[2023] KEHC 25179 (KLR)

Kimathi v Republic (Criminal Appeal E069 of 2022) [2023] KEHC 25179 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25179 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E069 of 2022

LW Gitari, J

November 2, 2023

Between

Irene Nkirote Kimathi

Appellant

and

Republic

Respondent

(An appeal against the conviction and sentence of in the Senior Resident Magistrate Court at Meru Law Courts delivered by HON. L. NJUMA (SRM) dated 27 th July 2022 in Traffic Case No. E179 of 2021)

Judgment

Background 1. This appeal arises from the proceedings in the Senior Resident Magistrate’s Court at Meru Traffic Case No E179 of 2021 where the appellant was convicted on two counts. The appeal is against both the conviction and sentence. In Count I, she faced the charge of causing death by dangerous driving contrary to Section 46 of the Traffic Act Cap 403 of the Laws of Kenya.

2. The particulars in Count I were that on the 19th day of March, 2021 at about 2120 hours at Rwarera area along Isiolo-Ruiri murram road within Meru county the Appellant, being the driver of the motor vehicle registration number KDA 168G Make Toyota Hilux double cabin, did drive the said motor vehicle on a public road in a manner which was dangerous having regards to all circumstances of the case including weather condition of the road and amount of traffic at or reasonably expected on the road, hence dangerously overtook another motor vehicle and collided with an oncoming motor cycle registration number KMFK 205M make Haojue as a result the rider namely Fredrick Murithi (the deceased) died on the spot.

3. In Count II, the Appellant faced the charge of careless driving contrary to Section 49(1) of the Traffic Act Cap 403 of the Laws of Kenya.

4. The particulars of Count II were that on 19th day of March, 2021 at about 2120 hours at Rwarera area along Isiolo-Ruiri marram road within Meru county being the driver of the motor vehicle registration number KDA 168G Make Toyota Hilux double cabin did drive the said motor vehicle on the said road without due care and attention or consideration to other road users using the road thus carelessly overtook unknown motor vehicle and collided with oncoming motor cycle registration number KMFK 205M Make Haujue as result, the pillion passenger namely Yvonne Gacheri aged 20 years sustained grievous harm.

5. The substance and elements of both charges were read to the Appellant and she denied both counts. The matter proceeded to trial with the prosecution calling a total of six (6) witnesses in support of its case against the Appellant while the Appellant testified and called one other witness in her defence.

6. After a full trial, the learned trial magistrate found her guilty on the two counts and convicted her. For Count I, the Appellant was sentenced to pay a fine of Kshs 150,000/= and in default to serve 1 year imprisonment. For Count II, the Appellant was sentenced to pay a fine of Kshs 50,000/= and in default to serve 6 months imprisonment.

The Appeal 7. The appellant was aggrieved by the aforesaid judgment of the trial court and she preferred this appeal based on the following grounds:i.That the learned trial Magistrate erred in law and in fact by finding that the Appellant was guilty of causing death by dangerous driving contrary to Section 46 of the Traffic Act due to an error in judgment and thereafter proceeded to convict and sentence her against the required standard of proof thereby arriving at an erroneous decision.ii.That the learned trial magistrate erred in law and in fact by finding that the Appellant caused a dangerous situation to occur while there was evidence to show that the accused person’s vehicle was stationary at the time of accident and evidence on record that the deceased rammed onto the accused person’s motor vehicle thereby arriving at an erroneous conclusion as to the said decision.iii.That the learned trial magistrate erred in law and in fact by finding that the Appellant’s vision was impaired without support of any evidence or against the evidence tabled by the Appellant thereby wrongly convicting and sentencing the Appellant.iv.That the learned trial magistrate erred in law and in fact by convicting and sentencing the Appellant on a charge of careless driving contrary to Section 49(1) whose particulars of offence indicated a different offence all together and/or a repealed against the binding precedent in Peter Nguu v Republic [2021] eKLR thereby arriving at an erroneous conclusion as to conviction and sentence.v.That the proceedings especially in regards to Count 2 of the charge sheet are fatally defective on account of being based on an offence i.e. careless driving, that does not exist in law.vi.That the sentence of a fine of Kshs 200,000/= and in default one year and six months in prison for both counts was highly excessive and irregular.vii.That the judgment of the learned magistrate is against the weight of evidence and authorities placed before the court therefore erroneous.viii.That the judgment the learned magistrate (Hon. L. N. Juma) dated 27th April 2022 is bad in law.

