[2022] KEHC 15428 (KLR)

Kieti v Republic (Criminal Appeal E056 of 2021) [2022] KEHC 15428 (KLR) (18 October 2022) (Judgment)

Neutral citation: [2022] KEHC 15428 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E056 of 2021

GV Odunga, J

October 18, 2022

Between

Sammy Mutinda Kieti

Appellant

and

Republic

Respondent

(Being an appeal from the judgment and sentence of Hon. Shikwe (PM), delivered on 14th September, 2021 at the Principal Magistrate’s Court at Kithimani in Traffic Case No. 128 of 2018)

Judgment

1. The appellant, Sammy Mutinda Kieti, was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act, Cap 403 Laws of Kenya. The particulars of the offence were that on the 16th June, 2018 at about 14000 hours along Thika Matuu Road at Yatta NYS area in Yatta District of Machakos County, the Appellant being the driver of motor vehicle Reg. KCQ 788M make Subaru Saloon Car, drove the said vehicle along the said public road in a manner that was dangerous to other road users having to all circumstances, nature and conditions of the road and amount of traffic which was expected to be on the road at that time and knocked one pedestrian namely Lorna Jerono Bowen who succumbed to the injuries on the spot.

2. The prosecution’s case as narrated by PW2, Meshack Kipkoech Muly and PW3, Mark Maina, was that on 16th June, 2018 at 2pm, the deceased alighted from a matatu and crossed the road. Another matatu that was overtaking at high speed went to the other lane and a Subaru KCQ 788M that was coming from the opposite, in order to avoid collision with the overtaking matatu, swerved onto the pedestrian walk and collided with the deceased who died instantly. According to him, the vehicle was speeding because it did not stop at the point of impact but stopped 25 metres away. He stated that the body was slightly off the road at the edge of the road. According to them there was no bus stop at the scene where the deceased alighted and she was dropped on the road.

3. PW1, Philomena Sila, from NTSA identified the motor vehicle inspection report on behalf of Richard Njoroge who was on transfer. According to the said report, apart from the damages to the vehicle, there were no pre-accident defects noted. That report was however not produced following an objection from the defence based on the competency of the said witness. PW4, the investigations officer, PC Peter Omulo, received the information of the said accident and in the company of PC Driver Murambi, he proceeded to the scene where he found the body of the deceased on the left side of the road facing Matuu. He recorded statements from the witnesses including her colleagues. He also drew a sketch plan of the scene. According to him the appellant’s vehicle was extensively damaged especially on the front and was 160 metres from the point of impact while the driver had fled from the scene. The said vehicle was towed to Matuu Police Station for inspection. He produced the rough sketch, the fair sketch, legends, the inspection report and the notice of intended prosecution. According to him the appellant was to blame for the accident since the distance of 160 metres from the point of impact was indicative of speeding. He stated that there was a sign of people crossing because there is a school around and the accident could have been avoided had he slowed down. PW5, PC Felix Kiplagat Yego, a nephew of the deceased identified the body of the deceased for the purposes of post mortem examination at Yatta Funeral Home.

4. Upon being placed on his defence, the appellant testified that on 16th June, 2018, at around 2. 30pm he was on his way to Kitui to attend a church conference, being a pastor, when near the main NYS gate he saw a stationary vehicle on the right. Someone emerged from the stationary vehicle suddenly and started running across the road. Though he applied emergency brakes, due to the short distance he was unable to avoid colliding with her. According to him, there was a ditch on the left side so he could not swerve. Since everything happened in a flash he did not swerve towards the right. It was his evidence that he stopped a few meters from the point of collision and came out but since there was a hostile crowd that was threatening them, they boarded a motor cycle and left the scene with the mob surrounding their vehicle. He reported the accident at Makongeni Police Station and later recorded his statement at Matuu Police Station. According to him, he was not in a hurry hence his sped was between 70-80 Kph. It was his evidence that the vehicle was not extensively damaged and that the damages noted in the inspection report could have been caused by the mob since he recovered the vehicle vandalised. He stated the he stopped the vehicle 10 metres away.

5. The evidence of the appellant was supported by DW1, Anthony Muhosoch who was with the appellant in the said vehicle. According to him the vehicle was being stoned as they were leaving while other pushed the vehicle and caused it to roll while other vandalised it. According to him, the impact was on the appellant’s lane.

