No Traffic Offender Shall Be Held by Police for Offences Punishable by a Fine Only or by Imprisonment for a Term Not Exceeding Six Months in Kenya

Kenya's judiciary has established clear guidelines on the handling of traffic offenders, with a key principle being that "No traffic offender shall be held by police for offences punishable by a fine only or by imprisonment for a term not exceeding six months." This guideline represents an important approach to the administration of justice for traffic violations in Kenya, balancing law enforcement with individual rights.

Legal Framework and Administrative Guidelines

The principle that traffic offenders should not be detained for minor offenses forms part of a comprehensive set of guidelines issued by the Kenyan judiciary. These guidelines were released by the Chief Registrar of the Judiciary, Ann Amadi, to provide clarity on how the Traffic Act, Chapter 403 of the Laws of Kenya, should be implemented by law enforcement officers¹. While the Traffic Act remains the primary legislation governing traffic cases in Kenya, these supplementary guidelines were deemed necessary to ensure proper administration of justice¹.

The guidelines were developed collaboratively between the Judiciary, the National Council of Administrative Justice, and the National Police Service as a unified approach to traffic law enforcement². This multi-institutional effort underscores the importance placed on reforming how traffic offenses are handled within Kenya's criminal justice system.

Purpose and Rationale Behind the Guideline

The primary purpose of this guideline is to decongest police cells and prisons by making the legal process less burdensome for traffic offenders¹. This reflects a recognition that many traffic offenses are minor in nature and do not warrant the deprivation of liberty, especially before trial. Data from prior to 2015 indicated that a significant number of people were being detained for traffic offenses, with approximately one in ten people in police custody at any given time being held for such offenses³.

The guideline also aims to create a more proportionate response to traffic violations, ensuring that the punishment fits the offense while still maintaining accountability. By focusing on fines and court appearances rather than detention, the system can operate more efficiently while respecting the rights of citizens.

Procedural Framework for Traffic Offenders

Rather than immediate arrest and detention, the guidelines establish a clear process for handling traffic offenders:

1. A suspected offender shall be issued with Court Summons or a Notification to Attend Court (NTAC) on a convenient date within seven days, clearly indicating the charges, the court, and the time to take plea¹⁴⁵.
2. The offender must attend court on the date and time indicated in the NTAC to take a plea¹⁵.
3. Before the plea is taken, the Magistrate shall ensure that any cash bail collected by the Police from the suspect is available in Court¹⁵.
4. The offender must remit to court the maximum amount payable for the offense if they opt to plead guilty in writing upon issuance of the NTAC¹⁵.
5. Traffic courts shall process payment of traffic fines in open court, ensuring transparency¹⁵.
6. No accused persons in traffic cases will be locked up in cells without first being granted time, place, and adequate facilities to pay fines or bail¹⁴⁵.
7. Release on reasonable bail or bond conditions pending charge or trial for all traffic offenders shall be fast-tracked¹⁵.

Exceptions and Circumstances for Arrest

While the principle generally prohibits the detention of traffic offenders for minor offenses, there are specific circumstances under which arrest may still be warranted:

1. If the traffic offender fails to pay a fine that was imposed on them, they may be arrested⁴.
2. If the offender fails to attend a court hearing regarding the offense committed, they may be arrested⁴.
3. For serious traffic offenses such as causing death by dangerous driving, driving under the influence of alcohol, driving a vehicle without insurance, and speeding, police officers can still arrest offenders and/or detain offending vehicles³.
4. A committal warrant for prison custody will only be issued if the offender is unable to pay the fine or cash bail after being given reasonable time and facilities to do so¹⁵.
5. If the offender does not attend court, the cash bail will be forfeited, and a Warrant of Arrest issued⁵.

Common Traffic Offenses and Their Penalties

Understanding which traffic offenses fall under this principle requires knowledge of common traffic violations in Kenya and their associated penalties. Some common offenses include:

1. Over speeding - Fine: Ksh 3,000⁶.
2. Failure to Wear Seat Belts - Fine: Ksh 500⁶.
3. Careless Driving - Fine: Ksh 5,000 to Ksh 10,000, depending on severity⁶.
4. Driving Under the Influence (DUI) - Fine: Ksh 10,000 or a possible jail term⁶.
5. Driver using a mobile phone while the vehicle is in motion - Fine: Ksh 2,000⁷.
6. The driver of a motor omnibus or matatu picking or setting down passengers in an unauthorized place - Fine: Ksh 3,000⁷.
7. Travelling with part of the body outside a moving vehicle - Fine: Ksh 1,000⁷.
8. Touting - Fine: Ksh 3,000⁷.

According to the Traffic (Minor Offences) Rules, 2016, none of the minor traffic offenses are liable for a prison term, with fines ranging between Ksh 500 and higher amounts depending on the offense⁸.

Implementation Challenges and Future Developments

Despite these guidelines, implementation challenges may persist. The transition from a system that previously relied heavily on arrest and detention to one focused on summons and fines requires significant adjustments in law enforcement practices and public expectations.

Looking forward, the Minister for Transport, Kipchumba Murkomen, has stated that the government is working on technology that will charge instant fines to motorists violating traffic regulations⁴. This technology is reportedly in the testing stage and will be rolled out to the public at a later date, potentially further streamlining the handling of traffic offenses.

Conclusion

The principle that "No traffic offender shall be held by police for offences punishable by a fine only or by imprisonment for a term not exceeding six months" represents an important reform in Kenya's approach to traffic law enforcement. By focusing on more proportionate responses to traffic violations, this guideline aims to create a more efficient, just, and humane system.

This approach aligns with modern criminal justice principles that emphasize proportionality in punishment and the use of detention as a last resort. As Kenya continues to develop its traffic enforcement systems, including the introduction of technology for instant fines, the implementation of this principle will likely continue to evolve, hopefully leading to better outcomes for both the justice system and Kenyan citizens.