8. The Appellant thus prayed for orders that:i.This Appeal be allowed and the Honourable Court be pleased to set aside the conviction and sentence of the Appellant by Hon L N Juma – SRM dated 27th April, 2022. ii.This Honourable Court be pleased to acquit the Appellant over the two counts that she had been convicted over.iii.The Honourable Court be pleased to Order that such court fine as had been paid by the Appellant be refunded fully to the Appellant in her preferred bank account.iv.The Appellant be awarded the Costs of this Appeal.

9. The appeal was opposed by the Respondent and the same was canvassed by way of written submissions which I have summarized here below.

Appellant’s Submissions 10. The Appellant faults the trial court for finding her guilty of the two counts of causing death by dangerous driving and of careless driving. According to her, the court wrongly concluded that the occurrence of the accident from which the deceased died happened when the Appellant attempted to overtake. The Appellant stated that on the material day, the road was dusty and was not marked as it was under construction. It was thus her submission that the sketch map inaccurately had lanes drawn. She stated that an unknown third motor vehicle sped off at the scene leading behind dust on road and instead of the deceased rider stopping due to poor visibility, he continued riding in front despite poor visibility and thereby ramming unto the Appellant’s vehicle. She further stated that once the unknown vehicle sped off leaving a cloud of dust behind, the Appellant decided to swerve a little to her left and stopped her vehicle to allow oncoming traffic to pass. The Appellant thus maintained that the Appellant took all possible reasonable actions to avoid the accident and that as such, the trial court’s conclusion on her guilt was not informed by evidence.

11. In addition, it was the Appellant’s submission that her conviction on Count II was based on a defective charge. That the alleged offence contained under Count II was that of careless driving contrary to Section 49(1) of the Traffic Act while the particulars of the offence, on the other hand, described the offence of driving without care and attention to other road users. Relying on the case of Peter Nguu v Republic [2021] eKLR, it was the Appellant’s submission that for starters, the charge of careless driving was no longer an offence under our laws that a person can be charged with. Further, that the offence of driving without due care and attention (under what the Appellant’s erroneously refers to as Section 49(9)(a) of the Traffic Act) was a distinct offence. It is thus the Appellant’s submission that the trial court erroneously proceeded to convict the Appellant on an offence that did not exist in our law.

12. Finally, the Appellant submitted on the sentence imposed. It was her submission that that even assuming that the conviction was proper, the fine imposed was excessive. Further that in this case, there were no aggravating factors to warrant a custodial sentence which is usually imposed as a last resort. On Count I, the Appellant referred this Court to the cases of Genesio Kariithi Wambu v Republic [2018] eKLR and Samuel Githua Gitonga v Republic [2018] eKLR and submitted that courts have constantly fined offenders of the offence of causing death by dangerous driving with a fine of Kshs 100,000/= and a custodial sentence is not imposed. The Appellant thus urged this court to find that the fine of Kshs 150,000/= under Count I was excessive. On Count II, the Appellant maintained that the fine imposed of Ksh 50,000/= cannot be sustained in light of the defective nature of the charge.

Respondent’s Submissions 13. It was the Respondent’s submission that the prosecution proved its case beyond reasonable doubt in both counts as was is not for the actions and misjudgment of the Appellant, then the accident would not have occurred and following therefore, then the deceased person would not have died nor would have PW3 (the complainant in Count II) have been grievously injured. The Respondent contended that the cause of the accident was the fact that the Appellant swerved/turned her vehicle onto oncoming traffic causing the deceased person to ram into her vehicle and resulting in his death and grievous harm upon PW3. The Respondent thus denied the averments in the Appellant’s grounds of appeal that the Appellant’s vehicle was stagnant. The Respondent maintained that the evidence on record shows that the Appellant tried to overtake a slow moving vehicle without observing if there was any oncoming traffic on the lane that she was joining. The Respondent relied on the case of Amos Odhiambo Okoth v. Republic [2020] eKLR to buttress this position.

