https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9103

Maina v Republic (Criminal Appeal E012 of 2026) [2026] KEHC 9103 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9103 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E012 of 2026 DR Kavedza, J June 25, 2026 Between John Hillary Maina Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 28th January 2026 at Kibera Chief Magistrate’s Court Traffic Case no. E856 of 2023 Republic vs John Hillary Maina) Judgment 1.The appellant was charged and after full trial convicted by the Subordinate Court for the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act Cap 403 Laws of Kenya. The particulars were that on 14th March 2020 at about 6.40am along Ngong Road at Southern Bypass interchange within Nairobi County, being the driver of motor vehicle reg. no. KBW 761X make Volkswagen Passat did drive the said motor vehicle on a public road dangerously and at a speed by driving on the wrong side of the road while joining Ngong Road from Southern bypass and collided head on with the oncoming motor vehicle registration number KCD 635L Mitsubishi Canter causing death to a passenger in motor vehicle KBW 761X namely Catherine Wanjira who died on the spot. 2.He was sentenced to pay a fine of Kshs. 100,000 in default to serve one year imprisonment. Being aggrieved, the appellant filed an appeal challenging his conviction and sentence. In the petition of the appeal, he challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 3.This being the first appellate court, we are guided by the ruling in Okeno v. R [1972] EA 32. In this case, the court opined that a court of first appeal ought to re-examine all the evidence afresh and in an exhaustive manner, to come up with its own conclusions without overlooking the conclusions of the trial court, bearing in mind that it never saw the witnesses testify. 4.The prosecution called five (5) witnesses in support of its case. PW1, Daniel Njore Mugure, a caretaker at Garden Estate where several business premises, including three pubs, were located, testified that on 13th March 2020 he reported to work at about 6.00 p.m. He met the deceased, one of the proprietors, who requested him to clean the washrooms. The deceased was in the company of customers and was consuming alcohol. Upon closure of her establishment, she left in motor vehicle registration number KBW 761X Volkswagen Passat in the company of the appellant and another friend. PW1 stated that the deceased was heavily intoxicated and that the appellant drove the vehicle as they departed. 5.PW1 further testified that when he reported to work the following evening, he learnt that the deceased had been involved in a road traffic accident and had died. During cross-examination, he maintained that the appellant was the driver when they left Thika Road. 6.PW2, Francis Gichuki, the deceased’s brother, testified that he received information that the deceased had been rushed to Kenyatta National Hospital following a road traffic accident. Shortly thereafter, he was advised to proceed to the City Mortuary, where he identified her body. He was present when a post-mortem examination was conducted on 16th March 2020. 7.PW3, Police Constable Wilfred Simiyu, a Traffic Police Officer attached to Karen Police Station, testified that on 14th March 2020 at about 6.30 a.m., he received a report of a road traffic accident along Ngong Road near the Karen Interchange underpass and proceeded to the scene. 8.Upon arrival, he found motor vehicles registration numbers KCD 635L Mitsubishi Canter and KBW 761X Volkswagen Passat involved in a collision. Three occupants of the Passat were at the scene, two lying on the ground and one seated. He arranged for an ambulance and the injured persons were taken to hospital. He stated that the person who had been seated later stood up and was identified as the driver. 9.PW3 testified that investigations revealed that the Mitsubishi Canter was travelling from the Karen direction towards Dagoretti Corner, while the Volkswagen Passat was travelling from the opposite direction on the wrong side of the road. He further stated that the occupants of the Passat had been consuming alcohol and appeared intoxicated. One of the passengers later succumbed to the injuries sustained in the accident. 10.Upon completion of investigations, PW3 forwarded the file to the Office of the Director of Public Prosecutions. It was recommended that the matter proceed by way of a public inquest. Following the inquest, the appellant was found culpable and it was recommended that he be charged. PW3 produced the sketch plan depicting the scene of the accident. 11.During cross-examination, PW3 stated that the Occurrence Book recorded Samuel Mbatia as the driver of the Volkswagen Passat. He further stated that when he arrived at the scene he was unable to identify the driver, as all the occupants appeared intoxicated. He also stated that the appellant sustained only a cut on the face. 12.PW4, Dr Joseph Ndungu, a Pathologist, conducted a post-mortem examination on the deceased on 16th March 2020 at the City Mortuary. He formed the opinion that the cause of death was multiple injuries resulting from blunt force trauma consistent with a road traffic accident. He produced the post-mortem report as an exhibit. 13.PW5, Ian Mugo Njenga, a Motor Vehicle Inspector, testified that he inspected both vehicles involved in the accident. He identified the damage sustained and concluded that neither vehicle had any pre-accident mechanical defects. He produced the inspection reports as exhibits. During cross-examination, he stated that the point of impact on the Volkswagen Passat was at the front section of the vehicle. 14.At the close of the prosecution case, the appellant was placed on his defence. He elected to give sworn testimony and called one witness. 