https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11382

Swaleh v Republic (Criminal Appeal E120 of 2025) [2026] KEHC 11382 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 11382 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E120 of 2025 JK Biomdo, J July 15, 2026 Between Answar Abdallah Swaleh Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. R.M Amwayi (PM) in Kaloleni SPM Traffic Case No. E007 of 2025) Judgment 1.The appellant herein, Anwar Abdallah Swaleh, was convicted by the Senior Resident Court Kaloleni for the following offences:i.Count 1 - Causing death by dangerous driving contrary to section 46 of the Traffic Act. The Particulars of the offence were that on 3 March 2025 at Bonje area along Nairobi Mombasa Road of Rabai sub-county within Kilifi County being the driver of M/V reg. KCV 883M Toyota Landcruiser, did drive the said motor vehicle along the said road in a manner so dangerous to the public in regardless of the speed, nature of the road and amount of traffic expected as that time thereby causing the death of DE Mozzi Karen.ii.Count II - Causing death by dangerous driving contrary to section 46 of the Traffic Act. The Particulars of the offence were that on 3 March 2025 at Bonje area along Nairobi Mombasa Road of Rabai sub-county within Kilifi County being the driver of M/V reg. KCV 883M Toyota Landcruiser, did drive the said motor vehicle along the said road in a manner so dangerous to the public in regardless of the speed, nature of the road and amount of traffic expected as that time thereby causing the death of Curcio Marco. 2.He was sentenced to a fine of Ksh. 100,000.00 for each Count and in default to serve one (1) year imprisonment for each Count. 3.The appellant denied the allegations at the trial court prompting the trial where the prosecution called nine (9) witnesses to prove its case. PW 2 Alessia Luchini Matteo, testified that she was from Italy and had visited Kenya in February 2025. On 3 March 2025, she together with PW3 Matteo Gritti, PW4 Renata Fortarel, De Mozzi Karen (deceased) and Curcio Marco (deceased) were travelling to Diani Beach aboard Toyota Landcruiser KCV 883M driven by the appellant, Anwar Abdallah Swaleh. 4.She further stated that the road was clear, there were no other vehicles on the road, the appellant was driving very fast compared to other vehicles, he had two phones which he was using throughout the journey, he drove while holding the phone in his hands and that she together with the other passengers, complained about his driving. She went on to testify that the appellant lost control, veered of the road in a zigzag manner and the vehicle rolled several times and overturned. They were assisted out of the vehicle by good Samaritans, her legs were broken and she could not walk. The other passengers suffered severe injuries and they were taken to hospital. PW3 corroborated her testimony and added that De Mozzi Karen and Curcio Marco died as a result of the accident. PW4 reiterated PW2’stestimony and added that she suffered injuries and had undergone several surgeries. 5.PW7 PC Philip Kosgey attached to Rabai Police station stated that on 3 March 2025 at about 1500 hours, he received information from members of the public that an accident had occurred at Bonje area. He together PW8, PC Victor Etyang, visited the scene which was near Hash petrol station along Mombasa Nairobi Highway where they found motor vehicle Reg No. KCV 883 M Toyota Landcruiser had overturned. They found people still assisting the occupants get out of the vehicle. One person (later identified as Curcio Marco) had already died while the other four were still stuck inside the vehicle. They managed to get them out, most of them were seriously injured and were rushed to the hospital. One lady (De Mozzi Karen) was seriously injured and was taken to the ICU where she subsequently died. 6.PW9 PC Wameri Christopher Okeyo from Rabai police station traffic department testified that on 3 March 2025, he received a call from the Base Commander about an accident at Bonje area. On arrival at the scene, he found PW7 and PW8. He prepared a rough scene plan (exhibit 6), took measurements and legends of the scene (exhibit 7) and prepared a fair sketch (exhibit 5). He established that the road was a dual carriage measuring 14 meters, the vehicle had rolled and landed 87 meters off the road on the left side facing Mombasa general direction, it had been extensively damaged and there were skid marks measuring 17 meters. He also took photos which were produced as exhibits and that he found the driver, (the appellant) had bruises and was complaining of body pain. 7.PW1 Dr Ngali Mbooko, a pathologist conducted a post mortem on both De Mozzi Karen and Curcio Marco on 4 March 2025. That he formed the opinion that De Mozzi Karen suffered traumatic asphyxia due to severe chest and lung injuries consistent with road traffic accident while Curcio Marco died from multiple organ injuries consistent with road traffic accident. He produced post mortem reports for the two deceased persons. PW6 testified that she identified the bodies of the two deceased as De Mozzi Karen and Curcio Marco who were tourist prior to the autopsy and later processed their death permits. 8.PW5 Samsom Kirokment, a motor vehicle inspector from Mombasa Motor Vehicle Inspection Center produced the motor vehicle inspection report (exhibit 3)of KCV 883M which noted the damages on the vehicle and established that the vehicle had no pre-accident defects which might have contributed to the accident. 