14. With regard to Count II, the Respondent referred to the judgment in Peter Nguu v Republic [2021] eKLR which the Appellant cited and submitted that the said judgment is not compelling to this honourable court. The Respondent relied on the judgment of the trial court where it was stated that the ingredients if dangerous driving also applied in the offence of careless driving. The Respondent thus submitted that it would be an injustice to the victim in Count II for this Court to dismiss the same due a legal technicality yet it cannot be wished away that PW3 suffered serious injuries in the same accident that the deceased was involved in.

15. On the issue of whether the sentences meted were highly excessive and irregular, it was the Respondent’s submission that the same were very lenient as the trial court even provided an option of a fine in Count I while the prescribed sentence is a custodial sentence not exceeding ten years and the prescribed sentence in Count II is a term of imprisonment not exceeding one year or a fine not exceeding Kshs 100,000/=.

The Duty of This Court 16. This is a first appeal. The duty of this Court as a first appellate court is now well settled in law. For avoidance of doubt, it is the duty of this Court to re-evaluate the evidence adduced before the trial court, analyse it, and come up with its own independent finding. The court is however supposed to make allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses to access their demeanour. [See: Okeno v Republic [1972] EA 32]This being the first appellate court, parties have a legitimate expectation that the evidence will be subjected to a fresh evaluation and consideration and the appellate court’s independent finding.In Gitobu Imanyara & 2 Others – Attorney General (2016) eKLR the Court of Appeal stated as follows:-“An appeal to this court from trial in the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must re-consider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”Thus, a first appellate court is in all respects conducts a retrial of the matter with the exception that unlike the trial it has no opportunity to see the witnesses and relies entirely on the record of the trial court. The appellate court must always come with its own independent finding. See Peters v Sunday Post Ltd (1958) EA 434 where the court stated that, if there is no evidence to support a particular conclusion, or if it is shown that the trial Judge has failed to appreciate the weight or bearing of the circumstances admitted or proved, or had plainly gone wrong the appellate court will not hesitate so to decide. See also Abok James Odera t/a AJ Odera and associates v John Patrick Machira & Company Advocates (2013) eKLR

17. I shall now proceed to re-evaluate the evidence that was presented before the trial court and give my own finding.

The Prosecution’s Case 18. PW1 was Benjamin Mithika, the father of the deceased. He stated that he attended the postmortem examination of the deceased on 29th March, 2021 at Meru Level Five Hospital. He further stated that he visited the scene of the accident and saw the subject motor cycle and motor vehicle that had been involved in the accident.

19. PW2 was Purity Gatwiri. She witnessed the occurrence of the subject accident. She testified that on the material day, she was going to a shop when a motor cycle carrying a passenger passed her. In front, there was a lorry carrying sand that was headed the opposite direction. There was also a motor vehicle behind the said lorry. The said motor vehicle then came out of its lane suddenly while trying to overtake the lorry and knocked the motor cycle that had a rider and a passenger. Members of the public ran to the scene to assist the people on the motor cycle. The rider of the motor cycle died on the spot while the passenger was rushed to hospital by a Good Samaritan.

20. PW3 was Yvonne Gacheri. She stated that on the material day between 6. 30 p.m. and 7. 00 p.m., she was heading home from her grandmother’s place. She had boarded a motor cycle and along the way, they met a lorry heading in the opposite direction. Suddenly, a motor vehicle overtook the lorry. The rider of the motor cycle tried to swerve away but the motor vehicle hit them head on as a result of which the rider of the motor cycle passed away and PW3 was injured. It was her testimony that she was taken to hospital by a Good Samaritan and was treated. That as a result of the accident, her right leg and back got injured and she later lost her 6 months’ pregnancy.

