[2010] KEHC 3910 (KLR)
The court found that the facts as presented by the prosecution did not establish that the appellant was driving recklessly, at a dangerous speed, or in a manner dangerous to the public. The mere statement that the accused did not manage to control the vehicle was insufficient to prove the offence of causing death by...
Source-derived case information.
- Citation
- [2010] KEHC 3910 (KLR)
- Parties
- Appellant: Mohammed Khan Kanif; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 124 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside; appellant set at liberty
- Legal Topics
- Dangerous Driving, Causing Death, Plea of Guilty, Ingredients of Offence, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammed Khan Kanif
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the facts presented by the prosecution disclosed the offence of causing death by dangerous driving.
- 2 Whether the sentence imposed was harsh and excessive.
Ratio Decidendi
The court found that the facts as presented by the prosecution did not establish that the appellant was driving recklessly, at a dangerous speed, or in a manner dangerous to the public. The mere statement that the accused did not manage to control the vehicle was insufficient to prove the offence of causing death by dangerous driving. The magistrate erred in convicting the appellant on a plea of guilty when the facts did not support the charge. Furthermore, as a first offender, the appellant should have been considered for a fine rather than a custodial sentence. The conviction was therefore quashed and the sentence set aside.
Court Disposition
appeal allowed; conviction quashed; sentence set aside; appellant set at liberty
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Appeal 124 of 2009
MOHAMMED KHAN KANIF...........................................................APPELLANT
~VRS~
REPUBLIC...................................................................................RESPONDENT
JUDGMENT
The accused person Mohammed Khan was charged and convicted of the offence of causing death by dangerous driving contrary to section 46 (1) of the Traffic Act. He was sentenced by Webuye Resident Magistrate to two (2) years imprisonment. The Appellant now appeals against the conviction and sentence.
Mr. Omukunda for the Appellant argued that the facts presented by the prosecutor after the Appellant pleaded guilty do not disclose an offence. The ingredients of the offence were not included in the facts. It is the Appellant’s contention that the sentence was harsh and excessive.
Mr. Onderi, Senior Principal State Counsel conceded to the appeal. He agreed that the facts did not disclose an offence and that the sentence was harsh and excessive.
On perusal of the facts, the prosecutor said:
“On reaching Bondeni area, a juvenile emerged from the right to cross to the left. The accused did not manage to control the vehicle. The juvenile was knocked and died. The accident was reported at Turbo Police Station which took action. The police blamed the accused for the accident and charged him with the offence. I produce the postmortem form.”
For an offence of causing death by dangerous driving, the prosecution must prove that:
a)the accused was driving recklessly; or
b)at a dangerous speed and
c)in a manner dangerous to the public.
The facts of the case do not make any attempt to explain how the accused was driving his vehicle at the material time. It was simply stated:
“The accused did not manage to control his vehicle.”
The statement does not blame the accused for driving recklessly or at a dangerous speed, or in a manner dangerous to the public. I am in agreement with the defence and the state that the prosecution did not prove the ingredients of the offence. The magistrate ought to have entered a plea of not guilty after taking the facts. The case would have gone for trial for the prosecution to prove the Appellant’s guilt if at all.
On sentence, the Appellant was a first offender and ought to have been given an option of fine. The sentence was therefore harsh and excessive. The appeal is therefore successful and is hereby allowed. I quash the conviction and set aside the sentence. The Appellant is thereby set at liberty unless otherwise lawfully held.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma this 16th day of February, 2010.
In the presence of the Appellant and the state counsel Mrs Leting.