[2022] KEHC 10034 (KLR)

Njogu v Republic (Criminal Appeal 20 of 2019) [2022] KEHC 10034 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10034 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal 20 of 2019

RM Mwongo, J

May 12, 2022

Between

Alex Gichobi Njogu

Appellant

and

Republic

Respondent

(From original conviction and sentence in Traffic case No. 191 of 2016 of the Chief Magistrate’s court at Kerugoya)

Judgment

Introduction and Background of the Case 1. The brief background of the case is as follows. That on the February 9, 2016 at about 7. 30 hours at Bekam Hotel along Kerugoya-Kutus road in Kirinyaga county being the driver of motor vehicle registration number KBE 338M Toyota matatu, the accused drove the said matatu along the said road in a manner which was reckless 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 usually expected to be on the road. That he obstructed by blocking a motor vehicle registration number KCD 493R Toyota Shark matatu causing the death of Alex Muthee Nyaga who was a passenger in the said Matatu.

2. The accused was charged with two counts of the offence of causing death by reckless driving contrary to Section 46 (1) of the Traffic Act cap 403 Laws of Kenya. Upon conviction he was sentenced to three years imprisonment for each count. The sentences were adjudged concurrent.

3. Dissatisfied with both the conviction and sentence he filed this appeal, amended on April 29, 2019. His appeal raises several grounds summarized as follows:1. That the trial magistrate erred in finding that a prima facie case was established.2. That the trial magistrate failed to consider the appellant’s defense.3. That the trial magistrate convicted him on uncorroborated evidence.

4. The State opposed the appeal.

5. The appeal was disposed of by written submissions, which were filed as directed by the court.

6. It is now well settled jurisprudence that the duty of this court as a first appellate court is to re-evaluate and review all the evidence on record in the lower court and to reach its own conclusions. In so doing, the court must be careful to take into account that it did not itself hear and see the witnesses or have opportunity to view their demeanour.

7. This was held in the classical case of 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 vs. 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 Vs. 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 vs. Sunday Post [1958] E.A 424. ”

Parties’ cases 8. The appellant argued his grounds together. He submitted that the learned magistrate erred in failing to appreciate that nobody saw the motor vehicle KBE 338 M block motor vehicle KCD 493R. He argued that the evidence of PW3 and PW4 which was relied heavily upon by the trial court does not confirm that the appellant committed the offences for the reasons that: as regards the testimony adduced, PW3 testified that she had learnt of the registration number of KBE 338M later; that she did not see the said vehicle after the accident; and that the person who told her of the said vehicle was not called to give evidence. As regards PW4’s testimony, he also said he knew of the registration number of KBE 338M later though there was a vehicle that blocked him.

9. It was further argued that PW4 stated that the vehicle that blocked them did not have passengers but touts; and that it was impossible for the witness to know this unless he had prior knowledge of the passengers.

10. In addition, the appellant argued that both PW3 & PW4 testified that there were other Nissan matatus along the road and there is no clear evidence that it was not any of those other matatus that were responsible for the accident. He added that the evidence of PW3 that the matatu they were in “was racing not to be overtaken” is an indication that vehicle KCD 493R was recklessly driven, and possibly responsible for the accident.

11. Further, the appellant submitted that the passengers who died were all in vehicle KCD 492E and it is that vehicle which should have been held responsible for the offences. He asserts that the failure to call the driver of motor vehicle KCD 493 R to testify as to what he saw when he was blocked and the accident occurred, was an indication that the prosecution were aware that his evidence would have been detrimental to their case .

12. Finally, Counsel submitted that in any event a custodial sentence was not merited. On this, he cited the cases of Govid Shamji v. Republic (unreported) Criminal Appeal No.30 of 1975 (Nairobi), Amos Mwengea Mutua v R [2015]eKLR and Robert Wanjala Shiundu v R [2018 eKLR. These cases held that the offence of causing death by dangerous driving is not an ordinary type of crime as the people who commit it cannot be said to have a propensity for it, and thus that a custodial sentence does not serve the interest of justice or the public interest.

13. The respondent submitted that the offence of causing death by dangerous driving under sec 46(1) Traffic Act was proved by the state. The prosecution stated that it was proved that the appellant was indeed the driver of Motor Vehicle KBE 338M on the material day and date. Further, that the appellant drove the said motor vehicle recklessly on a Public road.