15.The appellant testified that he had spent the night with the deceased and one Samuel Mbatia consuming alcohol at Thika Road. He stated that he initially drove the Volkswagen Passat but, upon reaching Pangani, handed over the vehicle to Samuel Mbatia because he was tired and sleepy. He then fell asleep and only regained consciousness after the accident had occurred. 16.The appellant further stated that he sustained fractures and underwent surgery at Nairobi West Hospital. However, no medical documents were produced in evidence, save for a discharge summary marked for identification. During cross-examination, the appellant maintained that he was seated in the front passenger seat and was not the driver at the time of the accident. 17.DW2, Rose Njuguna, testified that while travelling from Kikuyu towards Karen with two friends, she came upon the accident scene and stopped to assist. She maintained that the appellant was not the driver of the Volkswagen Passat. She played a video recording taken at the scene. However, the recording did not clearly identify the person alleged to have been seated in the co-driver’s seat. 18.The appeal was canvassed by way of written submissions, which have been duly considered. 19.Section 46 of the Traffic Act, provides as follows:“ 46.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 be 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. 20.To sustain a conviction under the section, the prosecution was required to prove beyond reasonable doubt that the appellant was the driver of the motor vehicle at the material time and that his manner of driving was dangerous and caused the fatal accident. 21.PW1 testified that when the deceased left the club, the appellant was driving the vehicle. However, the accident occurred at approximately 6.30 a.m. on the following day. PW1 did not state the exact time the deceased and her companions left the premises. The evidence nevertheless shows that a considerable period, estimated at not less than six hours, elapsed between their departure and the occurrence of the accident. In those circumstances, PW1's evidence could only establish who was driving when the occupants left the club and not who was driving at the time of the collision. 22.The evidence regarding the identity of the driver at the scene was inconsistent. PW3, the investigating officer, testified that upon arrival at the scene he found the occupants of the vehicle injured and intoxicated. During cross-examination, he expressly admitted that the Occurrence Book recorded Samuel Mbatia as the driver of the Volkswagen Passat. He further stated that when he arrived at the scene he was unable identify who the driver was, as all the occupants appeared intoxicated. 23.The appellant consistently maintained that although he initially drove the vehicle, he later handed over control to Samuel Mbatia after becoming tired and sleepy. This account was supported by DW2, who testified that the appellant was not the driver. While her evidence was not conclusive as to who was driving, it lent support to the appellant's version that he was not behind the wheel at the material time. 24.Significantly, no evidence was called from Samuel Mbatia, the person recorded in the Occurrence Book as the driver. The driver of the other motor vehicle (KCD 635L) involved in the accident was also not called as a witness. Equally, no explanation was offered by the prosecution for the failure to call any of them as witnesses. Their evidence would have been material in resolving the central question of who was driving the vehicle when the accident occurred. 25.Although PW3 subsequently stated that the appellant was the driver, that assertion was not supported by any independent evidence. No witness identified the appellant as the driver at the time of the collision. Neither was there forensic, documentary, or circumstantial evidence conclusively placing him behind the wheel when the accident occurred. 26.Upon re-evaluation of the evidence on record, I find that the identity of the driver of motor vehicle registration number KBW 761X at the time of the accident was not proved beyond reasonable doubt. 27.PW3 further testified that the decision to charge the appellant followed the conclusion of a public inquest in which the appellant was allegedly found culpable. However, the proceedings, findings, and verdict of the inquest were not produced before the trial court. Consequently, the court was unable to ascertain the basis upon which the recommendation to charge the appellant was made. The alleged findings of the inquest therefore remained unsubstantiated and could not serve as corroboration of the prosecution's case. 28.In criminal proceedings, the burden rests entirely upon the prosecution to prove every element of the offence beyond reasonable doubt. Where doubt exists as to the identity of the offender, such doubt must be resolved in favour of the accused person. 29.Having considered the totality of the evidence, I find that the prosecution failed to prove beyond reasonable doubt that the appellant was the driver of motor vehicle registration number KBW 761X at the time of the accident. The contradictory evidence regarding the identity of the driver, the Occurrence Book entry naming Samuel Mbatia as the driver, the failure to call Samuel Mbatia as a witness, the driver of the other motor vehicle (KCD 635L) involved in the accident and the absence of the inquest findings created a reasonable doubt which was not displaced by the prosecution. 30.In the result, the conviction was unsafe and cannot stand. The appeal is accordingly allowed. The conviction entered by the trial court is hereby quashed and the sentence set aside. The appellant shall be set at liberty forthwith unless otherwise lawfully held. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF JUNE 2026______________D. KAVEDZAJUDGEIn the presence of:Appellant AbsentRespondent AbsentKarimi Court Assistant.