Appeal Case in the Benard Kimani Gacheru vs. Republic [2002] eKLR:
“It is now settled law, following several authorities by this Court and
by the High Court, that sentence is a matter that rests in the discretion
of the trial Court. Similarly, sentence must depend on the facts of
each case. on appeal, the appellate court will not easily interfere with
sentence unless, that sentence is manifestly excessive in the
circumstances of the case, or that the trial court overlooked some
material factor, or took into account some wrong material, or acted on
a wrong principle. Even if, the Appellate Court feels that the sentence
is heavy and that the Appellate Court might itself not have passed
that sentence, these alone are not sufficient grounds for interfering
with the discretion of the trial court on sentence unless, anyone of the
matters already stated is shown to exist.”
27. The major complaint by the Appellant is with the effect that the sentence
imposed by the trial Court was punitive, excessive, harsh and runs foul
with the doctrine of proportionality. The doctrine of proportionality
dictates that a criminal sentence must fit the gravity of the offence,
balancing the severity of the crime with the offender’s culpability. It
prevents both excessive and arbitrarily lenient punishments, ensuring
sentences are just, consistent and reflective of the harm caused. In the
modern theory of punishment, within our statutory regime under the
Traffic Act as toned with the Sentencing Policy Guidelines 2023 it is
classified as either retributive or deterrent. The justification of punishment
in our criminal justice system flows directly from the person’s desert.
There is an obligation by Courts handling criminal cases under the
classification of serious offences like causing death by dangerous driving
to punish sufficiently and to speak out against the offence and the
intention of Parliament is to ensure that the offender has got to be rightly
Traffic Appeal No. E008 of 2026 Page 15 of 16
punished as punishment honors them as a rational being with intrinsic
value.
28. The circumstances of this offence called for scaling of punishment in
relation to the offence in which Article 26 of the Constitution on the right
to life was violated and within the findings of the Trial Court, this fatal
accident was avoidable if the Appellant had taken evasive measures in the
course of his driving along the Eldoret-Kisumu road. From the facts of
this case, I consider the sentence imposed by the trial Court to reflect the
gravity of the offence relative to other offences and the various degrees of
seriousness in the range of the conduct of the offender covered by the
offence on the fateful date of 26th February 2022 in broad daylight at
1100hrs.
29. It is within this framework, proportionality is primarily concerned with
measuring sentence imposed and its severity to facilitate fairness,
consistency, parity and predictability in sentencing in one of the major
offences committed in our roads and innocent Kenyans right to life is
terminated prematurely by an offensive conduct which could be avoided
at all levels. For instance, the Appellant is complaining about being
disqualified to hold a driving licence for the next 3 years. In his
submissions this was punitive, harsh and excessive punishment rendering
him to be subjected to double jeopardy and therefore pleaded with the
appeals court on account of that to redress that violation by setting aside
the verdict by the trial Court. It should be borne in mind that factors
relevant to the determination of a sentence within the laid down objectives
and principles under our Sentencing Policy Guidelines depend on the
chosen objective of sentencing by the trial Court such as deterrence,
rehabilitation, reparation or public protection. This was not vengeance on
the part of the Court but retribution for the heinous crime in which two
citizens lost their lives in circumstances which are not excusable or
justifiable. This is what retribution stands for in a criminal context. It
represents an objective, reasoned and measured determination of an
appropriate punishment which properly reflects the moral culpability of
the offender and in our case the Appellant having regard to the intentional
risk taking by the Appellant and the consequential harm caused by his
conduct on the material day. This was a fit sentence proportionate to the
seriousness of the o
[...truncated]
delivered on 17th on 17th March 2026 by Hon. N. Moseti in Hamisi Traffic Case
No. E070 of 2022).
Coram: Justice R. Nyakundi
M/S Cheptinga & Co. Advocates
Mr. Leina Davies for the State
JUDGMENT
1. The Appellant Vincent Kipkemei Maiyo was charged with two counts
namely: That of causing death by dangerous driving contrary to Section
46 of the Traffic Act Cap 403 Laws of Kenya. The particulars of the offence
being that on the 26th day of February, 2022 at about 1100Hrs at Kaimosi
area along Chavakali- Kapsabet road in Hamisi Sub-County, Vihiga
County Western Region Being the Driver of Motor Vehicle Registration No.