6. DW3, PC James Maina confirmed that the appellant reported the accident at Makongeni Police Station.

7. In his judgement the learned trial magistrate found that based o the evidence on record, the deceased was hit off the road. Since there was a pedestrian crossing less than 10 metres from the point of impact, he found the exercise of caution was necessary. He therefore found that the appellant failed to heed the pedestrian crossing and hit the deceased off the road. As a result, he found that as a result of the failure on the part of the appellant, the cause of the accident was speeding and collision with the deceased off the road.

8. On behalf of the appellant it was submitted that from Section 46 of the Traffic Act, the elements of the offence which ought to have been proved by the prosecution as against the Appellant were:a.That the Appellant was driving recklessly;b.That the Appellant was driving at a speed dangerous to the public;c.That the Appellant was driving in a manner dangerous to the public;d.That the acts of the Appellant person caused the death.

9. It was submitted that from the evidence of PW1, the Appellant was indeed driving a vehicle that was in good condition and that the damages that were noted upon inspection of the vehicle were not and could not have been caused by the accident or the collision between the motor vehicle and the deceased. According to the appellant, from the evidence adduced, the Appellant was neither driving recklessly, nor was he driving in any dangerous speed or manner as alleged. Otherwise, he would not have managed to stop the vehicle a few meters away, on the road and upright without rolling. The Appellant was fully in control of the vehicle because it was moving at a reasonable speed. In any event, none of the witnesses testified about or confirmed the speed at which the Appellant’s motor vehicle was moving, despite asserting that the Appellant was ‘over speeding’. In his submissions, the extent of the subsequent damage that was caused by third parties after the incident cannot therefore be used to form any adverse opinion against the Appellant about either reckless driving, dangerous driving or driving at a high speed. This evidence ought to be applied in favour of the Appellant.

10. It was noted that there were inconsistencies/contradictions in the evidence of PW2 and PW3 regarding the position of the deceased at the time of the accident with PW2 testifying that the incident happened when the deceased was crossing and was ‘almost getting off the road’ while PW3 testifying that the incident took place when the deceased had crossed and ‘was walking on the pedestrian path’. The two witnesses here both claimed to have witnessed the accident and yet they seem to have seen different occurrences. It was also submitted that the two witnesses upon cross-examination, confirmed that indeed ‘they only turned to look when they heard the sound of the impact’. This means that contrary to their assertion that they witnessed the accident, they had seen nothing and their attention was only drawn to that direction after the incident.

11. It was submitted that there had to be a consistent and straightforward set of facts against which the Appellant would be required to defend himself. It was therefore not safe to put the Appellant on his defence in the first place.

12. It was submitted that PW4, the Investigating Officer, confirmed that the police arrived at the scene about 2 hours after the incident, at around 4:00pm. It is expected that the scene had been interfered with and what the police found is not what was there earlier. This is because evidence was led by the prosecution witnesses, including PW4, that there were rowdy NYS students at the scene who gathered after the accident and they were rioting. According to the submissions, PW4 did not establish the point of impact at the scene, whether it was on the road or off the road. He testified that the point of impact was shown by skid marks, yet he never took any photographs of the scene of accident to demonstrate the allegations. He also called it “possible point of impact” in his sketch map, meaning he was not sure about it and also that indeed there were no skid marks as alleged. It was submitted that he did not establish why there was a difference in the witness statements concerning the distance at which the vehicle stopped and what he himself had found; that he failed to establish what may have happened to the vehicle which was said to have been on the main road after the incident, without much damage, and yet later found to be off the road and extensively damaged; that he did not seek to establish whether there was indeed a third 3 motor vehicle on the road which apparently got into the Appellant’s lane, and if true, what would have been the possible impact of having 3 such vehicles by-passing each other while moving in different directions; that he also ignored and dismissed the statement by the Appellant when he informed him that while driving, “he suddenly saw the deceased on his path”. PW4 just dismissed that statement as the Appellant’s way of defending himself; that he failed to consider whether the deceased could actually have been the one who was careless in crossing the road and hence the one to blame for the accident; and that he alleged that the Appellant “fled the scene and showed up 4 days later” without seeking to establish what made the Appellant and his co-driver to run away in the first place.

13. In view of the above, it was submitted that had proper and thorough investigations been carried out, the Appellant would not have been charged with the offence. It was urged that the investigations herein were not properly done in order to prove this case and, consequently, the Appellant should have the benefit of doubt.

