[2014] KEHC 8165 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 262 (B) OF 2011

(Appeal from sentence and conviction in Traffic Case No. 8577 of 2008 in the Chief Magistrate’s Court at Nairobi, K. A. Bidali (CM) delivered on 12th October 2011)

JAMES NJUGUNA KIHUNA ……..…………………………..APPELLANT

VERSUS

REPUBLIC ……….………………………………………….RESPONDENT

JUDGMENT

The Appellant was charged and convicted for the offence of causing death by dangerous driving contrary to Section 46of the Traffic Act, Cap. 403 LawsofKenya, and failing to stop after an accident contrary to Section 73(1) as read with Section 75 of the Traffic Act. He was sentenced to serve 6 months imprisonment in count 1 and 1 month in count 2 respectively. The sentences were ordered to run concurrently.

In addition his driving licence was cancelled for 3 years after completion of the sentence.

The particulars case was that on the 12th day of October 2007, at about 1. 00 pm along Kiambu road within Nairobi area, being the driver of motor vehicle registration number KAW 543E Toyota Prado, drove the said vehicle in a dangerous manner and caused the death of Ambrose Onyango who died on the spot. The appellant failed to stop after the accident.

Aggrieved by the decision of the court the appellant filed an appeal against both the conviction and sentence. The grounds of appeal mainly attacked the weight of the evidence upon which he was convicted.

In his written submissions Mr. Kivuva, learned counsel for the appellant contended that there was no evidence tendered to show that the appellant drove the motor vehicle in a manner that was dangerous to the public and without due care and attention, or that the accident was as a result of some fault on his part. He argued that the position of the deceased, body and the bicycle were not indicated, that the bicycle was not produced and that no skid marks were shown to exist at the scene.

Mr. Kivuva also urged that the last time the deceased was seen alive was on 12th October 2007 at his home and that there were no witnesses to say that they saw him alive prior to the accident. He submitted that his death could have been as a result of a fall from his bicycle since there was no evidence of a collision between the deceased and the appellant’s motor vehicle. Mr. Kivuva contended that it was erroneous for the court to presume that the deceased died as a result of being hit by the appellant’s motor vehicle and further that the appellant was driving at high speed at the time of the accident. He produced a list of nine authorities which spoke to the various aspects of this case.

Miss Maina, learned State Counsel opposed the appeal on behalf of the Respondent. She submitted that there was sufficient evidence on record to support both conviction and sentence. That it was the appellant who caused the death of the deceased since it was not possible for him to have dropped his bumper without realizing it even if he was driving on a rough road as he said. Further that the appellant did not report the accident at Muthaiga Police Station or that his bumper was missing. That in the OB he reported that he had ran over someone who had been knocked down by a vehicle. Miss Maina agreed with the trial magistrate’s findings that the appellant was the one who ran over the deceased.

The prosecution’s case in a nutshell was that the deceased was cycling along Kiambu road when he was knocked down by a motor vehicle. Police officers from Muthaiga Police Station received the report and visited the scene of the accident where they found the body of the deceased and a bumper belonging to car reg. No. KAW 543 E Land Cruiser Prado. A search at the Registrar of motor vehicles revealed that the motor vehicle belonged to the appellant. The appellant was located and his motor vehicle inspected. It was found to have no front bumper. The appellant was arrested and charged.

In his defence, the appellant stated that on 12th October 2007 at 1. 00 p.m. he was travelling from Nairobi to Kiambu driving motor vehicle KAW 543E along the new Kiambu road at a speed of 60 Kph, when he came upon two stationery matatus which had blocked the road. He stopped and decided to deviate to the left where there was space. Shortly thereafter he saw a bicycle and a body lying on the road in front of the matatus. There were people arguing over who had hit the person. He drove by on the rough side of the road which caused his vehicle to veer off the road completely, and in the process the bumper which was a bit loose must have fallen off the car. From his side mirror he saw someone trying to stop him but he thought they wanted a lift. He denied having hit anyone.

The undisputed facts of this case are that the deceased was hit by a vehicle along Kiambu road and died on the spot. It was also not disputed that the appellant drove along the said road at the material time, and that the bumper produced as exhibit 1 in court belonged to appellant’s car. Further that he made a report of the incident at Muthangari Police Station.

The issues for determination therefore are first, whether the motor vehicle registration No. KAW 543 E driven by the appellant, was the one which hit and fatally injured the deceased and second, whether the accident was caused by the appellant’s manner of driving.

The only connection between the appellant and the fatal accident is exhibit No.1, the bumper (bull bar) belonging to motor vehicle Registration No. KAW 543 E Land Cruiser Prado. This was confirmed by PW5, CIP Sunguti who conducted a search at the Registrar of motor vehicles registry, and established that the motor vehicle was owned by the appellant. The appellant admitted this fact in his defence. This bumper connected the appellant to the accident because it was found at the scene of the accident immediately after the accident occurred.

PW1, IP Basita Omukolongolo who was the OCS Muthaiga police station at the time in question received a call at 13. 10 hours on 12th October 2007 and was informed of a road traffic accident next to Muthaiga Golf Club along Kiambu road. He rushed to the scene and found the victim of the accident already dead. According to IP Basita, the body of the deceased was beside the road and next to it was a car bumper with the markings KAW 543 E, but the car itself was not at the scene.