21. PW4 was Richard Kiongo Njoroge, a motor vehicle inspector working for National Transport and Safety Authority. He produced the inspection certificates and test of vehicle for motor vehicle registration No KDA 168G Toyota double cabin and motor cycle registration no KMFK 205N Haojue which had been involved in a fatal road accident. He conducted the inspections on 23rd March, 2021 at Subuiga Police Station. His testimony was that the said motor vehicle and the motor cycle had damages arising from the impact of the collision

22. PW4 stated that he noted the following from the said motor vehicle: wind screen was smashed; airbags were deployed; dashboard was damaged; front bumper was damaged at offside edge; front body part was also damaged at offside edge; the bonnet was also slightly dented at offside edge; offside headlights were broken; the chassis was intact; braking system was serviceable; and all tyres were intact. PW4 came to the conclusion that the motor vehicle had no pre-accident defect. He produced the inspection report dated 23rd March, 2021 as P. Exhibit 2.

23. PW4 further stated that he also inspected motor cycle registration no KMFK 205N Haojue on the same 23rd March, 2021 and produced the inspection report as P. Exhibit 3. In this regard, he noted that the speedometer of the motor cycle was smashed and damaged; both shocks were bent; offside mirror was ripped off; front mud guard was damaged; knee guard was bent at offside; the chassis was intact; the front back left head lamp was damaged and the rear side front indicator were damaged; front rim was bent and both tyres were okay. From this inspection, PW4 concluded that all these were accident defects.

24. PW5 was Dr. Mwangi Maria. He produced PW3’s P3 Form dated 3rd June, 2021 as P. Exhibit 1. The same was authored by one Dr. Rarama who was out of the country and whose handwriting PW5 stated she was conversant with. It was PW5’s testimony that PW3 sustained injuries to the lower limbs and back following a road traffic accident on Ruiri-Meru road. That three days after the accident, PW3 developed low abdominal pain while with a pregnancy of approximately 26 weeks of gestation. That later, it was found that she had lost the pregnancy and the foetus was induced to delivery. PW3 had a cast applied and was given pain killers and antibiotics.

25. PW5 also produced a postmortem report dated 29th March, 2021 as P. Exhibit 4. The same was filled by one Dr. Gitura who was indisposed at the time but whose handwriting PW5 stated she was conversant with. It was noted from the postmortem examination that the deceased had abrasions on the right knee and anterior right legs and right lateral mariolas, compound right impact shaft tibia fibula fracture and a closed right femoral mid-shaft fracture. Considerable amount of blood had accumulated in the long toiletry and his spleen had ruptured 750mls of blood in the abdominal cavity. The examining doctor concluded that the cause of death was severe bleeding secondary to the blunt chest and abdominal injuries.

26. PW6 was Corporal John Mechumo attached at Subuiga Police Station. He was the investigating officer in this case. He recalled that on the material day at 0200H, he was at the station when he was informed by the base commander that an accident had occurred at Rwarera area on Ruiri-Isiolo road involving a motor cycle and a motor vehicle. He rushed to the scene and found both the subject motor cycle and the motor vehicle. The driver of the motor vehicle and the victim of the motor cycle were not at the scene. PW6 drew a sketch plan of the scene and moved the motor cycle and the motor vehicle to Ruiri police station. He then proceeded to Meru Level Five hospital and found the rider at the mortuary. He then went back to the station and booked the report in the occurrence book. The driver of the motor vehicle recorded her statement on the following day while the other victim of the accident was taken to Isiolo Level Five Hospital in serious condition and later recorded her statement two months later. PW6 produced the sketch map and a rough sketch map as P. Exhibits 5 and 6 respectively.

The Defence Case 27. DW1 was Irene Nkirote Kimathi, the Appellant herein. It was her testimony that on the material day, she was driving heading to Meru from Mugae. The road was under construction. According to her, there was a pickup carrying maize stalk ahead of her. She stated that the maize stalk protruded from both sides and that the driver of the said pickup was driving in a zigzag motion. It was her testimony that she slowed down and waited for the driver of the pickup to move it as it was dusty. That she reached Rwarera at around 7 pm and the driver of the pickup started slowing down like he was going to stop. DW1 signaled to overtake him and as she was overtaking him, the driver of the pickup started accelerating in a zigzag motion. It was DW1’s testimony that the subject motor cycle was oncoming ahead of her and that she decided to stop her motor vehicle and signal the motor cycle with her hazard. She further stated that she could not swerve much because the pickup was on that lane and so she swerved a little and stopped. That while she expected the motor cycle to also stop, the motor cycle neither stopped nor swerved and the motor cycle and DW1’s motor vehicle collided head on.

