Driving is quickly becoming an indispensable skill, not just as a way to get around but also as a way to generate income. Any person regardless of their level of education or age can easily learn to drive a car or ride a bike and in less than 30 days in a driving school and an assessment most adults are licensed to drive. All I can recollect from my brief stint at a driving school was spending time navigating a model town board using toy cars, memorising road signs and waiting my turn to drive at the back of a truck. At no point do I remember being taught about any traffic offences at best all I knew is you should not drive over the prescribed speed limit or drink and drive. Given that traffic offences form a large part of the driving experience in Kenya it is ironic no one ever teaches/tells you about them and you only discover them once you have committed one usually with a traffic cop is standing next to your vehicle.
It is therefore not surprising that two thirds of the criminal offences committed in some counties are traffic related offences. This is an untenable situation for courts which are still hearing other cases from twenty years ago. Against this context parliament passed the Traffic (Minor Offences) Rules, 2016. These rules make provisions for a mechanism where one can plead guilty or not guilty to a minor traffic offence by completing a form (notification) that is issued by a police officer and sending the same to court with the fine amount if you choose to plead guilty or appearing in court if you choose to plead not guilty. Interesting stuff right? (We hope). In this article we shall breakdown the provisions of the Traffic (Minor Offences) Rules 2016 and hopefully at the end you will not be as clueless about traffic offences as you were when you left Driving School.
What is a Minor Traffic Offence?
The Traffic Act does not expressly define what a minor traffic offence is however, Section 117 provides that the Minister may prescribe a schedule of minor traffic offences. The Traffic (Minor Offences) Rules, 2016 provide a list of more than 30 offences that the Minister has designated as Minor. They include, driving without a valid driving licence, exceeding speed limit for your class of vehicle by up to 20kph, failure to display reflective triangles/lifesavers when your car stops on the road etc. We shall provide a table of Minor Traffic Offences at the end of this article.
From examining the schedule we can conclude that none of the minor traffic offences are liable for a prison term and the fines range between Kshs. 500 – Kshs.10,000 and committing them results in less dire consequences as opposed to for example: driving under the influence of drink where one would be liable for a fine not exceeding one hundred thousand shillings or a term not exceeding 2 years or both.
There is a maximum fine that you can pay for each minor traffic offence
Rule 3 of the Traffic (Minor Offences) Rules, 2016 provides that the fines stated in schedule of the minor offences are the maximum fines that can be passed for each offence notwithstanding other provisions of the Law.
Unfortunately, because most people do not know the offences or the maximum fines prescribed by the law, law enforcement cartels take advantage of this ignorance to pass higher penalties. Most people appear before the Traffic Court unrepresented and oblivious of the law and during sentencing they accept whatever fine passed. It is critical to acquaint yourself with these provisions to avoid a situation where you are treated unfairly.
How are Minor Traffic Offences supposed to be dealt with?
i . Notification by the Police of the Minor Offence
Section 117 of the Traffic Act provides that when you commit a minor traffic offence a police officer is required to make you aware of the infraction using a notification in the prescribe form.They may issue the notification in person or by placing it on a prominent place on the vehicle concerned. The notification is a charge sheet as well as a summon. It discloses the offence committed and the time and Traffic Court you are supposed to attend.
If the notification is served in person and you deny the charge you are required to attend court within 48 hours but if it is affixed onto your vehicle you are to attend court after 7 days of such service.
ii. Pleading guilty or not guilty
This is where it gets interesting. You are not obliged to attend court to answer the charge. You can plead guilty in writing and send the notification together with the maximum penalty to the court by registered post or in person.
The notification form is divided into sections. Section A – contains particulars of the person, the vehicle and the charge. Section B – Denial of Charges, Section C – Admission to Charges, Section D – Payment Details, Section E – Details of Police Officer and Section F – Sentencing.
