An appeal court has explained the conviction of a motorist who had been found guilty of ‘careless driving’ and fined KSh200,000 or sentenced to three years’ imprisonment.
According to the court ruling, the offense of careless driving ceased to exist under Kenyan law after amendments to Section 49(1) of the Traffic Act in 2012.
Further, the Court stated that Section 49(1) of the Traffic Act, 2012, was replaced with the offense of driving without due care and attention.
Justice S. Chirchir found that charging and convicting the appellant for a non-existent offense violated Article 50(2)(h) of the Constitution.
“Article 50 (2) of the Constitution sets out the rights of an accused person, and under Article 50 (2)(h) the rights of an accused person include the right “not to be convicted for an act or omission that at the time it was committed or omitted was not, inter alia, ‘ an offense in Kenya ‘ ” Justice Chirchir ruled.
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Court on Nullifying the Penalty
In explaining why the sentence imposed on the accused was invalid, Justice Chirchir stated that the appellant had committed the offense on 02/5/2018 and that there was no offense of careless driving under the Traffic Act.
Further, the court noted that the appellant was arraigned on the Traffic Act offense that infringed Article 50(2) (h) of the Constitution, rendering both the proceedings and the conviction void.
Following the non-compliance with the laws of the Kenyan Constitution 2010, which requires issuing charges only for offenses known in the law, the judge requested that the penalty of KSh 200,000 be refunded to the appellant.
“The Appeal succeeds. The conviction of the Appellant is hereby quashed and the sentence set aside. The amount of Ksh. 200,000 to be refunded to him forthwith,” Justice Chirchir directed in his ruling.
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Details of Charges on Appellant
According to the ruling, the Appellant was charged and convicted of the offense of careless driving under Section 49(1) of the Traffic Act.
Section 49(1) of the Traffic Act states that any person who drives a vehicle without consideration is guilty of an offense and is liable.
Further, the Traffic Act emphasizes that a first-time offender can receive a penalty not exceeding a one-year jail term or a KSh 100,000 fine.
The charges followed the appellant, a driver of a Premio Corona, hitting a Toyota Hiace of Nyena Sacco and damaging the vehicle.
However, the accused appealed, arguing that the excessive penalty of KSh 200,00 or a 3-year jail term was imposed without mitigation before sentencing.
Further, during the appeal, the appellant laid the ground that the initial court’s sentencing was biased towards the appellant, as well as the trial process.
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