9.At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence. 10.In defence, the appellant stated that he was the driver of the ill-fated vehicle which was from Voi heading to Mombasa while carrying six (6) tourists (PW2,PW3,PW4, the two deceased and a child). That he was driving at a speed of 45kph at Bonje which was hilly where they were involved in a accident. He denied that he was using the phone and went on to say that a trailer which he did not identify came into contact with the vehicle, one of the tourist became anxious while the other jumped from the back, held his neck and hands, scratched him and tore his clothes. The vehicle then overturned where two people died, one on the spot while the other in the hospital while undergoing treatment. He blamed the accident on the tourists. 11.At the close of the trial, the appellant was found guilty, convicted and sentenced. Aggrieved, he filed the present appeal where he listed 11 grounds summarised hereunder contending that the learned trial magistrate erred in law and fact:i.By holding that the prosecution proved that the death of the two deceased what caused by accident.ii.By placing reliance on the evidence of PW1 who did not present evidence of his qualifications.iii.By holding that the appellant was driving carelessly without any evidence or regard to all circumstances as required under Section 46 (1) of the Traffic Act.iv.By holding that the appellant was driving fast and in a dangerous manner without evidence.v.By failing to consider the appellant defence as to the cause of the accident.vi.By finding that the prosecution had proved its case beyond reasonable doubt.vii.By convicting and sentencing the appellant as it did. 12.The appellant filed written submissions which they relied on at the hearing of the appeal while the Respondent submitted orally that they did not intend to file written submissions but opposed the appeal and will rely on the record. 13.The appellant submitted that the prosecution did not prove beyond reasonable doubt that the cause of death resulted from the accident. He argued that PW1 did not produce evidence of his qualifications in court to entitle him testify as an under Section 48 of the Evidence Act and that no medical report was availed despite the fact that evidence showed that Karen De Mozzi (deceased) died in hospital. 14.It was further submitted that the prosecution did not prove that the appellant drove the vehicle recklessly since no direct evidence was placed before the court as proof thereof. It was further contended that PW2 did not give sworn evidence thereby offending Section 151 of the Evidence Act. 15.The appellant contended that the prosecution did not prove the elements of the offence by failing to establish that he drove recklessly having regard to the nature of the road, condition and use of the road and amount of traffic, i.e, that there was no evidence of over speeding and/or dangerous driving; that the court failed to take into account that the vehicle was hit by a truck which caused it to lose control; that the incident were so sudden that the appellant could not react; that the appellant was driving at 45kph and was not using the phone; and that the road was curvy and sloppy. He urged that court to allow his appeal, quash the conviction and set aside the sentence. Analysis and determination 16.This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32. 17.The court of appeal, in Kiilu & Another v Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.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.” 18.In Robert Onchiri Ogeto vs. Republic [2004] eKLR, the court of appeal held:“………….. Nevertheless, a Court of Appeal will not normally interfere with a finding of fact by the trial court, unless it is based on no evidence or on misapprehension of the evidence, or the trial Judge is shown demonstrably to have acted on wrong principles in reaching the decision – Chemagong Vs. Republic [1984] KLR 611; Kiarie Vs. Republic [1984] KLR 739.” 19.Drawing from the above, in determining the appeal this court will not interfere with a finding of fact by the trial court, unless it is based on no evidence or on misapprehension of the evidence, or the trial court is shown demonstrably to have acted on wrong principles in reaching the decision. 20.The issues for determination are;i.Whether the prosecution proved the offence of causing death by dangerous driving beyond reasonable doubtii.Whether the sentence was proper and lawful. Whether the prosecution proved the offence of causing death by dangerous driving beyond reasonable doubt 21.The appellant was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act. The said Act provides as follows:“Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.” 22.The law on causing death by dangerous driving was considered in Atito v Republic [1975] EA 281, where the Court of Appeal held that:“To justify a conviction for the offence of causing death by dangerous driving there must not only be a situation which, viewed objectively, was dangerous, but there must also be some fault on the part of the driver causing the situation.” 23.The mere fact that an accident has occurred alone is not enough to prove a charge of causing death by dangerous driving under Section 46 of the Traffic Act. It must be demonstrated that there was a dangerous situation and the appellant, being the driver at the material time, was guilty of a departure from the normal standard of driving which would be expected of a reasonably prudent driver. See Ngure vs. Republic [2003] E.A. 24.In the case of Paul Thiga Ngamenya v Republic [2018] eKLR, the court stated as follows concerning the standard of proof and the test to be applied;“ 41.The Court of Appeal went on to re-state the standard of proof and the test, as was laid down in Kitsao vs. Republic MSA H.C.Cr. A. 75 of 1975 (unreported) that to justify a conviction of the offence of causing death by dangerous driving there must not only be a situation which, viewed objectively, was dangerous, but there must also be some fault on the part of the driver causing that situation. The question therefore is not just whether or not there was a dangerous situation, but whether the appellant also played a part in causing the situation to be dangerous.” 