14. The prosecution placed heavy reliance on the evidence of PW3 (Sarah Njeri Mugo) and PW4 (John Kinyua Muriithi) both of whom testified that they witnessed the Appellant blocking the road by parking vehicle KBE 338M across the road causing Motor Vehicle Registration Number KCD 493R swerve and loss control.

15. PW3 testified that she was in motor vehicle KCD 493R and witnessed KBE 338M that blocked the motor vehicle they were aboard, occasioning it to swerve to avoid hitting it and rolled three times and was badly injured. She added that she learnt of the registration number later, but was not able to see the driver. During cross-examination she stated that she did not witness the vehicle that blocked them after the accident. She says she came to learn the identity of the vehicle through other persons The persons who told her were never brought to court to confirm if it was true that they saw vehicle KBE 338 M block vehicle KCD 493 R.

16. PW4 testified that he was a passenger in motor vehicle KCD 493R and demonstrated to the trial Court how motor vehicle KBE 338M blocked their way and by trying to avoid slamminq into it swerved and lost control and he was injured but one person died. He further stated that there was a vehicle that blocked them, though he came to learn about motor vehicle registration number KBE 338 M later.

17. The evidence of PW6 who was the base commander was that the driver of Motor Vehicle KCD 493R was blocked. It was her testimony that she found the Vehicle Registration Number KCD 493R in the middle of the road facing the opposite direction and blamed the driver of Motor Vehicle KBE 338M that was driven by the appellant.

Analysis and Determination Whether there was a Prima Facie Case 18. I have carefully considered and reviewed the evidence on record. I understand the kernal complaint of the appellant to be that no witness gave direct testimony that they saw and recognized the appellant’s vehicle registration number KBE 338M, with the appellant driving it, actually cause the accident. The appellant argues that the two eyewitnesses saw a vehicle block the vehicle they were in. However, that they were neither unable to immediately ascertain the vehicle registration number, nor did they see the appellant driving it at the moment of impact.

19. The implication is that: in the absence of an eyewitness to testify to having seen the appellant driving the vehicle at the moment of impact, and in light of the fact that the state did not call the driver of the Vehicle KCD 493R to testify as to which vehicle blocked him, there was no basis on which the trial court could find a prima facie case, and thus put the appellant on his defence.

20. There is no dearth of jurisprudence on what constitutes a prima facie case. A trial court, at the stage of the close of the prosecution case, must determine whether a prima facie case has been established by the evidence adduced to justify the accused to be put on his defence.

21. What is a prima facie case has been defined in several authorities: In the case of Ramanlal Trambaklal Bhatt v Republic (1957) EA 332 prima facie case was defined as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot argue that a prima facie case is merely one which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court could not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case, nor can we argue that the question whether there is a case to answer depends only on whether there is “some evidence irrespective of its credibility or weight sufficient to put the accused on his defence.”A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence… It may not be easy to define what is meant by prima facie case but at least it must mean one on which a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.” (Emphasis added)

22. In Republic v Jagjivan M. Patel & others (1) TLR it was held as follows:-“All the court has to decide at the close of evidence of the charge is whether a case is made out against the accused just sufficiently to require him to make a defence, it may be a strong case or it may be a weak case. The court is not required at this stage to apply its mind in deciding finally whether the evidence is worthy of credit or whether, if believed, it is weighty enough to prove the case conclusively, beyond reasonable doubt. A ruling that there is a case to answer would be justified, in my opinion, in a borderline case where the court, though not satisfied as to conclusiveness of the prosecution evidence, is yet of opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction.” (Emphasis added)

23. In the case of RepublicvSamuel Karanja Kiria CR. Case No.13 of 2004 Nairobi [2009] eKLR, Ojwang,J (as he then was) said of a prima facie case:“The question at this stage is not whether or not the accused is guilty as charged but whether there is such cogent evidence of his connection with the circumstances in which the killing of the deceased occurred, that the concept of prima facie case dictates as a matter of law that an opportunity be created by this court for the accused to state his own case regarding the killing. The governing law on this point is well settled . . .The Court of Appeal in Criminal Appeal No. 77 of 2006, expressed that too detailed analysis of evidence, at no case to answer stage is undesirable if the court is going to put the accused onto his defence as too much details in the trial court’s ruling could then compromise the evidentiary quality of the defence to be mounted.” (Emphasis added).

24. Taking the above description of prima facie case into account, I do not think that the trial court misdirected itself when it determined that the appellant had to be put on his defence. Two eyewitnesses credibly alleged that they saw the accused’s vehicle block the vehicle they were in causing it to swerve.