14. According to the appellant, the prosecution failed to call vital evidence to prove the cause of death and, consequently, the particulars of the charges were not proved. It was incumbent upon the prosecution to produce the post mortem report so as to ascertain the cause of death of the deceased. It was submitted that just because the deceased may have died on the spot, does not mean that she died as a result of the accident. She could even have been coming from hospital with other pre-conditions that would have led to her passing on. Evidence ought to have been produced to confirm the cause of death and remove any other doubts or possible explanations. The Appellant’s freedom is at stake, and the prosecution cannot be allowed to gamble with that. To the appellant, without such evidence, the prosecution’s case has not been proved. Reliance was placed on Republic v Joash Omal Juma [2016] eKLR, Republic v W C C [2017] eKLR and Republic v Cheruiyot Serem & Another [2014] eKLR.

15. According to the appellant, in the absence of such vital evidence, the benefit of doubt ought to be given to the Appellant.

16. According to the appellant based on the prosecution’s evidence that there were three vehicles on the road at the time of the accident, even if that was to be taken as the true facts in this case, which is denied, it would not be right to find fault with the Appellant. This is because, if you are driving on your lane and another vehicle comes towards you, the first instinct would be to swerve to avoid a head-on collision, and the only safe and possible option would be to take your left side. The Appellant could not therefore be faulted for exiting from his lane for his own safety and even that of the alleged overtaking vehicle. That cannot be termed as careless or dangerous driving.

17. Therefore, if the prosecution’s case was to be taken as the truth, then there ought to have been two more drivers being charged for causing death either by “reckless driving” or by “leaving the motor vehicle on a road in such a position or manner as to be dangerous to the public” because it was the actions of the driver of the stationery vehicle and those of the overtaking vehicle that led to the accident. Nonetheless, the Appellant’s testimony was that no such thing happened, there was no overtaking vehicle. The deceased showed up suddenly on his path and he could not avoid hitting her.

18. It was noted that in his judgement the learned trial magistrate found that there was no outright recklessness or intoxication. This Court was urged, based on that finding, to uphold the trial court’s finding that the Appellant was never reckless or careless and that the accident was unavoidable however much he tried to brake as it was too sudden. In any event, even the prosecution’s version of the events ought to have been considered as exonerating evidence in favour of the Appellant.

19. It was submitted that since the defence was not controverted the Court to take into account the facts presented by the Appellant in his defence. It was noted that the defence testified that the deceased was hit while running across the road in front of the Appellant’s vehicle. It should also be noted that, going by the Appellant’s account of the events, by the time the deceased was hit, she was in motion, she was running, and the only logical reaction upon the impact would have been for her to be thrown off towards where she was headed.

20. It was submitted that the trial court erred when it made a finding that clearly took sides with the prosecution when it was clear that there were two versions of the story. The benefit of doubt ought to have been given to the Appellant. According to the appellant, the trial court erred even further when it made the finding that the point of impact was off the read because the deceased’s body was found off the road.

21. On over-speeding, it was submitted tat the Traffic Act refers to the act of going beyond a prescribed speed limit as “exceeding speed limit” and not over-speeding. The National Transport and Safety Authority imposes and regulates the speed limits for various roads depending on the circumstances and nature of the road. For such regulation to be effective, there are usually ways of limiting the speed of motor vehicles for instance by use of speed limit road signage, speed bumps and creating pedestrian crossing sections on the road. In this case it was submitted that no evidence was tendered to show how the conclusion that that the Appellant caused an accident because he was driving beyond the speed limit was arrived at. There were no photographs of any skid marks that would have probably been analyzed by an expert to determine the speed at which the vehicle was moving. The prosecution did not tender any technical evidence, such as the recordings of a speed gun or camera, that could have shown the speed at which the Appellant was driving just before the accident. In support of the submissions, the appellant cited the case of David Njogu Gachanja v Republic [2015] eKLR.

22. Consequently, it was submitted that the prosecution failed to prove that the Appellant was driving beyond the speed limit, or in any reckless or dangerous manner, an issue that goes to the root of the charges preferred against him.

23. Based on other possible theories, it was submitted that without proper investigations, it is possible to apportion blame and even find fault where it ought not to be. Just because a life was lost does not mean that the Appellant is to blame, the deceased may also have been to blame. The investigation done in this case was not thorough and it was not conclusive; it leaves a lot to be desired. This ought to have been construed in favour of the Appellant.