28. DW2 was Douglas Mwenda, the Appellant’s brother. He recalled receiving a call from the Appellant on the material day. The Appellant informed him that she had been involved in an accident at Ruiru. DW2 stated that he proceeded to the scene and found that the accident had involved a motor cycle and the Appellant’s motor vehicle. He however did not find the motor cycle rider or the passengers at the scene. Motor cycles riders had crowded the scene. According to DW2, he sensed danger and rushed to the police where he made a report of the accident on behalf of his sister.

Issues for Determination 29. I have considered the grounds and record of appeal as well as the submissions by the parties and the authorities referred to therein. The main issues that arise for determination are:i.Whether the prosecution proved its case against the Appellant in Count I to the required stand of beyond any reasonable doubt;ii.Whether the charge under Count II was defective, and if so, whether the same prejudiced the Appellant so as to make her conviction unsafe;iii.Whether the sentence meted out against the Appellant was excessive in the circumstances.

Analysis Whether The Prosecution Proved Its Case In Count I To The Required Stand Of Beyond Any Reasonable Doubt 30. In Count I, the Appellant was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act. The said Section 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 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.”

31. In this case, the undisputed facts are that on the material day, motor vehicle registration no KDA 168G, which was being driven by the Appellant, was involved in an accident with motor cycle registration no KMFK 205M which the deceased, Fredrick Murithi was riding. The deceased passed away as a result of the injuries sustained in the accident.

32. It came out clear from the testimonies of PW2, PW3, PW4 and PW6 that the accident occurred while the Appellant was overtaking the vehicle ahead of her. The disputed fact is whether the death of the deceased, Fredrick Murithi, was as a result of dangerous driving by the Appellant.

33. PW2 and PW3 witnessed the occurrence of the accident. They both testified that the motor vehicle being driven by the Appellant suddenly left its lane and joined the lane of the motor cycle which was coming from the opposite direction causing a head on collision. That as the Appellant joined the opposite lane as she was trying to overtake a vehicle that was in front of her. The investigating officer, PW6, corroborated the evidence of the two eye witnesses.

34. Further, it was the evidence of PW4 on cross-examination that on inspecting the front bumper of both the motor vehicle and motor cycle, he noted damages on the offside edge of the motor vehicle which evidenced that the impact was at the edge of the driver’s side. That on inspecting the motor cycle, he formed the opinion that it was not ran over but rather, that it rammed into something. That had the motor vehicle ran over the motor cycle, the extent of damage would have been greater.The question is whether the appellant was at fault and created a situation of danger. The Court of Appeal in the case of Kitsao v Republic Mombasa High Court Criminal Appeal No 75/1975 (unreported) it was stated 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 of fault.In the case of Peter Ngilu v Republic, (supra) Justice Ondunga (as he then was) cited the case of Republic-Gosney (1971) All ER 220 where fault was dealt with. It was stated “Fault” certainly does not 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 case 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 is a momentary lapse, even though normally no danger would have arisen from it is sufficient.”In this case the issue therefore is not whether or not there was a dangerous situation created by the appellant but whether she played a part in causing the situation to be dangerous. In other words was the appellant at fault and did that fault create a situation which was dangerous in the circumstances.The Court of Appeal on Atito v Republic (1975) EA 281 the court stated- “It would not cancel out the appellants fault in taking avoiding action in times which fault, whether it should be described as careless or dangerous driving was clearly more in the circumstances of the case than a mere error of Judgment.”Looking at the provision of Section 46 of the Traffic Act, the ingredients are “causing the death of another by driving a motor vehicle recklessly at a speed or in a manner which is dangerous to public…”It matters not that the driver contends that his manner of driving was okay or that the action he took was the best in the circumstances, if the court is satisfied that his manner of driving was dangerous, he shall be convicted. If he was at fault no amount of explanation will remove the blame from him.The testimonies of eye witnesses, that is PW2 and PW3 – testified that the appellant suddenly emerged from behind a lorry which it was overtaking and it hit the motor cycle. The appellant herself admitted that she was overtaking a slow moving vehicle. She saw the motor cycle which was on coming. She expected the motor cycle to swerve on the other side it did not. The evidence by PW2 & 3 and the admission by the appellant that she was overtaking when the accident occurred clearly shows that she was at fault and created a situation of danger which contributed to the cause of the fatal accident. The explanation by the appellant on how she tried to avoid the accident is irrelevant.