25. This was corroborated by the evidence of PW6, the Kerugoya Police Base Commander who visited the scene. He found the vehicle KCD 493R at the accident scene, and heard passengers state that the other matatu had blocked it as they raced to pick passengers.

26. I have also perused the proceedings. The appellant was represented by counsel. The state closed its case after PW6 testified. Defence counsel indicated he would not submit on no case to answer. The prosecution later realized they needed to re-open their case to avail medical evidence as to the deceased’s death. After that evidence was given and the prosecution closed on 17/12/2018, the defence counsel again stated:“We do not wish to make any submissions. We will go by your ruling””

27. In the English case of May v O’Sullivan [1955] 92 CLR 654 it was stated as follows:“When at the close of the case for the prosecution a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is a really question of law.”

28. Thus the trial court did not have the benefit of counsel’s submissions against a finding of a case to answer. With the available evidence, the trial magistrate correctly in my view, and without going into detail on the evidence, simply stated on 14/1/2019:“There is a case to answer”.

29. I do not see anything that persuades me that the trial court misdirected itself in making that finding. There was a reasonable amount of evidence of reckless driving; the case against the accused may have been strong or weak, or borderline. The learned magistrate was properly within his mandate even if the trial court had not been:“… satisfied as to conclusiveness of the prosecution evidence, [but] is yet of the opinion that the case made out is one which on full consideration might possibly be thought sufficient to sustain a conviction” (R v Jagvijan M Patel [supra]).

30. Accordingly, on this ground, the appeal fails.

Whether the prosecution proved the case beyond reasonable doubt 31. The appellant argued that the burden of proof in criminal cases is very high; that it cannot take for granted that indeed the 2 passengers PW3 and PW4 who say were in motor vehicle KCD 493 R did not see the vehicle registration number of the vehicle that blocked them. They also said the vehicle that blocked them was driving at a high speed the vehicle they were in. in addition, they also said the vehicle that blocked them disappeared after the accident. As such there was no way for them to know the vehicle that blocked them yet both vehicles were at a high speed.

32. The appellant also submitted that the trial magistrate ignored the appellant’s defense that he was never at the scene of the accident; that he did not block the vehicle KCD 493 or ferry in his vehicle the passengers that died.

33. It was the appellant’s case that the prosecution’s failure to call the driver of KCD 493 R to testify and clarify if truly his vehicle was blocked, without explaining his absence, could only mean that the driver’s evidence was adverse to their case.

34. The State in its submissions did not respond to the charge as to the failure to call the driver. It focused on the issue that there was a prima facie case established; that two eyewitnesses (PW3 and PW4) testified to having seen the accident and that they corroborated one another; that the witnesses saw the matatu vehicle KBE 338M block the matatu they were in; and that the appellant’s defence was weak.

35. The trial court, being satisfied that there was a case to answer, the defence evidence was taken. The accused testified that he was the driver of KBE 338M; that he plies the Kerugoya-Thika-Nyeri-Embu route; that on the material day, 9/2/2016 he started work at 7. 20am. That he drove towards Kutus and while there was asked if he had heard about an accident; he said he had not; that the following morning he was told to take his vehicle to Kerugoya Police station; that at the station he was informed he had hit another vehicle; that his vehicle was taken for inspection and that he was later charged.

36. In cross examination he admitted he was driving on Kerugoya -Kutus road; that Vehicle KCD 493 was ahead of him at the stadium, and that he passed it at the entrance to Baricho. He denied blocking vehicle KCD or warning its driver not to ferry passengers. He said he did not witness the accident.

37. The trial court assessed the defence evidence. In paragraph 7 of his judgment, the learned magistrate said he disbelieved the evidence in light of the forthright evidence of PW3 and PW4. He dismissed the defence evidence as a mere denial.

38. Section 46 of the Traffic Act 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.

39. It is not in issue whether there was an accident or whether it resulted in death. The only question is whether the appellant was responsible. Was the evidence availed satisfy the standard of proof beyond reasonable doubt?

40. Sections 107 – 109 of the Evidence Act (Cap 80 of the Laws of Kenya) are clear that the burden of proof lies on the prosecution throughout the trial to lead evidence that points to the guilt of the accused person beyond reasonable doubt unless there is statutory provision that shift that burden to the accused, or unless the accused has admitted, un-equivocably, that he committed the offence for which he is charged.