24. In the appellant’s view, since the trial court had found that there were no aggravating circumstances to warrant a custodial sentence, the sentence that was imposed was still harsh in the circumstances.

25. It was therefore submitted that the prosecution failed to prove the case against the Appellant beyond reasonable doubt as required by law. The evidence given by the prosecution witnesses is insufficient to sustain a conviction as the same did not even support or prove the charges against the Appellant. According to the appellant, there was no evidence pointing directly to the guilt of the Appellant, and after his testimony, a lot of doubt has been cast upon the allegations made against the Appellant. No medical evidence or any other independent evidence was called to corroborate the evidence of the prosecution witnesses. The Court was urged to quash the conviction and the sentence, acquit the Appellant of the charges and set him free and order that the fine of Kshs. 50,000. 00 paid by the Appellant be henceforth refunded to him.

26. The Respondent did not submit despite having been given the opportunity to do so.

Determination 27. I have considered the evidence adduced as well as the submissions made on behalf of the respective parties. This being a first appeal, this Court is, as a matter of law, enjoined to analyse and re-evaluate afresh all the evidence adduced before the lower court and to draw own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. R. (1957) EA. 570). 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 finding and conclusion; 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, see Peters v Sunday Post [1958] EA 424. ”

28. Similarly, in Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:1. 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.2. 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; 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.

29. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. We adopt what was stated by the Supreme Court of Uganda in the case of Uganda Breweries Ltd v Uganda Railways Corporation [2002] 2 EA 634, thus:“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11:“I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scruitinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”

30. It was therefore held in David Njuguna Wairimu v Republic [2010] eKLR by the Court of Appeal as follows:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”

31. In the same vein the Court of Appeal in Isaac Njogu Gichiri v Republic [2010] eKLR expressed itself as hereunder:“With regard to failure by the superior court to give due consideration to the appellant’s defence we wish to state that his defence was a mere denial of the charge and the sequence of events of his arrest. The trial court stated after narrating it thus:“I find that the defence of the 5th accused is not true.”We would not have expected the trial Magistrate to say more because the appellant said nothing about the events of 8th October, 1998. On this, the superior court stated:“The trial Magistrate was also right in rejecting the defence of the appellant in the circumstances.” We agree with this confirmation.”

32. It was therefore concluded by the Supreme Court Uganda in Odongo and Another v Bonge Civil Appeal 10 of 1987 (UR), (Odoki, JSC) that:“While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.”

33. Section 46 of the Traffic Act. Cap 403 Laws of Kenya 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.

34. This provision and provisions couched in similar terms has been the subject of judicial pronouncements in this country and in other jurisdictions. A case in point is Ngure v Republic [2003] EA in which the Court of Appeal had the following to say:“The mere occurrence of an accident alone is not enough to prove a charge of causing death by dangerous driving under section 46 of the Traffic Act. Evidence must disclose a dangerous situation and the driver must be shown to be guilty of a departure from the normal standard of driving which would be expected of a reasonably prudent driver.”

35. In Atito v Republic [1975] EA 278, the Court of Appeal dealt with a case in which the appellant had been convicted for the offence of dangerous driving resulting in the death of two persons. At page 280 the court said:“The question in this case is whether the appellant took avoiding action at all, or in good time, and whether by not taking this action, or delaying taking it unduly, he caused a dangerous situation to arise for whose consequences he is criminally liable.”

36. The Court of Appeal went on to re-state the standard of proof and the test, as was laid down in Kitsao v 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. The Court of appeal went on to make the following observation:“In Kitsao’s case the appeal was allowed, as the most the prosecution could show was an error of judgment on the part of the driver.”

37. In Atito v Republic (above cited), at page 281, the court said:“The fact that the motor –cyclist may have been at fault in not passing safely in the three or four feet of tarmac available to him is, in our opinion, immaterial. It would not cancel out the appellant’s fault, in not taking avoiding action in time, which fault, whether it should properly be described as careless or dangerous driving, was clearly more, in the circumstances of this case, then a mere error of judgment.”