KCY 042 W Make TOYOTA RUSH and drove the said Vehicle on a public
road in a manner which was dangerous to the public having regard to all
circumstances of the case including the nature and condition use of the
road and the amount of the traffic which was actually at the time or which
might be reasonably be expected to be on the road where he hit motor cycle
registration number KMFB 930V make TVS, causing injuries to the rider
namely Collins Jikaya and pillion passenger namely Solomon Linakaya
Mutalamwa both who died later as a result of the accident.
2. The Appellant denied both counts necessitating a full trial in which the
prosecution summoned witnesses to proof the elements of the offence
beyond reasonable doubt.
3. In a full trial before the Magistrate’s Court the Appellant was found guilty,
convicted and sentenced in a judgment dated 17/3/2026 in which the
Court pronounced itself as follows:
I have carefully evaluated the evidence on record while bearing in
mind that I did not have the advantage to hear PW 1, PW 2, PW 3, PW
4 and PW 5. I have made due allowance of this fact. PW 1's evidence
was consistent with findings made at the scene by PW 6. In this
regard PW1's evidence was corroborated. Pexh 1 and Pexh 2 confirms
that Collins Jokaya and Simon Linaka died as a result of the accident.
From PW 1'S evidence he saw the accident occurring at close range
between 5 to 6 metres ahead and the accident occurred at 11.00 am
which time the weather was clear and that the accused at the
material time of accident was driving on the right lane while facing
Cheptulu when he ought to have drove on the left lane while facing
Cheptulu from Chavakali direction. His evidence was uncontroverted.
Pexh 2(a) (b) and (c) shows that the accident occurred on a bend and
therefore the accused ought not to have changed lanes.
The accused's defence that he swerved to avoid hitting a matatu that
had suddenly stopped when he himself alleged that he was driving
at 60 km/hr is unreliable since he could have been able to brake the
motor vehicle and bring it to a stop if it was to be so. I hereby dismiss
the accused's defense. I find that the accident of 26/2/2022 was
occasioned by a fault on the part of the accused. I therefore hold that
the prosecution has proved the charges against the accused beyond
reasonable doubt. On the second issue having found that the
prosecution has proved the Traffic counts herein beyond reasonable
doubt, It then follows that the accused who was the driver of motor
vehicle registration NO. KCY 042 W which caused the accident
culpable for the offence of causing death by dangerous driving
contrary to section 46 of the Traffic Act Cap 403 laws of Kenya under
section 215 of the criminal procedure code. I hereby convict him of the
two counts. This judgment was delivered at Hamisi on 17th day of
March 2026.
4. Subsequent to this conviction, the learned trial Magistrate ordained
himself with regard to sentence as follows:
Records: 1st offender
M/s Cheptinga Advocate for the accused
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 funding 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
5. The Appellant being aggrieved with the conviction and sentence filed a
memorandum of appeal dated 23rd March 2026 in which he asserted as
follows:
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.
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. 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.
j. 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.
6. It is against this background the Appellant canvassed the appeal by way of
written submissions dated 16th May 2026 in which Learned Counsel
argued and submitted that in the totality of the sentence imposed it is
manifestly excessive, disproportionate and fails the test of totality and
proportionality under the provisions of Section 46 of the Traffic Act. In the
contention of the learned Counsel on behalf of the Appellant, the
disqualification of the Appellant for 3 years from being licenced as a driver
by NTSA was an overreach in so far as sentencing parameters are
concerned. On this ground of proportionality Learned Counsel invited the
Court to be persuaded by the principles in Amos Odhiambo Okoth v
Republic [2020] KEHC 4524 (KLR) and Timothy Orwenyo Missiani v
Republic [1979] KLR 285. The Learned Counsel further submitted that the
learned Trial Magistrate erred in law by failing to appreciate that the fine
already meted upon the Appellant was sufficient and just without the
condition of disqualification of being a driving licence holder in Kenya for
3 years. He proceeded to influence the Court to be guided by the laid down
principles in: Peter Nguu v Republic [2021] KEHC 8860 [KLR], Rimba v
Republic [2024] KEHC 10371 (KLR), Charles Korir v Republic [2016] KEHC
6701 (KLR) and Francis Karioko Muruatetu & Another v Republic [2017]
eKLR. In keeping view of these issues surrounding this appeal Learned
Counsel still maintained that the fine of Kshs 260,000/= already exceeds
the nuanced of the doctrine of proportionality in sentencing.
