1.The Appellant, Hedrick Lwangu, was charged with three (3) counts. In count 1, the Appellant was charged with operating a school vehicle on the road without a road service licence contrary to section 26(1) as read with section 30(7) of the National Transport and Safety Authority Act No. 33 of 2012. The particulars of the offence were that on the 25th day of January, 2021 at about 0700 hours along Mombasa - Nairobi road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he did operate the said school vehicle without a valid road license issued by the National Transport and Safety Authority for the carriage of school going children.
2.In count II, he was charged with driving a motor vehicle on the road whilst under the influence of alcohol contrary to section 44(1) of the Traffic Act, cap 403, Laws of Kenya. The particulars were that on the 25th day of January, 2021 at about 0700 hours along Mombasa-Nairobi Road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he drove the said school van whilst under the influence of alcohol reading 0.542mg/L of breath on the breathalyzer thus exceeding the required limit of 0.00mg/L of breath for school vehicle drivers by 0.542mg/L.
3.In count III, he was charged with driving a commercial vehicle on the road without an inspection sticker contrary to section 12A (3) as read with section 29 of the Traffic Act, cap 403, Laws of Kenya. The particulars were that on the 25th day of January, 2021 at about 0700 hours along Mombasa-Nairobi Road within Machakos County, being a driver of a school Vehicle registration number KCJ 431V make Toyota Hiace van, he drove the said school van without a valid inspection sticker. (Expired with effect from July 20, 2020)
4.The Appellant, on January 25, 2021initially pleaded guilty to count I and III but pleaded not guilty to count II. However, on February 15, 2021, he changed this plea to guilty. He was therefore convicted on his own plea of guilty in respect of all the three counts.
5.In mitigation, he was remorseful and sought the leniency of the court. The trial court in sentencing noted that he was driving a school van meant for transporting school children and sentenced him to pay a fine of Kshs. 200,000 in default to serve one year’s imprisonment in count 1, pay a fine of Kshs 10,000 in default to serve three (3) months imprisonment in count II and to pay a fine of Kshs 50,000 in default to serve one year imprisonment in count III. In addition, the Appellant was disqualified from obtaining or holding a driving licence for a period of 12 months. The sentences were directed to run concurrently.
6.Dissatisfied by this judgement, the Appellant lodged this appeal in which he challenges both his conviction and sentence on the following grounds;a.The Learned Trial Magistrate erred in law and in fact by convicting and sentencing the accused based on defective charges.b.The Learned Trial Magistrate erred in law and in fact by convicting the accused based on charges not supported by facts.c.The Learned Trial Magistrate erred in law and in fact by sentencing the accused and imposing fines exceeding those prescribed under law.d.The Learned Trial Magistrate erred in law and in fact by failing to consider the mitigation of the appellant.e.The Learned Trial Magistrate erred in law and in fact by misapprehending wrong legal principles and drawing wrong inferences to the prejudice of the appellant.
7.It was submitted on behalf of the appellant that the sentence imposed in count I is harsh and excessive. According to the Appellant, though the charge was for carrying children without the particular licence to carry school children, the subject motor vehicle had a valid road licence save for the fact that it was not particularly licenced to carry children. It was therefore submitted that the amount of Kshs. 200,000/= imposed as fine was excessively high. According to the Appellant, trial magistrate, despite mitigation by the accused, imposed the maximum sentence of imprisonment under the said Section 30(7), being one year. The Court was urged to exercise its unfettered jurisdiction and reduce both the fine and imprisonment imposed by the trial court under Count one.
8.On count II, while he applauded the sentence he felt that the directive barring him from taking a licence for a period of twelve months was excessively harsh as this was his source of income.
9.With regard to count III, he submitted that the sentence under Section 29 of the of the Traffic Act, cap 403, Laws of Kenya prescribes for a maximum fine of Kshs. 10,000 or imprisonment for a maximum of three months or both and the sentence of Kshs. 50,000 fine in default one year imprisonment was illegal.
10.The Respondent did not submit in this appeal.
11.I have considered this appeal which is substantially against the sentence. Section 348 of the Criminal Procedure Code bars appeals from subordinate courts where an accused was convicted upon a plea of guilty except on the extent and legality of sentence by providing that:-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 and legality of the sentence.
12.In the case of Olel vs. Republic  KLR 444, it was held that:-
13.It follows that the appellant is, by virtue of this section, and authority, barred from challenging the conviction and his only recourse was to challenge the extent or legality of the sentence imposed on him by the trial court.
14.That bar, in my view only operates where the plea is unequivocal. Accordingly, that bar does not bar the Court from inquiring as to whether a prima facie plea of guilty was unequivocal or not. Similarly, it does not bar the court from making an inquiry as to whether the facts constituted any offence. Where the plea in unequivocal, I agree with Mwita, J’s holding in John Shikoli Atsunzi vs. Republic  eKLR that that would make the conviction unlawful thus justifying the court in addressing itself on the issue of conviction.
15.In Alexander Lukoye Malika vs. Republic  eKLR the Court of Appeal identified the situations in which a conviction based on a plea of guilty can be interfered with as follows:
16.I have considered the material placed before me. The manner of recording of a plea is provided for in section 207(1) and (2) of the Criminal Procedure Code provides as hereunder:(1)The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he pleads not guilty, guilty or guilty subject to a plea agreement;(2)If the accused person admits the truth of the charge otherwise than by a plea agreement his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there appears to it sufficient cause to the contrary:Provided that after conviction and before passing sentence or making any order the court may permit or require the complainant to outline to the court the facts upon which the charge is founded.
17.The manner of recording plea of guilty was dealt with in Ombena vs. Republic  eKLR where the Court of Appeal held that:
18.It is therefore clear that the charge, the particulars and the facts must be read to the accused in his language or in a language he understands. This is my understanding of the decision in K N vs. Republic  eKLR, where it was held that:
20.In this case, the record reveals that the charges were read over to the Appellant and after he pleaded guilty to the same , the prosecution simply stated that the facts were as per charge sheet and then proceeded to produce the Alcohol Ticket. Since the facts were never read over to him, the appellant did not reply to the facts.
21.In this appeal, it is submitted that the motor vehicle in question did have a road service licence and that what it did not have was the licence to carry school going children. However, the charge was that it did not have a road service licence. The particulars, as they appeared in the charge sheet were however not clear. While the offence was that of operating a school vehicle on the road without a road service licence the particulars of the offence stated that he was operating the vehicle without a valid road license issued by the National Transport and Safety Authority for the carriage of school going children. This matter would have been clarified had the facts been read over to the appellant. He might have even changed his plea upon hearing the facts of the offence. This was never done.
23.It is clear that the manner in which the proceedings were conducted did not strictly comply with section 207(1) and (2) of the Criminal Procedure Code. In the premises the appellant’s plea cannot be said to have been unequivocal.
24.What is the course available to the Court in such circumstances? In other words, should the Court order a retrial? The Court of Appeal in the case of Ahmed Sumar vs. R (1964) EALR 483 offered the following guidance:
28.In this case the appellant paid the fine and was released. However, the period for which he was suspended from holding a driving licence has lapsed. To subject him to a retrial would have the effect of exposing him to double jeopardy. Accordingly, I set aside his conviction, quash the sentence and in these unique circumstances, he is set at liberty forthwith unless otherwise lawfully held. Let the fine paid be refunded to him.
29.It is so ordered.