38. The law as regard the test to the applied when considering whether or not a driver is said to have been driving in a dangerous manner was stated in the case of R v Evans [1962] 3 ALL ER 1086 at page 1088 where Fenton Atkinson J. A. stated that:“... the objective test, because it has been laid down again and again in the reported cases, among others by Lord Goddard C.J. in Hill v Baxter (1) where he said:“the first thing to be remembered is that the statute contains an absolute prohibition against driving dangerously or ignoring halt signs. No question of mens rea enters into the offence; it is no answer to a charge under the section to say ‘I did not mean to drive dangerously’ or ‘I did not notice the halt sign’.”It is quite clear from the reported cases that, if in fact a man adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.”

39. Section 46 of our Traffic Act is similarly worded like the English Act that the learned judge referred to and states that“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...”The said section of the Traffic Actis absolute in terms of liability. It does not matter that the driver thought that he was driving as best as he could in the circumstances. If the court is of the opinion that he was driving dangerously, then he shall be found guilty of the offence of dangerous driving. The above English decision was quoted with approval by V. V. Patel, J. in the case of Okech v Republic [1990] KLR 705.

40. In Thoya v Republic [2000] eKLR, Waki, J (as he then was) held that:“On persuasive authority in the Tanzanian case of Pyarali v Republic [1971]EA 169:“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”.....Again 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. The Court of Appeal in Atito v Republic [1975] EA 281 also laid down the law on the standard of proof:“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 that situation”.“Fault” was defined in another Court of Appeal case Orweryo Missiani v Republic [1979] KLR 285 at page 289:““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.”Those are the principles I have to apply. The evidence available and accepted by the learned trial magistrate was that the appellant was driving the matatu at speed. Five witnesses who were in the matatu testified so. One of them put the speed at between 90 - 120 Kmph. It was overloaded. It overtook several other vehicles on the same road and was in the process of one such overtaking manouvre when it hit a spot of spilled oil on the road. There is evidence, also accepted by the learned trial court that the oil-spill had been there for sometime. The appellant had passed through the same road three times earlier. There was evidence also that it had rained. Those are the conditions of the road the appellant had to contend with.The police officer who visited the scene and drew a sketch produced as exhibit 6, showed that the vehicle rolled and came to rest 350 meters away. It had no pre-accident defects as proved by the vehicle examiner exhibit 7. The deceased’s head was split into two upon impact according to the post mortem report exhibit 8. I agree with the learned trial magistrate in view of these circumstances and evidence on record that the appellant drove in a dangerous manner. I would dismiss the appeal on conviction and now do so.”

41. In this case there is evidence from PW2 and PW3 was that the deceased was alighting from a vehicle which was parked on the road. Another vehicle was trying to overtake the said vehicle and the appellant who was coming from the opposite side swerved and hit the deceased who was of the road. Going by that version, one can easily conclude that the accident occurred of the road since it is not possible that three vehicles could fit on the two lanes.

42. However, the appellant did not mention the existence of the third vehicle that was overtaking. According to him, the deceased was running across the rod when the collision occurred. There was, however evidence that there was pedestrian crossing at the place where the accident occurred or nearby. In my view the presence of the pedestrian crossing ought to have put the appellant on notice and he ought to have reduced his speed to 50kph. He said he was driving at between 70-80 kph. Even if I accept his evidence on speed, I would still find that his sped was in excessive in the circumstances. However, the trial court found that the appellant was driving at a high speed and that the deceased was hit of the road. In Richard Kaitany Chemagong v Republic [1984] eKLR it was held by the Court of Appeal that:“A court on appeal will not normally interfere with a finding of fact by the trial court whether in a civil or criminal case unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”

43. However, the prosecution failed to produce the post mortem report so as to prove the case of death. In the case of Republic v Joash Omal Juma [2016] eKLR, the Court held inter alia that:“.... Having found that indeed the Accused assaulted the deceased which apparently caused his death, there was no medical evidence to suggest the above findings! From the record although Dr, Matilda Wendo PW7 marked the post-mortem report the author of the same Dr. Dickson Michana was not called to produce the same. Its trite law that for the offence of murder to be established the postmortem report ought to be produced. Infact this court vide its ruling of 17th November 2014 re-opened the case afresh under the provisions of Section 150 of the Criminal Procedure Code and Article 159 of the constitution so as to allow the prosecution time to call the said doctor. The prosecution for the reasons best known to it failed to seize the opportunity. That opportunity was well seized as expected by the defence.11. Although, therefore there is factual evidence that its the Accused who assaulted the deceased based on the evidence on record, medically there is no such sufficient evidence. There is nothing to verify the cause of deceased's death ... ”