25.Further, in Pyarali -vs- Republic [1971] EA 169, stated;“the test of whether a piece of driving is dangerous is objective and if the manoeuvre itself is dangerous the degree of negligence or care of the driver is irrelevant.” 26.“Fault” was defined in another Court of Appeal case Orweryo Missiani - vs- Republic [1979] KLR 285 as follows:“Fault” certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame ….. Fault involves a failure; a falling below the care or skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances of the case. A fault in that sense, even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient.” 27.From the foregoing, it is clear that for the prosecution to be deemed to have proved the offence of causing death by dangerous driving, it needed to demonstrate;i.that the appellant drove or managed the motor vehicle on a road recklessly or at a speed or in a manner which was dangerous to the public,ii.That one or more person died as a result of the accident. 28.In determining these matters, consideration must also be made of all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road. 29.As regards the death, the prosecution does not have to prove that the dangerous driving was the sole cause of death if it was the substantial cause of it. 30.PW 2 Alessia Luchini Matteo, testified that on 3 March 2025, she together with PW3 Matteo Gritti, PW4 Renata Fortarel, De Mozzi Karen (deceased) and Curcio Marco (deceased) were travelling to Diani Beach aboard Toyota Land cruiser KCV 883M driven by the appellant, Anwar Abdallah Swaleh. She was seated in the front side behind the driver whose seat was lower and she could clearly see him. 31.It was her evidence that the road was clear and there were no other vehicles on the road. She went on to say that the appellant was driving very fast compared to other vehicles, he had two phones which he was using throughout the journey, he drove while holding the phone in his hands and that she together with the other passengers, complained about his driving. She went on to testify that the appellant lost control, veered of the road in a zigzag manner and the vehicle rolled several times and overturned. 32.PW3 testified that the driver was speeding very fast, kept overtaking and other vehicles had to go off the road to give way. He confirmed that he had a phone on his hand at all times. He went on to say that they complained but he did not listen. That even though he was asleep at the time the accident occurred, he was awake most of the journey and could see how the appellant was driving. 33.PW4 stated that even though she could not see the dash board, the appellant was driving fast and they kept asking him to slow down but he ignored them. He went on to say that he did not see any vehicle behind or in front and there was no contact with any other vehicle. That the appellant went to the left side abruptly, stayed on the left and rolled. 34.PW2, PW3 and PW4 provided direct evidence that the appellant drove fast, recklessly and without due regard to other road users. He was either holding his phone on his hand or using it throughout the journey in total disregard of traffic rules. Use of mobile phones while driving is strictly prohibited by Rule 59A (1) of the Traffic (Minor Offences) Rules. The appellant ignored the pleas by the passengers to slow down. 35.The evidence showed that the appellant lost control of the vehicle, it swerved and moved in a zigzag manner before rolling severally. PW9 attended the scene, took measurements and legends of the scene of accident, and drew a sketch plan. He established that the vehicle veered off the road for 40 meters and landed 87meters off the road. PW 5, the motor vehicle inspector inspected the vehicle (KCV 883M) and established that it suffered extensive damage and it had no pre-accident defects leading to a conclusion that it (the vehicle) did not contribute to the accident. From the evidence, it is apparent that the vehicle was moving very fast and its velocity made it roll severally before resting 87 meters from the road. 36.The evidence on record from the prosecution witnesses, drawings and scene maps show that the road was clear, traffic was low and even though there was a bend, it was gentle. The manner in which the accident occurred leads to an inevitable conclusion that the appellant drove recklessly and without any due regard to the safely of the passengers on board and other road users. Additionally, PW 4 was very categorical that there was no vehicle that had hit or collided with their vehicle as alleged by the appellant. No other person in the vehicle witnesses the alleged collision and no evidence was provided to support the allegation. 37.The fact that two people, De Mozzi Karen and Curcio Marco died as a result of the accident while others suffered serious injuries adds credence to the above findings. The totality of the evidence leads to a conclusion that the appellant drove or managed the motor vehicle on a road recklessly, at a speed and in a manner which was dangerous to the public. The public in this case includes the passengers in the vehicle. 