7. From the perspective of the Appellant through his Learned Counsel, the
trial Court not only failed him in passing a disproportionate sentence but
also erred in both law and fact by failing to apply the relevant and pertinent
facts to the judicial principles, precedents and trends before arriving at the
decision on conviction. Learned Counsel majorly highlighted to this Court
the discrepancies and conflicting evidence between PW1 and other
witnesses which rendered the entire decision a misdirection of law. In this
respect, the following case law formed the basic structure for this appeals
Court to set aside the conviction according to the Appellant Counsel:
Quelicline Makonjiro V Republic [DPP] (Criminal Appeal E041 of 2021) [2022]
KEHC 11680 (KLR), Richard Munene v Republic [2018] eKLR, Timothy
Orwenyo Missiani v Republic [1979] KLR 285, Amos Odhiambo Okoth v
Republic [2020] KEHC 4524 (KLR), Wilkinson Mwanjara Mwamburi v
Republic [2017] KEHC 4321 (KLR), Rimba v Republic [2024] KEHC 10371
[KLR] and Njogu v Republic v Republic [2022] KEHC 10034 (KLR). According
to Learned Counsel, this omission and erroneous facts render both
conviction and sentence a misdirection in law.
8. The burden of proof in a criminal matter must be beyond reasonable doubt.
A contradiction of material facts as to how an accident occurred
particularly the number of motor cycles, or vehicles or pedestrian involved
should lead to an acquittal of the accused. The burden of proof rests
entirely on the prosecution the legal principle of onus probandi, which
must establish the guilt of the accused beyond reasonable doubt. The
accused is presumed innocent until proven guilty, and the burden only
shifts to the defense in specific statutory exceptions.
9. This doctrine has been expounded in the following cases:
• Woolmington v Director of Public Prosecutions [1935] UKHL 1: The
foundational House of Lords case that firmly established the "golden
thread" of English criminal law—the presumption of innocence and the
prosecution's duty to prove guilt beyond a reasonable doubt. [1, 2, 3]
• Miller v Minister of Pensions [1947] 2 All ER 372: This English case
provided the classic, widely-cited definition of "beyond a reasonable
doubt," stating the evidence must be of such a convincing character that
a reasonable person would not hesitate to rely upon it in the most
important of their own affairs. [1]
• Miller & Another v The People (Kenya): A prominent East African
appellate precedent reinforcing that a mere suspicion, regardless of how
strong, cannot substitute for the strict standard of proof in criminal trials.
• State v Maqoma (South Africa): A key regional jurisprudence example
detailing that the burden of proving all elements of an offense lies strictly
with the state, and the accused has no obligation to prove their
innocence.
10. In considering this appeal, the standard of proof, which must be
established beyond reasonable by the prosecution, is significantly the
threshold, which must be screened with the evidence so that the complete
chain on causation of the accident is within Section 46 of the Traffic Act.
11. I consider Learned Counsel’s submissions to this appeal to importing the
application of the principles on a case proved beyond reasonable doubt for
her arguments are that this threshold was never discharged by the
prosecution for the appellant to be found guilty of the offence of causing
death by dangerous driving contrary to Section 46 of the Traffic Act.
12. The other legal perspective, which could have been of significance, is the
views taken by the State in so far as this appeal is concerned. However,
that does not mean that the State could suffer prejudice for non-filing of
submissions which is implicit of conceding to the appeal. That is not the
case here for submissions deal with point of law which also the court
acknowledges as having the competence to apply the law.
Legal Analysis and Decision
13. This is a first appeal from the Subordinate Court in which jurisdiction is
well laid out in the case of Pandya v Republic [1957] EA 336 pg 37 in which
it was stated as follows:
“On first appeal from a conviction by a Judge or Magistrate sitting
without a jury the appellant is entitled to have the appellate court’s
own consideration and views of the evidence as a whole and its own
decision thereon. It has the duty to rehear the case and reconsider the
materials before the judge or magistrate with such other materials at
it may have decided to admit. The appellant court must then make up
its mind not disregarding the judgement appealed from but carefully
weighing and considering it. When the question arises which witness
is to be believed rather than another and that question turns on a
manner and demeanour, the appellate court must be guided by the
impression made on the judge or magistrate who saw the witnesses
but there may be other circumstances, quite apart from manner and
demeanour which may warrant a court in differing from the judge or
Magistrate even on a question of fact turning on the credibility of
witnesses whom the appellate court has not seen……”
14. The primary foundation for the first criminal appeal’s court is outlined in
the Criminal Procedure Code. In furtherance to this, the Court is guided
by established legal principles requiring the Judge to weigh conflicting
evidence and arrive at its own independent conclusions while making
allowances for the trial Magistrate’s advantage of seeing the witnesses
testify.