44. Further in the case of Republic v W C C[2017] eKLR, the Court held inter alia that:“.. The failure to bond a doctor and failure to produce the autopsy report in respect of the two deceased children is fatal to the prosecution case. Without such evidence notwithstanding during the strength of any other available evidence a charge of murder cannot stand... ”

45. In addition, in the case of Republic v Cheruiyot Serem & Another [2014] eKLR, Lesiit, J (as she then was) held inter alia that:“...It was necessary for the prosecution to call sufficient evidence to establish its case. The requirement is for the prosecution to call adequate evidence to support its case and that the prosecution failed to do. The court is in the circumstances justified to make an adverse inference that the reason the vital witnesses were left out was because if their evidence was adduced, it could have tended to be adverse to the prosecution case...”

46. In Benson Ngunyi Ndungu v Republic Nairobi Criminal Appeal No. 171 of 1984 (Nyarangi, JA & Platt & Gachuhi, Ag.JA expressed themselves as hereunder“On this first appeal our task is to give our own consideration and views of the evidence as a whole and our decision thereon. It is our duty to rehear the case and as regards credibility of witnesses to be guided by the Judge’s impressions, if any, of the witnesses he saw and heard. We have to be satisfied that there was evidence upon which the Judge could properly and reasonably find as he did: Shantilal M. Rawala v R [1957] EA 570 and Answar Kimngetich v R, Criminal Appeal No. 14 of 1985 (unreported) .... Where the body is available and the body has been examined, a post-mortem report must be produced, the trial court having informed the prosecution that the normal and straightforward means of seeking to prove the cause of death is by regularly producing the post-mortem examination report as a result of which the medical officer who performs the post-mortem examination is cross-examined. Here, no post-mortem examination report was produced. Very poor reasons were given for not producing it. The original report must have been lying in some Hospital or Police file. The haste to produce the unsatisfactory copy is in the circumstances inexplicable and was unhelpful to the prosecution and to the Judge. The prosecution, relying on the decisions in Republic v Cheya and Another [1973] EA 500, argued that death and cause of it could be established otherwise than by medical evidence and that the evidence of PW1 about the sickness of the deceased proved that the deceased’s death was as a result of the accused’s attack on him on 18th January, 1983. It was also submitted before the Judge that a doctor gives only opinion evidence which the Court can accept or reject. The judgement in Cheya gives no report of what injuries were sustained although there is a reference to vicious assault, bleeding in several places and that the deceased was assaulted by a group of people. That decision does not illustrate the proper application of the principle that in some cases death can be established without medical evidence. Of course there are cases, for exam0ple where the deceased person was stabled through the heart or where the head is crushed, where the cause of death would be so obvious that the absence of a post-mortem report would not necessarily be fatal. But even in such cases, medical evidence of the effect of such obvious and grave injuries should be adduced s opinion evidence and as supporting evidence of the cause of death in the circumstances relied on by the prosecution. Where a post-mortem examination is performed and a report prepared, signed and kept in safe custody, but the Doctor is not available some other medical expert could give general evidence as an expert, on the basis of the report as to whether the findings of the report are consistent with the case for the prosecution. Even where the Doctor is available it is necessary for him to correlate his opinion with the case for the prosecution. Another class of case where there is no medical evidence is the exceptional case where the body has never been found; but we are not dealing with that class. To return to Cheya. It is plain to us that the decision must be confined to what must have been an exceptional situation, a great deal of which is not given in the judgement, that the judgement is misleading, and we would be lacking in candour if we were to conceal our unhappiness about the decision.”

47. Based on this decision, I find that whereas the prosecution could have succeeded in a different charge, the offence of causing death by dangerous driving was unsustainable. Consequently, I agree that the prosecution failed to prove its case to the required standard. While it may well be that the evidence could prove negligence in a civil case, it clearly fell short of the standard expected in a case of this nature.

48. Consequently, this appeal succeeds, the conviction of the appellant is hereby set aside and his sentence quashed. Let the fine paid by him be refunded to him

49. Judgement accordingly.

G V ODUNGAJUDGEREAD, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 18TH DAY OF OCTOBER, 2022M W MUIGAIJUDGEDelivered the presence of: