[2008] KEHC 2610 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Criminal Appeal 170 of 2006

JOSEPH MWANZI MUTUTA............................................. APPELLANT

AND

REPUBLIC....................................................................... RESPONDENT

(Being an appeal from original conviction and sentence of the Senior Resident Magistrate (SM Mwendwa) in Machakos Chief Magistrate’s Traffic Case No.21 of 2004 dated 1. 12. 2006)

JUDGMENT OF THE COURT

The Charge and Plea

1. On 2. 09. 2004, the appellant herein Joseph Mwanzi Mututa was arraigned before the Senior Resident Magistrate’s Court at Machakos charged in count one with causing death by dangerous driving contrary to section 46 of the Traffic Act. It was alleged that he caused the death of Stephen Mwangangi Mutiso through dangerous driving on 6. 08. 2004. In the 2nd count, he was charged with driving a defective motor vehicle contrary to section 4 (1) of the Insurance Act Cap. 405 Laws of Kenya and that he committed the said offence on 6. 08. 2004 at about 8. 00p.m. along the Machakos - Wote road when he operated motor vehicle Reg. No. KWQ 418 along the said road without an insurance cover.

2. In the alternative to the 2nd count the appellant was charged with failing to display an Insurance Certificate contrary to section 4 (2) of the Traffic Act Cap.403 Laws of Kenya. It was alleged he committed the offence on 6. 08. 2004 along the Machakos-Wote road. In the 3rd count the appellant was charged with failing to stop after an accident contrary to section 4 (2) of the Traffic Act, Cap.403 Laws of Kenya. It was alleged he committed the said offence on the 6. 08. 2004 at about 8. 00 p.m. along the Machakos–Wote road. The appellant pleaded not guilty to the 1st count but pleaded guilty on counts 2 and 3. He was convicted and sentenced to a fine of Kshs.5000/= on each of the two counts in default 1 month imprisonment. The case proceeded to hearing on the 1st count only.

The Prosecution’s Case

3. The prosecution called 5 witnesses. P.W.1 was Jane Wanza Stephen Mwangangi. She stated that at about 7. 00 p.m. on 6. 08. 2004, while she was in her house she heard people screaming. That when she went out to see what was happening, she discovered to her horror, that her husband Stephen Mwangangi Mutiso had been knocked down by a car. She said that her husband who was a nursery school teacher at Kaloleni had left home at about 7. 00 a.m. on that day, and that when she saw him, he was lying dead off the road with a broken left foot and blood oozing from the head.

She said that with the help of one Dennis Ndeto (P.W.4) an insurance sticker was found at the scene and that the same sticker together with the broken glasses were handed over to the police. P.W.1 denied a suggestion by defence counsel that the deceased was a drunkard.

4. P.W.2 was Peter Kimuyu Mutheke from Kaloleni in Kiima Kimwe Location. He stated that on 13. 08. 2004 at about 11. 00 a.m. he identified the body of Stephen Mwangangi Mutiso (deceased) to the doctor for post mortem examination, and that from what the doctor told them, the deceased died due to head haemorrhage. P.W.2 also testified that the deceased operated his own nursery school and further that though the deceased used to drink sometime in the past, he had long stopped doing so by the time of the accident.

5. P.W.3 was number 62489 CPL Nyanzua of Machakos Traffic Duties Section. He stated that on 6. 08. 2004, while he was at the station, the report of the accident in which the deceased died was made to the station. That he together with PC Ngera and PC Tonkei went to scene of accident from which they removed the deceased’s body to Machakos General Hospital Mortuary. P.W.3 stated further that on arrival at the scene, the deceased’s body was found lying on the left side of the road; that he took measurements at the scene took a fair sketch and the rough sketch plans of the scene which he produced as P Exhibits 1, 2 and 3. P.W.3 also stated that the appellant later on went to the station and that is when he was arrested and subsequently charged with the three offences.

6. On cross examination, P.W.3 stated that the body of the deceased was lying about 0. 8 metres from the edge of the road on the left hand side as over faces Wote.

7. P.W. 4 was Dennis Ndeto John who said that he was employed by one Nick Mweu as a turnboy of lorry Reg. No. KAQ 179 P. He stated that on 6. 08. 04 at about 8. 00 p.m. he was at Kahawa Shopping Centre near Mwania River in the Kaloleni area along the Machakos – Wote road towards Wote. He said a saloon car KWQ 418 passed him and after about 50 metres ahead, the vehicle started swerving from side to side and immediately he (W.P.4) heard a bang, but that the driver of the said vehicle never stopped.

8. P.W.4 said he immediately ran to the scene and found that someone had been knocked down with the body lying about 1 metre away from the edge of the road on the left side of the road towards Wote. He also said that after neighbours came to the scene, he realized that the person who had been knocked down and killed was Stephen Mwangangi Mutiso (deceased). He also said he collected car stickers from the scene and later handed them to the police. In his further testimony, P.W.4 stated that at the time of the accident, the vehicle was going down a steep slope and that though the vehicle’s lights were on, the vehicle started to sway from side to side after it passed him. He also stated that before the impact the vehicle swayed once from left to right and that at the time there was no-one on the road. P.W.4 also testified that there were both a footpath and a gulley on the right side of the road at the point where the accident took place but that the deceased was knocked down on the left side of the road just on the edge of the tarmac.

9. P.W.5 was Doctor David Kaburu, MBCH, University of Nairobi and by then working at Machakos General Hospital on general duties. He said he performed a post-mortem examination on the body of Stephen Mutiso who was aged about 65 years and 5’11” tall. He said the post-mortem was done on 13. 08. 04 during which he found that there was blood oozing from the mouth, both ears and nostrils and that internally, the deceased had a huge sub-scapular haemotoma on the right temporal region. That the deceased also had a crack fracture of the same region with internal intra cellebral haemorrhage and subduned haematoma. In the doctor’s opinion, the deceased died due to head injury due to a road traffic accident. The doctor also explained that according to the findings he made, the injuries suffered by the deceased were caused by excessive blunt force such as a crush to the head through a road accident.

The Appellant’s Case

10. The appellant gave sworn testimony and told the court that on the 6. 08. 04, he left his place of work in Nairobi driving motor vehicle KWQ 418 and got to Machakos at about 8. 00 p.m; that he continued driving along the Machakos – Wote road and that when he got near the bridge of Mwania river something suddenly crossed from the right side of the road to the left. He also stated that he could not say exactly what the object was, but that his effort to brake came too late. There was then a bang on the windscreen which was shattered. He said that because the place was unsafe, he decided to drive on and went to report the matter to Wote Police station. The appellant also stated that though he was driving at between 60 -70 Km per hour, he was unable to avoid the accident. Interestingly the prosecutor, one Inspector of Police, Kiarie, did not put any questions to the appellant.

The Judgment of the Lower Court

11. In his judgment, the learned trial Magistrate found that the prosecution had proved its case beyond any reasonable doubt; drew the inference that, from the documentary evidence of the sketch maps produced by P.W.3, the appellant knocked the deceased as he (appellant) negotiated one of the two corners at the scene of the accident. The learned trial Magistrate heavily relied on the testimony of P.W.4 who he said explained clearly how the accident occurred. The learned trial Magistrate also inferred that as the appellant swerved fro m the right to avoid a gulley, he hit the deceased in the process. It was the view of the learned trial Magistrate that if the appellant had slowed down or taken other steps so as to avoid the accident, he would not have hit the deceased. On conviction the appellant was fined Kshs.50,000/= in default 12 (twelve) months imprisonment.

The Grounds of Appeal

12. The Petition of Appeal was filed on 15. 12. 06 and set out 12 grounds of appeal. The appellant has complained that the learned trial Magistrate erred when he convicted the appellant on insufficient evidence and for relying on speculation of his own making. The appellant also complained that the learned trial Magistrate also erred in failing to appreciate that there was a footpath at the scene of the accident and that no basis was laid by the learned trial Magistrate for relying so heavily on the evidence of P.W.4, the supposed eye witness.

13. In his further grounds, the appellant complained that the learned trial Magistrate erred when he failed to ask the appellant to plead afresh to the amended charge sheet contrary to section 214 of the Criminal Procedure Code (CPC) which provides that upon amendment of a charge, the court shall call upon an accused person to plead to the altered charge and further that where a charge is so amended, an accused person has the right to recall and re-examine witnesses who testified before the amendment. The appellant has also complained that the conclusion reached by the learned trial Magistrate that the appellant was guilty was influenced by the conviction on own plea of guilty on the 2nd and 3rd counts and that if the learned trial Magistrate had taken into account the appellant’s own sworn statement, he (Magistrate) would have reached a different conclusion. The appellant has also accused the learned trial Magistrate of being partisan by taking over the cross-examination of P.W.5.