41. In the case of Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR the court stated:“…as to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as follows in a passage alluded to me considered the greatest jurist of our time Lord Denning:“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”(Emphasis added).

42. The accused/appellant admitted that he drove behind the KBE 338M. It was along Kerugoya – Kutus road. He said he started work at 7. 20am. The prosecution evidence was that the accident occurred about 7,30 am. He said that at the satadium he was behind Vehicle KCD 493R, and overtook it at the Baricho junction.

43. Whilst PW3 and PW4 as passengers in KCD 493R say they saw the appellants vehicle, in cross examination they could not specifically attribute the accident impact to it. But they were clear that the vehicles were racing for passengers.

44. So, although in my view there is no proof beyond a shadow of a doubt that the accident was caused by the appellant’s vehicle blocking vehicle KCD 493R, the prosecution evidence carried a sufficiently high degree of probability that the appellant’s vehicle was involved in the accident.

45. I therefore find that the trial magistrate was entitled to reach the conclusions he reached to convict on the evidence available. This ground of appeal fails.

Sentence 46. The final issue concerns the question as to the propriety of the sentence imposed. The appellant submitted that the trial magistrate erred in sentencing the appellant to a custodial sentence without the option of fine.

47. The prosecution cited Ngure v Republic2003 (EA) as authority that causing death by reckless driving involved the disclosure of evidence that a dangerous situation had been created by the accused which was a departure from the normal standard of driving, and warranted strict sentence.

48. I agree with the appellant.

49. In Orwenyo Missiani v Republic[1976 – 80] 1KLR 1446 at page 1453, the court cited the decision of Madan and Chesoni JJ (as they were) in Govid Shamji v Republic Republic (unreported) Criminal Appeal No.30 of 1975 (Nairobi) where it was poignantly stated:“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 class 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 interest of justice as well as the interest of public”

50. The appellant submitted that the custodial sentence was not merited. He also argued that Section 46 (1) does not exist in the Traffic Act cap 403. I find, on the latter point, that the lower court addressed itself to this anomaly and found that the appellant was not prejudiced in any way.

51. The appellant was charged with two counts of the offence of causing death by reckless driving contrary to Section 46 (1) of the Traffic Act, and convicted on both. In mitigation, the appellant said that he was 30 years old; he had a young family and was the sole breadwinner. He prayed for a non-custodial sentence. The court noted the mitigation and concluded that the action taken by the accused was reckless and called for a custodial sentence. He was sentenced to serve 3 years in prison on each count, with the terms running concurrently.

52. On sentence, the case of Samuel Karanja Kimani v Republic[2016] eKLR is relevant where the court stated:“On sentence, the Appellant is on firmer ground. It was clear to this court that the trial court erred when it sentenced the Appellant to serve a custodial sentence without an option of fine. In traffic cases, unless the prosecution establishes an element of extreme carelessness or recklessness that clearly shows that the driver of motor vehicle did not have any regard to the safety of other road users, then a person convicted for any traffic offence should be given an option of a fine or other sentence apart from custodial sentence.

53. Since, the appellant was aged 30 years at sentencing, and a first offender with a young family, I think the court ought to have considered a non-custodial sentence. In the case of Genesio Kariithi Wambu v Republic [2018]eKLR the appellant Genesio Kariithi Wambu was charged with two counts of causing death by dangerous driving contrary to Section 46(1) of the Traffic Act cap 403 Laws of Kenya in Traffic Case No. 520/15 before S.R.M Kerugoya Court. The high Court held:“The appellant will pay a fine of Kshs 100,000/- on each count or in default serve one year imprisonment on each count. Since he has already served one year in prison, he will pay the fine on the 2nd count only and in default one year in prison. The time served to be taken as the default sentence on the 1st count. The order suspending the driving licence for a period of 3 years reduced to two (2) years.

54. I think that a fine of Kshs 150,000 on each count or in default, that he serve one year imprisonment on each count, would have been sufficient.

Disposal 55. Ultimately, in light of all the foregoing, the appeal on conviction fails, and is dismissed.

56. The appeal on sentence succeeds, and the sentence is substituted with a fine of Kshs 150,000/- on each count, or in default a sentence of one (1) year imprisonment on each count, to run concurrently.

57. The appellant’s surety may be discharged upon confirmation by the Deputy Registrar that the fines have been paid.

58. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 12TH DAY OF MAY, 2022R MWONGOJUDGEDelivered in the presence of:Makazi for the AppellantMamba for the Respondent/StateMr. Murage, Court Assistant