15. This jurisdiction of the first appeals Court was also reiterated in the
decision of Okeno v Republic [1972] EA 32 where the Court said:
“An appellant on a first appeal is entitled to expect the evidence as a
whole to be submitted to a fresh and exhaustive examination (Pandya v.
R., [1957] E. A. 336) and to the appellate court's own decision on the
evidence. The first appellate court must itself weigh conflicting evidence
and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A.
570). It is not the function of a first appellate court merely to scrutinize
the evidence to see if there was some evidence to support the lower
court's findings and conclusions; it must make its own findings and draw
its own conclusions. Only then can it decide whether the magistrate's
findings should be supported. In doing so, it should make allowance for
the fact that the trial court has had the advantage of hearing and seeing
the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
16. There are two issues which arise out of this appeal although in the
memorandum of appeal Learned Counsel seems to unpackage them into
various grounds of appeal to demonstrate the grievances and
dissatisfaction with the impugned judgment. As for this Court, the first
question to address is whether the finding of guilty and conviction for the
offence of causing death by dangerous driving by the Appellant was well
founded by the trial Court.
The Law
17. The offence of causing death by dangerous driving under Section 46 of
the Traffic Act Cap 403 Laws of Kenya occurs when a person causes death
by driving recklessly, at a dangerous speed, or in a manner dangerous to
the public taking into account all road circumstances and traffic levels.
The Kenyan Courts usually face variety of cases under the Traffic Act
including those which fall within the provisions of Section 46 of the Act.
From the interpretation of the law key principles have been laid down to
define as to what constitutes this offence:
• Objective Standard of Fault: The mere occurrence of an accident
is not enough; the prosecution must prove the driver significantly
departed from the standard of care expected of a reasonably prudent
driver. As established in Atito v Republic, there must be objective
danger and specific fault by the driver.
• No Deliberate Intent Required: "Fault" does not require deliberate
misconduct or intent. An objective failure to handle a vehicle safely
suffices.
• Manner of Driving: In cases like John Akama Machuchu v Republic,
overtaking in blind spots (such as on a bridge) was deemed
dangerous driving. Speed, failure to yield, and disregard for road
conditions are heavily scrutinized.
• Emergency Situations: The courts acknowledge that external
factors can create sudden emergencies. In Njeru v Republic, a
conviction was overturned because the driver was avoiding a headon collision caused by another vehicle, which meant the resulting
impact was not the driver's fault.
• Obstruction: The offense can also be constituted by leaving a
vehicle in a position or condition dangerous to the public.
18. The penalties for causing death by dangerous driving are severe and
according to the legislative scheme a maximum prison sentence of 10 years
with a mandatory driving disqualification for a minimum of two years and
extended retest before one regains his or her driving license so that he or
she can go back to the driver’s seat. This is what the Court articulated in
the case of Shah vs Republic [1969] EA in which it was construed that
Section 46 of the Traffic Act cumulatively constitutes four key ingredients
and any one of them or as a combination can form part of the indictment
in a decision to charge by the Director of Public Prosecution under Article
157 (6) (7) of the Constitution as read with Section 46 of the Traffic Act.
Thus I have in mind the elements of recklessly, or at a speed, or in a
manner, or by leaving a vehicle on a road in such a position or manner or
in such a condition as to be dangerous to the public.
19. In my view, proving any criminal offence is a matter of evidence and it is
for the Prosecution to establish any of the elements beyond reasonable
doubt that the driver’s dangerous conduct was the substantial cause of
the death. What this means is that the nature of dangerous driving can
be both reckless, at high speed or after a driver conducts himself or herself
recklessly he or she places that vehicle in a position which may be
Traffic Appeal No. E008 of 2026 Page 11 of 16
dangerous to other road users. It must be appreciated that driving is not
a one off event. It is a chain of causation issues underpinned in the range
of the reckless conduct and the range of the speed in which the vehicle
was being driven and ultimately there is a fatal accident involving a third
party who did not contribute to the cause of the accident. When one talks
about dangerous driving, it is that driving which must fall grossly below
the standard of a prudent and competent driver. This includes actions
like driving unroadworthy vehicles, excessive speeding, distracted driving
and reckless overtaking without adequate visibility. It is the duty of the
Prosecution to explicitly by way of evidence to link the dangerous driving
to the victim’s death. This is a strict liability statutory offence under the
realm of criminal negligence though the dangerous manner of driving
imports intentional or reckless acts in which it is foreseeable that such a
traffic offence was likely to occur beyond the probability metrics.