In cross-examination IP Basita stated that the information he got was that the accident had just occurred. He also told the court that the scene was near Muthaiga police station. It was he who called his colleagues on traffic standby duties at Pangani Police Station.

PW2, P.C. Omari was on Traffic standby duties when he was called to attend to a scene of a fatal road accident on 12th January 2007. At the scene he found the body of the deceased on the left side of the road facing Kiambu. There was a grill (bumper) and bicycle all lined up, 1 metre apart. It was his testimony that it took him just five minutes to reach the scene from Pangani Police Station and that PW1, the OCS Muthaiga Police Station was already at the scene when he arrived.

From the evidence of the two witnesses it is therefore evident that the police acted immediately and moved to the scene with speed, arriving there within a few minutes of the accident.There was however no eyewitness who was willing to testify or come forward to shed light on what transpired and there were no skid marks on the road to give an indication of the manner in which the appellant was driving.

The evidence as to the cause of the accident is therefore circumstantial, and must be subjected to the litmus paper test to establish whether it was sufficient to sustain a conviction. This being the court of the first appeal I scrutinized the evidence on record afresh to see whether it passed this test. In assessing the evidence I did not lose sight of the fact that this is a quasi-criminal trial and that the onus of proof still rested squarely with the prosecution and not the defence. The appellant having elected to testify in his defence, his testimony must be weighed in the context of the rest of the evidence on record.

The Court will only rely on circumstantial evidence to support a conviction of an accused person if the evidence points irresistibly to the accused person’s guilt to the exclusion of everybody else, and if it is in explainable on any other hypothesis other than that of the accused person’s guilt. Before drawing the inference of the accused person’s guilt from circumstantial evidence, the court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference of the accused person’s guilt. See R.V Kipkering arap Koske & Another (1949) 16 EACA 135, Simoni Musoke V R (1958) EA 715.

In the appellant’s defence he denied knocking down the deceased and stated that it was one of the two matatus which he found at the scene which hit him. It was his evidence that, in fact by the time he got to the scene the matatu drivers were arguing over who had hit the deceased.

The appellant told the court that at the scene he stopped and deviated off the road completely passing on to the far left to avoid the two matatus. That was when he came upon the bicycle and the body of a person lying in the road in front of the matatu. He explained that his bumper which was loose fell off the car as he drove on the rough side of the road.

If that were so it is difficult to fathom how his bumper came to be in the road aligned with the body and bicycle of the deceased as if they were all travelling in a straight line before they came to rest. From the evidence of PW6, PC Woman Carolyne of Muthangari Police Station, the appellant reported that he ran over a body that lay on the pavement as he tried to avoid two matatus in the road.

It is instructive to note that his report to Muthangari Police was made some six hours after the fact, and the appellant had not gone to make a report at Muthaiga Police Station as instructed by Muthangari Police, several days later when PW5 caught up with him. If he was not involved in the accident at all as he states it beats logic why he deemed it necessary to make a report at Muthangari Police who were not concerned at all, yet he did not report to the Muthaiga Police who are a few metres from the accident scene.

From a reconstruction of the scene from the appellant’s own report and the testimonies of all the witnesses on record it is evident that he veered left to overtake two matatus that were blocking the road and he ran over a person. It is my considered view that at that point the person in question was alive and it is the collision with the appellant’s car that cause his death. That would explain why the appellant fled the scene in panic without stopping to collect his bumper. It is unlikely that the bumper which PW2, PC Omari described as a grill would fall off the car without the driver becoming aware of it. From the evidence of PW1 who was the first to arrive at the scene the bicycle was extensively damaged which negates counsel’s argument that the deceased may have fallen off the bicycle by himself.

The evidence of DW2 was not of much help to the appellant’s case. First she said that the two matatus in the road were facing each other while the appellant said they were parallel to each other. Then she said they had blocked the road but she was able to see a body lying in front of the matatu that was headed towards Kiambu. If she was going to Githunguri the matatu she was in must have been going in the same direction both the appellant’s motor vehicle and the matatu heading towards Kiambu. It is difficult to see how she could then see a body lying in the road in front of the said matatu.

I am in agreement with the learned trial magistrate that if the appellant was driving by slowly as he stated he would have avoided the accident. The absence of the skid marks shows that he did not attempt to stop or swerve to avoid the deceased.

That the deceased was knocked down on the left side of the road on the pavement as stated by the appellant himself. The appellant therefore decided to overtake the matatus from the left side, endangering the lives of other road users such as pedestrians and cyclists. This leads me to draw the inference that the appellant drove dangerously and that his reckless manner of driving was the cause of the accident that claimed the deceased’s life.

Having carefully assessed the evidence on record I find that the learned trial magistrate was in order to find him guilty on both counts and that the sentences were commensurate with the offences.

The appeal is therefore lacking in merit and is dismissed accordingly.

SIGNED DATED and DELIVERED in open court this 9th day of July 2014.

L. A. ACHODE

JUDGE