If you plead guilty all you need to do is fill in Section C noting any mitigating circumstances and Section D Payment details and send it to court within the time indicated in the Notification. The court can accept the fine or lower it and refund a portion of it after considering your mitigating circumstances.
If you plead not guilty you are supposed to pay a cash bail equal to the statutory penalty and attend the Traffic court on the date in the notification. After hearing you the court will decide whether to convict and fine you or acquit.
iii. Penalty for Failing to respond to the notice or tearing /defacing the summons
Section 117 (8) of the Traffic Act provides that if you fail to attend court on the date and time of the notice or plead guilty to the offence. The Court may issue warrants for your arrest and unless you show good cause you will be found guilty and be liable for a fine of Kshs. 200 or one month in prison.
Section 117(9) provides that if any unauthorized person removes a notice affixed on a vehicle or tears/ defaces the notice they are guilty of an offence and liable upon conviction to a fine not exceeding Kshs. 200 in the first instance and Kshs.500 for subsequent convictions or 3 months imprisonment.
iv. What happens if this process is not followed
Notwithstanding these provisions, we know that on the ground things are different and instead of notifying you of the infraction and the process to be followed most traffic cops alarm you or misrepresent facts.
The next time you are stopped for a minor traffic offence we suggest that you firmly but respectfully ask for the Notification and indicate you wish to pay the prescribed fine. Naturally, you would need to know the minor traffic offences and the fines prescribed. If you cannot recall them print the Schedule and keep it in your car just in case.
There is no provision in the Traffic Act or the Police Act authorizing Police officers to confiscate Driving Licences for Minor Traffic Offences unfortunately this continues to be done. We can only hope that with this knowledge you are better equipped to handle such a situation.
Challenges in enforcing the Traffic (Minor Offences) Rules, 2016
It is easy to see why the rules were passed. They were intended to free up the courts and to make it faster for them to deal with minor traffic offences. However, in 2018 a study noted that traffic offences in Nairobi and Narok still make up three quarters of the criminal offences. This can be attributed to any of the following:
i. Most people are not aware of what constitutes minor traffic offences or the penalties and how they should be handled
It is impossible or at least incredibly difficult to enforce the Law if people are not aware of it. If you do not know that you can easily pay a fine for a minor traffic offence and chances are that it would not be as much as a bribe then it is very likely that at any time you are confronted by a police officer you will pay whatever he asks.
ii. Making Traffic offences criminal offences has proven not to be deterrent
The courts are already swamped with cases and in most traffic related ones when they convict they only sentence one to a fine. Despite the large number of traffic related offences, very few people are serving jail terms for them.Consequently, people only know how much they it costs to get out of traffic offence mostly through bribes.
The provision for pleading guilty under section 117 is contradictory as people are not likely to plead guilty and be convicted of an offence if it ends up in their permanent record. It is not clear whether such a plea would affect your Certificate of Good Conduct. In our opinion a minor traffic offence should not affect it as it would defeat the rationale of the provision.
iii. The system is not efficient
Today you can access and pay for any service with a few taps of on your phone. Asking people to send a fine to court in person or through registered post is simply inefficient. Especially since most traffic offences are usually committed while one is travelling or outside the area they reside. That’s why even if you know all these rules, you are far more likely to still pay a bribe as it is more convenient.
In Dubai, a system is in place whereby traffic infractions are monitored in real time by cameras along the roads. In case of any violations you are automatically fined and a record of your fines kept online with the Road Traffic Authority. You are expected to monitor you profile and pay any outstanding fines. For certain offences your car may be impounded or your license suspended. They also automatically issue demerit points or merit points. These system has proven to be more deterrent.
In Kenya a structure is already in place to implement such a system. CCTV cameras were installed on the road a few years back and there is already an institution the National Transport Safety authority. As time and structures keep changing,we hope to see the implementation and full usage of such systems.
The Traffic (Minor Offences) Rules, 2016 are an impressive piece of legislation. However, they fall short of their objects because most people are unaware of them, the system is inefficient and it remains far much more convenient to bribe a police officer.