20. In this respect, the trial Court was faced with the indictment in which the
prosecution adduced evidence of PW1 by the name Silas Kiprigut who told
the Court on 26/2/2022 when his boss called him to get him some
documents from the office and he proceeded to do so by using his own
motor vehicle. That is when along the way at Cheptur area he slowed down
and motor cycle riders overtook him but there was oncoming motor vehicle
from Shamakhokho and incidentally it rammed on the motor cycles and
was a head on collision with another motor vehicle. It was at this scene
when to fatalities occurred involving two human beings. On crossexamination by Counsel for the Appellant, PW1 confirmed that he was
driving motor vehicle registration No. KAZ 365W which he purchased in
2021. He also confirmed to the trial Court that traffic was clear and the
motor cycles were ahead of him about 15 metres away and the passenger
on the motor cycle fell off the road to the left side as one faces
Shamakhokho and the other motor cycle had a collision with the oncoming
motor vehicle.
21. The other witness of importance at the trial Court is PW3 Henry who
introduced himself as a security guard at Friends Boys Kaimosi. His
evidence was to the effect that Solomon one of the deceased happened to
be his uncle but he never said anything more about the occurrence of the
accident. This was also the evidence of PW4 one Kennedy whose evidence
was on identifying the deceased one Collins as part of the victim of that
accident. These chain of circumstantial evidence turned on to point
directly to the appellant as the one who triggered the proximate cause of
the accident.
22. The investigation of this accident proceeded in earnest as stated by PC
Murkomen of Vihiga Police Station. He presented before Court the sketch
plans, legends and measurements of the scene, the motor cycle inspection
reports and also the motor vehicle which was also mentioned as part of
the main chattels involved in this accident. He therefore formed the
opinion and recommended that the Appellant be charged with the offence
of causing death by dangerous driving contrary to Section 46 of the Traffic
Act .
23. The Appellant answered the issues involved in this collision in which two
persons lost their lives. According to the Appellant on 26th February 2022
he was driving from Kisumu to Eldoret when his motor vehicle registration
number KCY 042W was involved in an accident. It was his defence that
this accident was majorly caused by a motor vehicle from Eldoret direction
which was being driven in high speed and there was a motor cyclist also
om the same road. It was the motor cyclist which had a collision with the
motor vehicle and because the surroundings were not very clear he was
not able to swerve towards the side of the pedestrians. He therefore blamed
the matatu driver as the originator of the accident.
24. In considering the evidence, learned trial Magistrate conclusively
established that the elements of causing death by dangerous driving and
all causation issues with regard to the provisions of Section 46 of the
Traffic Act fell squarely at the doorstep of the Appellant. The learned
Counsel for the Appellant submitted that on manifestation of
contradictions and inconsistencies with regard to the evidence by the
Prosecution and in piecing together the case it was wrong for the learned
magistrate to rule that the Prosecution discharged the burden of proof of
beyond reasonable doubt as to the nature of driving by the Appellant on
the material day. However, in my view there was sufficient evidence which
included that of the Investigating Officer who visited the scene after the
accident and also the Vehicle Inspection Officer report who tested the
subject vehicles and came to the conclusion that the accident was not
caused by any mechanical defect. The testimony of the Appellant was
disbelieved and the Prosecution’s perspective on what transpired when the
two victims lost their lives carried the day within the standard and burden
of proof as stipulated in Section 107(1), 108, 109 and 112 of the Evidence
Act. The rough and fair sketch plan drawn by the Police at the scene of
the accident were intended to show graphically the effect of the accident
and not an actual account of how the accident occurred. This evidence
was admitted in Court to show the position of the vehicles during the
accident and after the accident occurred. It is very clear from the evidence
that the trial Court found the Appellant guilty of causing death by
dangerous driving based on the element of reckless driving in view of the
facts that he was on the wrong lane if the record of the trial Court is
anything to go by.
