[2022] KEHC 14534 (KLR)

Nzuki & another v Republic & another (Criminal Appeal E077 of 2021) [2022] KEHC 14534 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14534 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E077 of 2021

GMA Dulu & GMA Dulu, JJ

October 19, 2022

Between

Justus Mutua Nzuki

1st Appellant

Justus Mutua Nzuki

2nd Appellant

and

Republic

1st Respondent

Republic

2nd Respondent

(Being an appeal from the original conviction and sentence of Hon. E.M Muiru in Kilungu Principal Magistrate’s Court (TR) Case No.670 of 2017 pronounced on 30th July, 2021)

Judgment

1. The appellant was charged in the magistrate’s court for causing death by dangerous driving contrary to section 46 of the Traffic Act(cap 403) Laws of Kenya.

2. The particulars of offence were that on December 23, 2017at about 0900 hours along Nairobi – Mombasa Highway at Kalimbi area in Mukaa Sub-County of Makueni County, being the driver of motor Vehicle Registration No KBW 553K/ZE 1936 Mercedes Benz, did drive the said motor vehicle on the said road recklessly or at a speed or in a manner which is dangerous to the public having regard to all the circumstances of the case including the nature , condition and the use of the road and the amount of traffic which is actually at the time on which might reasonably be expected to be on the road, failed to keep to his proper lane, had head on collision, with motor vehicle registration No KBB 295B Toyota Hiace and caused death of Joseph Obel Obadi.

3. Under count II, he was charged with causing the death of Charles Wathala Onyango.

4. Under count III, he was charged with causing the death of Charles Osama

5. Under count IV, he was charged with causing the death of Alfred Owino.

6. Under count V, he was charged with causing the death of Alice Owino Osango.

7. Under count VI, he was charged with causing the death of Angelina Okello.

8. Under count VII he was charged with causing the death of Roselida Wathala.

9. Under count VIII, he was charged with failing to report an accident contrary to section 73(1) of the Traffic Act, the particulars of which being he had a head on collision on the above date and place between the two above mentioned motor vehicles causing the death of seven (7) people and failed to report the accident to any police station in Kenya within 24 hours.

10. He denied on the charges after a full trial, he was convicted on the seven (7) counts of causing death by dangerous driving contrary to section 46 of the Traffic Act. He was sentenced to pay a fine of Kshs. 100,000/= in each of the seven (7) countsand in default to serve one(1) year imprisonment on each. He was acquitted for the offence of failing to report a traffic accident to the police.

11. Dissatisfied with the conviction and sentence, the appellant has come to this court on appeal, through counsel Musyoka and associate advocates, on the following grounds.i.The learned magistrate erred in law and fact in making a decision that was not supported by evidence and making a judgment which was not properly reasoned.ii.The learned magistrate erred in law and fact in meeting a harsh and punitive sentence, taking into account that the accused was a first offender.iii.The threshold for the burden of proof in criminal cases, beyond reasonable doubt was not met.iv.The learned magistrate erred in law and fact in ignoring the expert evidence adduced by the motor vehicle inspector during trial.v.The learned magistrate erred in law and in fact in ignoring the evidence adduced by the investigating officer during trial.vi.The learned magistrate erred in law and in fact in ignoring evidence adduced by the accused person and only paid up service to defence of the accused.

12. The appeal was canvassed through filing of written submission. In this regard, I have perused and considered thesubmission filed by the appellant’s counsel Musyoka & Associates, as well as the submissions filed by the Director of Public Prosecutions. Both sides relied on decided court cases.

13. This being a first appeal, I am required to evaluate all the evidence on record a fresh and come to my own independent conclusion and inferences see Okeno v Republic(1972)EA 32.

14. I have re-conducted the evidence on record. In proving their case, the prosecution called three (3) witnesses. The appellant on his part tendered an unsworn defence testimony and did not call additional witnesses.

15. The burden is always or the prosecution in all criminal cases to prove their case against an accused person beyond any reasonable doubt. An accused person has no burden to prove his or her innocence.

16. It is equally true that the mere occurrence of a traffic accident alone is not proof of the offence of causing death by dangerous driving as evidence must be tendered to disclose the 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. See Ngure v Republic[2003] EA. In particular, in the case of Atito v Republic(1975) E.A 281, the Court of Appeal stated that - “ to justify a conviction for the offence of causing death by dangerous driving there must not onlybe a situation which viewed objectively was dangerous but there must also be some fault on the part of the driver causing that situation”.

17. The evidence of the prosecution is herein is that of the single eye witness to the incident, Pw1 Limus Kaingwa Maina the driver of the fateful vehicle KBB 295B, in which a number of people died due to the accident, but the driver (Pw1) survived. He stated in evidence that he was on his left side of the road driving from Nairobi towards Mombasa direction, when a trailer tanker suddenly tried to overtake a line of other trailer leading to the head on collision.

18. In the defence side, the appellant (Dw1)who was the driver of the trailer KBW 553K/ZE 1936, was the eye witness, whose sworn defence testimony was that Pw1 drove to his side of the road, on which the accident thus occurred. He denied trying to overtake other vehicles. It was thus the evidence of one eye witness against the other.

19. From the sketch plan produced in court as P. exhibit 5(a) by Pw3 PC Galgalo Abdi however, it is clear that the road where the incident occurred was a straight wide road. It is also clear that the point of impact where the incident occurred was on the correct side, the left hand side of the driver of KBB 295B, who was Pw1. The brake marks of the trailer also have a starting point on the correct side of KBB 295B. It cannot thus be said that the appellant, who was the trailer driver was truthful in his defence testimony.

20. In my view, the appellant who was the driver of KBW 553K/ZE 1936, having moved out of his lane, to the lane where the other driver had a right of way, had a duty to take all precautions to avoid causing the accident as he was not on his side of the road.

21. From the evidence on record, the appellant fell short of what was expected of a careful driver in that he did not check to see if it was clear before moving to the other lane to overtake, and secondly when he saw the other vehicle which was in its correct side, he did not take appropriate action to avoid the accident knowing truly well that the other driver had a right of way. His conduct thus amounted to dangerous driving, which caused the deaths herein, the subject of the charges.

22. Thus in my view, the argument by the appellant that the trial magistrate did not bother to understand the evidence on record, and that the magistrate treated his defence casually, is not supported by the record. I will thus uphold the conviction.

23. With regard to sentence, section 46 of the Traffic Act prescribes a prison sentence not exceeding 20 years, and the trial court also has power to cancel a driving licence. The learned trial magistrate, in the present case, imposed a fine of Kshs. 100,000/= in respect of each of the seven counts, and in default 1 year imprisonment. In my view, the sentence imposed is not excessive. In my view the magistrate properly applied the provisions of section 28 and 37 of the Penal Code. I will thus uphold the sentence imposed.

24. Consequently, and for the above reasons, I dismiss the appeal and uphold both the conviction and sentence imposed by the trial court.Right of appeal explained.

Dated, signed and delivered this 19thday of October 2022, in open court at Makueni....................George DuluJudge