35. Having considered the evidence tendered before the trial court as well as the submissions of the parties in this appeal, I find that accident occurred at 7. 00 p.m. on a road that was under construction. The Appellant ought to have reasonably expected that there was oncoming traffic from the opposite side before attempting to overtake the vehicle that was in front of her. I find that the trial court was correct to find that the Appellant exercised poor judgment while overtaking as evidenced by the sudden manner in which the accident occurred. As such, it is my view that the prosecution proved the charge of dangerous driving against the Appellant to the required standard of beyond any reasonable doubt. In the persuasive decision in Amos Odhiambo Okoth v Republic (2020) eKLR as cited by the Respondent for a driver to overtake the road ahead must clear for the driver to drive on the right side of the road. From the defence of the appellant she admitted that the road was not clear for her to overtake. In such circumstances she was supposed to keep left as it was not to overtake. Her defence was a sham and was properly rejected by the trial court.

Whether The Charge Under Count Ii Was Defective, And If So, Whether The Same Prejudiced The Appellant So As To Make Her Conviction Unsafe 36. In Count II, the Appellant was charged with the offence of careless driving contrary to Section 49(1) of the Traffic Act. The statement of offence read:“careless driving contrary to section 49(1) of the Traffic Act Cap 403 laws of kenya"

37. . Section 49(1) of the Traffic Act however is worded as follows:“49. Driving without due care and attention(1)Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and liable—..."

38. It is evident that the statement of offence and particulars are at variance. What this implies is that the Appellant was charged with a non- existent offence under the Traffic Act. Further, the prosecution adduced evidence in proof of an offence that did not exist as the Act has no provision for the offence of careless driving. In this regard, it was submitted on behalf of the State that the ingredients of dangerous driving also apply in the offence of careless driving. Further, that it cannot be wished away that PW3 was indeed meted upon serious injuries in the same accident involving the deceased due to a legal technicality which did not in any way infringe on the accused person’s right as provided in Article 50(2) of the Constitution. That it would be an injustice to the victim in Count II for the Court to dismiss the same due to a legal technicality. In Henry O Edwin v Republic (CA) (2005) eKLR the Court of Appeal stated that –“it is trite law that an accused person must be charged with an offence that is known to law particularizing the charge enables the accused person to know the offence which he is charged with and the likely sentence that he would get if convicted. This is information that enables the accused person to adequately prepare his defence.”It is the law that creates an offence and its sanctions and the principle of the law governing charges and information is that an accused person must be charged with an offence which is known in law. It follows that if a person is charged with a none existent offence the charge is fatally defective.

39. In the persuasive case of Bernard Opiyo Ouma v Republic [2018] eKLR, the court, sitting as an appellate court, was faced with a similar situation as this and had the following to say:“19. While the substantial elements of the offence in question were not amended, I opine that the amendment to the statement spelling out the offence was occasioned by the fact that careless driving cannot be equated to driving without due care and attention as the element of careless driving involves a level of negligence that surpasses a failure to take due care and attention. This is informed by definition accorded to word “careless” in the Black’s Law Dictionary, 9th Ed. as an action or behavior engaged in without reasonable care comparable to being reckless. It also defines reckless conduct as much more than mere negligence and a gross deviation from what a reasonable person would do. In my view, the amendment was necessary because an offence with elements similar to the offence of careless driving is set out under Section 47 of the Act, namely reckless driving.

20. In view therefore, where one is deemed to be driving carelessly a charge cannot be brought under Section 49(1) of the Traffic Act but under Section 47 of the Act. It is a clear tenet that the charge must be supported by the elements of the offence charged. In this case, the charge of careless driving as was stated was not supported by the particulars of the offence. Needless to state then is that both Counts I and II were defective. The Applicant cannot be refereed back for a retrial as it would accord the prosecution the opportunity to fill up a gap in their case through amendment of the charge sheet. This would be prejudicial to the Applicant. "

40. Persuaded by the above authority, I am of inclined to concur with the Appellant that Count II of the charge sheet in this case was fatally defective.