38.Evidence shows that De Mozzi Karen and Curcio Marco, who were passengers in the vehicle, died as a result of the accident. PW1 conducted a post mortem on the two where he established that De Mozzi Karen suffered traumatic asphyxia due to severe chest and lung injuries consistent with road traffic accident while Curcio Marco died from multiple organ injuries consistent with road traffic accident. He produced post mortem reports for the two deceased persons as evidence. 39.The court has considered the objection by the appellant that PW1 did not produce his certificate to prove his qualifications. It is not in dispute that PW1 did the post mortem on 4 March 2025 on the deceased at Pandya Hospital and prepared a report which was duly signed by him, stamped and dated. See Exhibit 1 and 2. No objection was raised by counsel on production of the exhibits by the witness. Pursuant to Article 159 (2) (d) of the Constitution that calls for administration of justice without regard to procedural technicalities, the court finds the objection by the appellant unsustainable. 40.The court is satisfied that based on evidence of PW1, PW2,PW3,PW4,PW6,PW7 and PW8, it has been established beyond reasonable doubt that two people died as a result of the accident. 41.The court therefore does not find any justification to interfere with the decision of the trial Court since it has not been demonstrated that it acted on wrong principles in reaching the decision or that the decision is based on no evidence or on misapprehension of the evidence. Whether the sentence was proper and lawful 42.Having found that the conviction is safe, the court will now turn to the second issue, that is, whether the sentence was proper and lawful. As stated earlier the appellant was sentenced to a fine of Ksh. 100,000.00 for each Count and in default to serve one (1) year imprisonment for each Count. 43.The principles guiding interference with sentencing by the appellate court were laid down by the Court of Appeal in Bernard Kimani Gacheru vs Republic [2002] eKLR as follows:“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 states is shown to exist.” 44.Section 49 (1) of the Traffic Act provides that;“Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable— (a) for a first offence, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings; (b) for a second or subsequent offence, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings.” 45.The appellant was a first offender and pursuant to Section 49 above, he was sentenced to pay a fine of Ksh. 100,000 or in default to serve a 1-year prison term for each of the 2 counts of causing death by dangerous driving. 46.It is common ground that the two counts resulted from the same accident. The law on the offence of causing death by dangerous driving recognizes the offence as the dangerous driving not killing people by dangerous driving, as would make material the number of people killed. 47.In Francis Karanja Mwangi v Republic [2019] eKLR the court held that:“I respectfully accept the offence is the causing death by dangerous driving and it consequently does not matter how many deaths occur. See Court of Appeal decision in Atito v. R (1975) EA 278 cited in Charles Muriuki Wahome v. R. Nairobi HCCRA No. 140 of 2015 (2017) eKLR (G.W. Ngenye Macharia, J.). The laying of 11 charges of causing death by dangerous driving in the case was legally improper, on the principle of law that “no man should punished twice for the same offence” The charge ought to have been one, only of causing death (of the named persons) by dangerous driving.” 48.Further in Charles Muriuki Wahome v Republic [2017] KEHC 9013 (KLR), the court held as follows as regards multiple counts/charges in the offence of causing death by dangerous driving:“Before I delve into the main issues for determination it is important that I point out that in a charge of causing death by dangerous driving, no matter how many deaths are occasioned, if they occur in the same accident, the accused ought to be charged with one count of causing death by dangerous driving. In the single count the deceased passengers or persons should then be named. The framing of more than one count where the deaths occur in the same accident implies that there existed several accidents in which the deaths were occasioned. In so doing, the ultimate result is that it impacts on the sentence imposed on the accused; which shall depend on the number of counts in which the accused is convicted. This is highly prejudicial to the accused and occasions him injustice especially where the trial court passes consecutive sentences. It follows that the accused is punished twice for the same offence; of dangerous driving. See Atito v. Republic [1975] EA 278, in which the then East African Court of Appeal held:“No man is to be punished twice for the same offence, the offence in this case being dangerous driving and causing death. The number of deaths caused is immaterial.” 49.Having caused a single accident, the appellant should have been sentenced for one Count and not two Counts of causing death. The death occurred from the single accident and it was erroneous for the trial court to award multiple sentences in respect of each death. The error calls for this court's interference. Final Disposition 50.Accordingly, for the reasons set out above, the court makes the following orders:i.The appeal against conviction lacks merit and it is dismissed in its entirety.ii.The sentence of fine of Ksh. 100,000.00 for Count 1 is upheld.iii.The sentence of fine of Ksh. 100,000.00 for Count 2 is set aside. 51.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 15TH DAYS OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE