[2005] KEHC 2806 (KLR)
The conviction of the appellant was based solely on a confession that he later retracted. The trial court admitted the confession after a trial within a trial but failed to adequately weigh it against the totality of evidence, particularly the testimony of PW2, who supported the appellant's defence that he was not...
Source-derived case information.
- Citation
- [2005] KEHC 2806 (KLR)
- Parties
- Appellant: Geoffrey Najoli Arumana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 73 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Legal Topics
- Dangerous Driving, Causing Death by Dangerous Driving, Confession Evidence, Retracted Confession, Driving Without Licence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Najoli Arumana
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was the driver of the lorry at the time of the accident causing death by dangerous driving.
- 2 Whether the confession attributed to the appellant was properly admitted and sufficient to sustain a conviction.
- 3 Whether the trial court properly evaluated the defence and corroborating evidence.
Ratio Decidendi
The conviction of the appellant was based solely on a confession that he later retracted. The trial court admitted the confession after a trial within a trial but failed to adequately weigh it against the totality of evidence, particularly the testimony of PW2, who supported the appellant's defence that he was not the driver. The appellate court found that the only nexus between the appellant and the offence was the confession, and in the absence of corroborative evidence, the conviction could not stand. The State conceded the appeal, and the court held that the appellant's defence was improperly dismissed. Consequently, the conviction was quashed, and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO. 73 OF 2003
FROM ORIGINAL CONVICTION AND SENTENCE IN TRAFFIC CASE NO. 3463
OF 2002 OF THE CHIEF MAGISTRATE’S COURT AT THIKA
GEOFFREY NAGOLI ARUMAN……………..………………………..APPELLANT
VERSUS
REPUBLIC………………………………………..…………………..RESPONDENT
JUDGMENT
The appellant, GEOFFREY NAJOLI ARUMANA, was convicted for two counts of CAUSING DEATH BY DANGEROUS DRIVING,and one count of DRIVING A MOTOR VEHICLE ON A PUBLIC ROAD WITHOUT A DRIVING LICENCE. For the first two counts, the appellant was jailed for five years, on each count, although the court then directed that the sentences would run concurrently. Whilst on the 3rd count, the appellant was fined Kshs 20,000/=, in default of which he was to be imprisoned for 3 months.
Furthermore, the learned trial magistrate disqualified the appellant from holding or obtaining a driving licence for three years after his release.
The basic facts of the case were that the appellant drove a lorry so dangerously that it lost control, at Ithanga, along the Thika- Ithanga Road, within Thika district. When the vehicle lost control, it left the road and ran into four pedestrians, killing two of them.
The manner in which the pedestrians lost their lives is not in dispute. In other words, even the appellant did concede that the deceased were killed by the lorry, which had lost control. But in his defence, the appellant says that he was not the person who was driving the lorry at the time of the accident.
The appellant insisted that his role in the lorry was only that of the turnboy. He testified that on the material day, the lorry delivered some goods to Ithanga. He helped the regular turnboy to offload the goods. Thereafter, the lorry was loaded with bananas at the market place, and that he was involved in the said loading.
According to the appellant, the lorry was at all times driven by the driver, other than himself. But the prosecution insists that the appellant did confess to the fact that he was the person driving the vehicle at the time of the accident in issue. That confession was admitted in evidence after the learned trial magistrate conduct a trial within a trial. The need for the said trial within a trial arose from the fact that the appellant had retracted his alleged confession.
It is significant that the only nexus between the appellant and the accident is his said confession. If that confession were not admitted in evidence, there would have been nothing else to connect the appellant to the offence. For that reason, it was incumbent upon the learned trial magistrate to handle the confession with the utmost care. By utmost care, I mean that the statement should have been treated with caution, and then weighed against all the available evidence, so as to enable the learned trial magistrate ascertain whether or not the confession was voluntarily given, or if the appellant had been compelled to sign it.
When re-evaluating the evidence on record, as a first appellate court is obliged to do, I find that in principal, the decision by the trial court to admit the confession in evidence, cannot in itself be faulted. I say so because he followed the correct procedure, by conducting a trial within a trial, after the appellant had retracted the confession. But having admitted the confession, the trial court seems to have accepted it at face value, when convicting the appellant. I say so because it appears to me that once the trial court had noted the confession to the effect that the appellant had been driving the vehicle at the time of the accident, the learned trial Magistrate did not take note of the fact that PW2’s evidence actually corroborated the defence of the appellant. PW2, Phillip Naboth Mubasi, was a turnboy on the lorry. He testified that the person who was driving the lorry at the time of the accident was “the Driver, Suleiman”
Accordingly, I hold that the appellant’s defence ought not to have been dismissed as PW2’s testimony gave it support. In the circumstances, the learned State Counsel, Mrs. Toigat, was quite right to have conceded the appeal.
I therefore now quash the conviction, set aside the sentence, and order that the appellant be set at liberty unless he is otherwise lawfully held. In the event that the appellant did pay any fine, the same should be paid back to him.
It is so ordered
Dated at Nairobi this 16th day of May, 2005
FRED A. OCHIENG
JUDGE
Delivered in the presence of:
For the State
Appellant in person
Mr. Odero Court Clerk