LawyerWangu has assisted you with the first problem. We believe that empowering you with this information makes you better equipped to deal with minor traffic offences. For the rest of the shortcomings we can only hope that parliament considers decriminalizing minor traffic offences and more efficient systems are put in place that are more deterrent.
SCHEDULE OF MINOR TRAFFIC OFFENCES
NATURE OF OFFENCE
PENALTY IN KSHS.
OFFENCES RELATING TO SPEEDING
Exceeding speed limit prescribed for class of vehicle. By 1-5 kph
Exceeding speed limit of 50 kph or as prescribed by a traffic sign by 1-5 kph
Exceeding speed limit prescribed for class of vehicle. By 6-10 kph
Exceeding speed limit of 50 kph or as prescribed by a traffic sign by 6-10 kph
Exceeding speed limit prescribed for class of vehicle. By 11-15 kph
Exceeding speed limit of 50 kph or as prescribed by a traffic sign by 11-15 kph
Exceeding speed limit prescribed for class of vehicle. By 16-20 kph
Exceeding speed limit of 50 kph or as prescribed by a traffic sign by 16-20 kph
OFFENCES RELATING TO LICENSES, PLATES AND INSPECTION
Driving without identification plates affixed or plates not fixed in the prescribed manner.
Driving a vehicle without a valid inspection certificate inspected
Driving without a valid driving license endorsement in respect of the class of vehicle
Failure to renew a driving License
Failing to carry and produce a driving license on demand
OFFENCES RELATING TO PUBLIC SERVICE VEHICLES(PSVs) AND MOTORCYCLES
Driving a PSV while being unqualified.
Unlicensed person driving or acting as a conductor of a PSV.
Owner or operator of PSV employing an unlicensed PSV driver or conductor.
Failure to refund fare paid for incomplete portion of journey for which full fare has been paid.
Failure of a PSV driver or conductor to wear special badge and uniform.
Person who while not being the designated driver of a PSV drives the vehicle.
The driver of a PSV who lets an unauthorized person to drive.
Failure of a conductor of PSV to keep seat belts in a clean, dry and generally wearable condition.
Failure to fit prescribed speed governor in PSV and Commercial Vehicle.
Failure of a PSV to carry functional fire extinguishers and fire kits.
The driver of a motor omnibus or matatu picking or setting down passengers in a place that is not authorized as a bus stop or terminal.
Driving or operating a PSV with tinted windows or windscreen
Rider of motor cycle carrying more than one pillion passenger.
Motorcycle rider riding without protective gear.
Motorcycle passenger riding without protective gear.
OFFENCES RELATING TO PASSENGERS AND PEDESTRIANS
Pedestrian willfully obstructing the free passage of vehicles
Failure to wear seat belt while motor vehicle is in motion.
A passenger alighting or boarding any omnibus or matatu at a place which is not authorized as a bus stop or terminal.
Travelling with part of the body outside moving vehicle.
GENERAL DRIVING OFFENCES
Driving on or through a pavement or a pedestrian walkway.
Failure of a driver to obey any directions given, whether verbally or by signal, by a police officer in uniform, in the execution of their duty.
Failure of a driver to conform to the indications given by any traffic sign.
Failure of a driver to stop when required to do so by a police officer in uniform.
Causing obstruction by allowing a vehicle to remain in any position on the road so as to obstructing or causing inconvenience or to other traffic using the road.
Failure to display reflective triangles or lifesavers in cases where any part of the vehicle remains on the road in a position so as to obstructing or causing obstruction.
Driving a vehicle on a footpath.
Failure of a vehicle to carry reflective/warning signs (lifesavers).
Driver using a mobile phone while vehicle is in motion
Learner failing to exhibit “L” plates on the front and rear of the motor vehicle.
Failure by owner of vehicle to have seat belts in motor vehicle
1,000 for every seat that is not fitted or not of proper standard or specification.