25. I hold the view that the above represents the facts and the law on the
matter as at now and therefore binding. Having regard to the position of
the law, and the evidence as captured by the Learned Trial Magistrate I
arrive at a conclusion that I find no merit in this appeal with regard to a
finding of guilty and subsequent conviction against the Appellant for the
two counts of causing death by dangerous driving contrary to Section 46
of the Traffic Act Cap 403 Laws of Kenya.
26. The second cluster, which forms the grounds of appeal, constitutes the
issue of sentence. The law is now well settled as to the jurisdiction of an
appeals Court to interfere with the decision of the trial Court on the
sentence imposed. I therefore reiterate the principles in the Court of
Appeal Case in the Benard Kimani Gacheru vs. Republic [2002] eKLR:
“It is now settled law, following several authorities by this Court and
by the High Court, that sentence is a matter that rests in the discretion
of the trial Court. Similarly, sentence must depend on the facts of
each case. on appeal, the appellate court will not easily interfere with
sentence unless, that sentence is manifestly excessive in the
circumstances of the case, or that the trial court overlooked some
material factor, or took into account some wrong material, or acted on
a wrong principle. Even if, the Appellate Court feels that the sentence
is heavy and that the Appellate Court might itself not have passed
that sentence, these alone are not sufficient grounds for interfering
with the discretion of the trial court on sentence unless, anyone of the
matters already stated is shown to exist.”
27. The major complaint by the Appellant is with the effect that the sentence
imposed by the trial Court was punitive, excessive, harsh and runs foul
with the doctrine of proportionality. The doctrine of proportionality
dictates that a criminal sentence must fit the gravity of the offence,
balancing the severity of the crime with the offender’s culpability. It
prevents both excessive and arbitrarily lenient punishments, ensuring
sentences are just, consistent and reflective of the harm caused. In the
modern theory of punishment, within our statutory regime under the
Traffic Act as toned with the Sentencing Policy Guidelines 2023 it is
classified as either retributive or deterrent. The justification of punishment
in our criminal justice system flows directly from the person’s desert.
There is an obligation by Courts handling criminal cases under the
classification of serious offences like causing death by dangerous driving
to punish sufficiently and to speak out against the offence and the
intention of Parliament is to ensure that the offender has got to be rightly
Traffic Appeal No. E008 of 2026 Page 15 of 16
punished as punishment honors them as a rational being with intrinsic
value.
28. The circumstances of this offence called for scaling of punishment in
relation to the offence in which Article 26 of the Constitution on the right
to life was violated and within the findings of the Trial Court, this fatal
accident was avoidable if the Appellant had taken evasive measures in the
course of his driving along the Eldoret-Kisumu road. From the facts of
this case, I consider the sentence imposed by the trial Court to reflect the
gravity of the offence relative to other offences and the various degrees of
seriousness in the range of the conduct of the offender covered by the
offence on the fateful date of 26th February 2022 in broad daylight at
1100hrs.
29. It is within this framework, proportionality is primarily concerned with
measuring sentence imposed and its severity to facilitate fairness,
consistency, parity and predictability in sentencing in one of the major
offences committed in our roads and innocent Kenyans right to life is
terminated prematurely by an offensive conduct which could be avoided
at all levels. For instance, the Appellant is complaining about being
disqualified to hold a driving licence for the next 3 years. In his
submissions this was punitive, harsh and excessive punishment rendering
him to be subjected to double jeopardy and therefore pleaded with the
appeals court on account of that to redress that violation by setting aside
the verdict by the trial Court. It should be borne in mind that factors
relevant to the determination of a sentence within the laid down objectives
and principles under our Sentencing Policy Guidelines depend on the
chosen objective of sentencing by the trial Court such as deterrence,
rehabilitation, reparation or public protection. This was not vengeance on
the part of the Court but retribution for the heinous crime in which two
citizens lost their lives in circumstances which are not excusable or
justifiable. This is what retribution stands for in a criminal context. It
represents an objective, reasoned and measured determination of an
appropriate punishment which properly reflects the moral culpability of
the offender and in our case the Appellant having regard to the intentional
risk taking by the Appellant and the consequential harm caused by his
conduct on the material day. This was a fit sentence proportionate to the
seriousness of the o
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