On Sentence 41. As regard the sentence, this Court cannot interfere with the exercise of discretion by the trial magistrate’s court when sentencing the Appellant unless it is demonstrated that the trial court acted on wrong principles, ignored material factors, took into account irrelevant consideration,; or on the whole that the sentence is manifestly excessive. InAhmed Abolfathi Mohammed & another v Republic [2016] eKLR), the Court of Appeal as follows:“As what is challenged in this appeal regarding sentence is essentially the exercise of discretion, as a principle this Court will normally not interfere with exercise of discretion by the court appealed from.”

42. Similarly, in Bernard Kimani Gacheru V Republic [2002] eKLR, the Court of Appeal held as follows in this regard:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. (See also: Wanjema v Republic [1971] EA 493)”

43. The offence of causing death by dangerous driving under Section 46 of the Traffic Act carries a maximum, but not a mandatory, sentence of ten years imprisonment. In this case, the trial court imposed a fine of Kshs 150,000/= and in default, a one year imprisonment sentence. Section 46 states that a person convicted shall be liable to imprisonment for a term not exceeding ten years. Where the word liable appears, the court can exercise discretion to impose a fine.Under Section 66 (1) of the Interpretation and General Provisions Act provides:-“Where in a written law a penalty is prescribed for an offence under that written law, that provision shall unless a contrary intention appears, mean that the offence shall be punished by a penalty not exceeding the penalty prescribed.”The appellant was given an option of a fine. Section 26(2) & 3 of the Penal Code provides:-(2)“Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other shorter period may be sentenced to any shorter term.(3)A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution to imprisonment.”So where the term is liable appears or shall be liable to appears, they do not mean that the sentence is mandatory, they only prescribe the maximum sentence that the court may impose for the offence. Section 46 of the Traffic Act provides that a person shall be liable to imprisonment for a term not exceeding ten (10) years. It is not a mandatory sentence and the court exercises discretion depending the facts and circumstances of each case while bearing in mind the principles of proportionality, deterrence, mitigating and aggravating factors. The trial magistrate considered the mitigation, the seriousness of the charge, that appellant was remorseful and was a 1st offender.

44. In Govid Shamji v Republic (unreported) Criminal Appeal No30 of 1975 (Nairobi) Madan and Cheson JJ had this say about the principle of sentencing persons convicted of a traffic offence under Section 46 of the Traffic Act:“The offence of causing death by dangerous driving is not an ordinary type of crime. While it cannot be given an aura of protection by putting it in a glass case of its own, the people who commit this offence do not have a propensity for it, neither is it a type of crime committed for gain, revenge, lust or to emulate other criminals. In a case of causing death by dangerous driving, a custodial sentence does not necessarily serve the interests of justice as well as the interests of the public. There are of course cases where a custodial sentence is merited, for example, when there is a compelling feature such as an element of intoxication or recklessness.”

45. Considering that the Appellant was a first offender, and there were no aggravating factors that were brought to light, I am of the view that the exercise of discretion by the trial magistrate to impose a fine was proper in the circumstances and I will not interfere with the sentence imposed on the 1st count. I however note that there was none compliance with the second part of the sentence requiring cancellation of the driving licence.I find that considering the circumstances of this case the sentence is not harsh as submitted by the appellant as the appellant was given an option of a fine and in default one year imprisonment.

Conclusion: 46. For the reasons stated, I find that:-1. The appeal on the 1st count is without merits and is dismissed.2. I order that the driving licence of the appellant shall be cancelled and the appellant shall be disqualified from holding or obtaining a driving licence for three years from the date of conviction.3. On the second count the appeal succeeds as the charge sheet was defective. The conviction and sentence on the 2nd count is set side. The fine of 50,000/- (fifty thousand) paid by the appellant be reimbursed to her.

DATED, SIGNED AND DELIVERED AT MERU THIS 2NDDAY OF NOVEMBER 2023. L.W. GITARIJUDGE