Submissions at the hearing

14. Mr. Ndolo who appeared for the appellant abandoned all the grounds of appeal save grounds 1, 7 and 8. He submitted that the evidence before the lower court was not sufficient to found a conviction and particularly that there was no eye-witness account of how the accident occurred. For example, that there was no evidence to show on which side of the road the deceased was walking along the Machakos – Wote road just before the accident. Mr. Ndolo submitted that the evidence of the self-styled eye witness, Dennis Ndeto John (P.W.4), who said that he observed the appellant’s car sway from the right to the left at a distance of 50 metres away was not sufficient. Further Mr. Ndolo submitted that the evidence given by P.W.3 as to where the deceased’s body was found lying after the accident clearly showed that the accident occurred on the appellant’s side of the road. He also said that no evidence of reckless driving was adduced by the prosecution.

15. Mr. Ndolo also submitted in support of ground 7 of appeal that the learned trial Magistrate caused a miscarriage of justice when he failed to call upon the appellant to plead afresh after the charge sheet was amended. While section 214 (1) of the Criminal Procedure Code provides for amendment and alteration of the charge sheet, the proviso thereto makes it mandatory for the court to call upon an accused person:-

(i) to plead to the altered charge

(ii) to recall any witnesses who may have testified before the amendment or alteration.

16. In the instant case, the prosecution sought and was allowed to amend the charge sheet after the first three prosecution witnesses had testified. The amendment involved substitution of the name of the deceased person. There is nothing on record to show that the trial court complied with section 214 (1) of the Criminal Procedure Code; because immediately after the court noted the amendment the next witness P.W.4 was put into the witness box. Mr. Ndolo relied on the case of Yongo -vs- Republic (Court of Appeal at Nairobi [1983] KLR 319 in which their Lordships dealt with the procedural requirements upon amendment by order of the court and the rights of the accused person upon amendment of the charge. Their Lordships noted that it is a mandatory requirement that upon amendment, the court not only complies with the conditions of the proviso to section 214 (1) of the Criminal Procedure Code, but that it shall record that it has so complied. As I have pointed out earlier, the trial court did not record that it had complied with the provisions of the law under which the amendment was sought and obtained nor did the court call upon the appellant to plead to the amended charge, nor did the court ask the appellant if the wished to recall the witnesses who had already testified. Mr. Ndolo urged the court to find that the appellant’s rights conferred upon him by section 214 of the Criminal Procedure Code were breached and consequently caused the appellant prejudice.

17. In support of ground 9 of the appeal by which the appellant has complained that the trial court did not consider his sworn testimony which was not controverted by any questions in cross-examination, Mr. Ndolo submitted that the appellant’s testimony adequately explained how the accident occurred and that if the learned trial Magistrate had considered it, he would have come to a different conclusion on the guilt of the appellant.

18. Mr. Omirera the Principal State Counsel submitted that the trial court’s findings were well founded on both conviction and sentence. He said that the errors committed by the trial court in not complying with section 214 of the Criminal Procedure Code were curable under section 382 of the Criminal Procedure Code which reads -

“382. Subject to the provisions herein before contained, no finding, sentence or order passed by a court of competent jurisdiction shall be revised or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation order judgment or other proceeding before or during the trial or in any inquiry or other proceedings under this code, unless the error, omission, or irregularity has occasioned a failure of justice;

Provided that in determining whether an error omission or irregularity has occasioned a failure ofjustice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

19. In the instant case, the application to amend the charge was made on 5. 10. 06 in the presence of Mr. Ndolo, counsel for the appellant during the trial in the court below. Mr. Ndolo did not object to the amendment, but after the court granted the amendment, there is no record to show that Mr. Ndolo expressed any interest to recall the three witness who had already testified. In my view, there was a chance to raise these complains earlier at the trial because the appellant was ably represented. Mr. Ndolo does not seem to have even complained when the court did not call upon the appellant to plead afresh to the amended charge. Nevertheless, as was held in the Yongo case (above) because of the failure by the trial court to give the appellant an opportunity to further question the prosecution witnesses, this court is not in a position to say whether such failure to give the appellant such an opportunity occasioned no prejudice to him.

20. On whether or not the prosecution established its case beyond any reasonable doubt Mr. Omirera submitted that the prosecution had indeed done so. He relied on the evidence of P.W.1 and P.W.4 and submitted that the sum total of the said evidence was that the appellant is the one who hit the deceased person under circumstances that were dangerous, and in particular that the accident occurred at night, down a slope and when visibility was poor, and that the appellant failed to take note of other road users at the time of the accident. Mr. Omirera also submitted that the appellant’s admission that he was unable to avoid hitting the “thing” he saw ahead of him is a clear manifestation that the appellant was driving at dangerously high speed under poor visibility.

21. In the alternative, Mr. Omirera submitted that if this court should find that the errors committed by the trial court in contravention of section 214 of the Criminal Procedure Code are not curable by the provisions of section 382 of the Criminal Procedure Code, then the court should find the entire proceedings before the lower court a nullity and order a retrial on the grounds that:-

(a) The offence with which the appellant was charged is a very serious offence that ought to have been tried in accordance with the law;

(b) The state witnesses are readily available.

(c) Admissible evidence on record will, if properly considered, lead to a successful prosecution on retrial and that there are no gaps in the prosecution’s case that would be filled in during retrial.

(d) The appellant was arraigned in court on 2. 09. 04 and that the period of 3½ years since the arraignment was not too long no prejudice the rights of the appellant if the case goes for retrial.

The main issue to reconsider when deciding whether or not to order a retrial is if, the order for retrial will cause prejudice to the appellant.

22. It is now my duty as the first appellate court to reconsider and evaluate the evidence afresh with a view to reaching my own conclusions in the matter. (see OKENO -VS- R [1972] EA 32. It is only after such reconsideration and fresh evaluation that I can safely say whether or not the conclusions reached by the trial magistrate were made on a sound legal basis.

23. I have now reconsidered the whole of the evidence on record. I have also evaluated it afresh and also considered the applicable law.

Against that backdrop, I have reached the conclusion that the prosecution’s evidence fell short of establishing its case beyond any reasonable doubt. Firstly, though it is not disputed that the appellant’s vehicle hit the deceased, there is no other evidence to suggest that the appellant drove recklessly or dangerously. P.W.4 said that he witnessed the accident from a distance of about fifty metres away on a dark night. It was not within his reach to see how the deceased behaved in the road and whether it was not the deceased’s fault that the collision occurred right in the lane in which the appellant was driving. I hasten to add that it is now trite law that the mere fact of a collision does not connote dangerous driving on the part of the suspected offending party.

24. Under the relevant section of the Traffic Act, Cap 403 Laws of Kenya, for a driver to be found guilty of causing death by dangerous driving he must be proved to have

driven recklessly or at a speed

driven in a manner which is dangerous to the public, having regard to all the circumstances of the case

left the 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

The amount of traffic which is actually at the time, or which might reasonably be expected to be on the road

25. In the instant case, I do not find any evidence showing the manner in which the appellant drove his vehicle apart from a fleeting mention by P.W.4 that the appellant swerved his vehicle once from the right to the left and then he heard a bang. P.W.4 did not say that he saw the appellant’s motor vehicle being driven at high speed or in a zig-zag manner over some distance. I have also not been able to see evidence on record showing what the nature, condition and use of the road was at the time of the accident. The mere fact that the appellant admitted he hit somebody and that after the collision he had to ran to the Wote Police Station for his own security does not, according to the law, connote dangerous or reckless driving.

26. Further, I have found no evidence to suggest that the appellant did not act reasonably just before the accident. Right after the accident, the appellant took off leaving the deceased to his own fate but I think the reason given for such conduct is reasonable. The sum total of what I am saying is that no sufficient evidence was adduced to warrant the conclusive finding by the trial court that the appellant acted in a reckless or dangerous manner. From the evidence of P.W.3, the deceased was the owner of his own misfortune.

27. Should this court now order a retrial? I have considered this plea by the state and reached the conclusion that this is not a proper case for a retrial. I believe that to order a retrial would greatly prejudice the appellant. I appreciate that an innocent life was lost in the process, but the evidence on record is so weak that in my view it would be a futile exercise to order a retrial in this case.

In the result, this appeal succeeds. The convictions are quashed and the sentences are set aside.

It is so ordered.

Dated and delivered at Machakos this 16th day of April, 2008.

R.N. SITATI

JUDGE

Judgment delivered by: Lenaola J

I. LENAOLA

JUDGE