[2022] KEHC 11704 (KLR)

Onyango v Republic (Criminal Appeal 33 of 2019) [2022] KEHC 11704 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11704 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal 33 of 2019

JN Kamau, J

May 17, 2022

Between

Andrew Otieno Onyango

Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment of Hon. R. Ndombi (RM) delivered at Kisumu in Chief Magistrate’s Court in Traffic Case No 100 of 2017 on 24th June 2019)

Judgment

Introduction 1. The appellant herein was charged with the offence of careless driving contrary to section 49(1) of the Traffic Act cap 403 (laws of Kenya). He was tried and convicted by Hon R Ndombi (RM) and sentenced to pay a fine of Kshs 20,000/= in default to serve six (6) months imprisonment. He paid the fine.

2. Being dissatisfied with the said judgement, on June 28, 2019, he lodged the appeal herein. His petition of appeal was dated June 26, 2019. He set out five (5) grounds of appeal.

3. His written submissions were dated November 10, 2021 and filed on November 22, 2021 while those of the respondent were dated February 8, 2022 and filed on February 9, 2022.

4. This Judgment is based on the said written submissions which both parties relied upon in their entirety.

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.

6. This was aptly stated in the case of Selle &anotherv Associated Motor Boat Co Ltd &others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.

7. Having looked at the appellant’s and state’s submissions, it appeared to this court that the issues that had been placed before it for determination were as follows:-a.Whether or not the charge was properly framed;b.Whether or not the prosecution had proved its case beyond reasonable doubt; andc.Whether or not, in the circumstances of this case the sentence meted upon the appellant by the trial court was lawful and or warranted.

8. The court dealt with the three (3) issues under the following distinct and separate heads.

I. Charge 9. Ground of appeal No (4) was dealt with under this head.

10. Notably, the Appellant did not submit on ground of appeal No (4) on duplicity of the charge sheet. In his written submissions, he only focused on burden of proof and the Notice of intended prosecution. The respondent only pointed out that the duplicity of the charge sheet was not fatal to the prosecution’s case.

11. As it was not clear if the appellant was still interested in pursuing the said ground of appeal, this court did not therefore find it necessary to analyse the said ground of appeal No (4).

II. Notice of Intended Prosecution 12. Ground of appeal No (1) was dealt with under this head.

13. The appellant invoked section 50 of the Traffic Act Cap 403(Laws of Kenya) which provides that for a person to be charged and convicted with a traffic offence, he/she must be cautioned about the intended prosecution and that it was upon the prosecution to demonstrate to the trial court that the instant case fell within the exceptions under section 50 of the Traffic Act.

14. It was his contention that the prosecution did not tender evidence to show that he was served with the notice of intended prosecution or demonstrate what made it impossible for the investigating officer to serve him with the said notice of intended prosecution.

15. In this regard, he placed reliance on the case of Mmbururu Kioga v Republic [1982] eKLR where the court quoted with approval the decision in Greene v R [1970] EA 62 where it was held that where there was failure to comply with the provisions of section 50, prosecution did not lie. He thus urged this court to quash his conviction and order that the fine paid be refunded to him.

16. The respondent was emphatic that the issue of notice of intended prosecution for traffic offences was just but a technicality which did not in any way interfere with the main charge.

17. Section 50 of the Traffic Act states that:-“Where a person is prosecuted for an offence under any of the section of this Act, other than section 46 (read causing death by dangerous driving or obstruction) relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving or to careless driving, he shall not be convicted unless;a.He was warned at the time the offence was committed the question of prosecuting him for an offence under some, one or other sections aforesaid would be considered; orb.Within 14 days of the commission of the offence a summons for the offence was served on him; orc.Within 14 days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence.”

18. The said section 50 of the Traffic Act, however, has a proviso that provides the following exceptions under sub rule 1. They are as follows:1. Failure to comply with this requirement shall not be a bar to the conviction of the accused in any case where the court is satisfied that:-a.neither the name and address of the accused nor the name and the registered address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time for a summons to be served or for a notice to be served or sent as aforesaid; orb.the accused by his own conduct contributed to the failure; andc.the requirement of this section shall in every case be deemed to have been complied with unless and until the contrary is proved.

19. While it was not the responsibility of an accused person to assist the prosecution in proving its cases, such accused person was obligated to raise all issues to rebut the prosecution’s case during trial. In this case, the appellant was obligated to raise and prove the fact that he was not served with a notice of intention to prosecute him of the traffic offence. The trial court could then have rendered a decision on the same, a decision that would have been appealable to this court. He was ably represented at the trial by counsel but did not raise this issue during his examination-in-chief or while cross-examining the investigating officer. He did not also tender evidence that the police did not comply with the cited provisions of the law. It was not enough for him to have submitted that the issue of non-compliance was uncontested. He was bound by law to prove that he was not served with the notice of intended prosecution as it is trite law that he who alleges must prove.

20. In the absence of any proof to the contrary, this court therefore deemed the requirements of section 50 of the Traffic Act to have been complied with as there was nothing to demonstrate that the trial court ought not to have relied on the proviso to section 50 of the Traffic Act.

21. In the premises, grounds of appeal Nos (1) of the petition of appeal was not merited and the same be and is hereby dismissed.

III. Proof Of Prosecution’s Case 22. Grounds of appeal Nos (2), (3) and (5) of the petition of appeal were dealt with together under this head as they were all related.

23. The appellant submitted that an accused person was presumed innocent until proven otherwise as was set out in article 50(1)(a) of theConstitution of Kenya, 2010 and held in the case of Supreme Court of Canada in R v Lifchus [1997]3 SCR 320.

24. He also relied on the case of Festus Mukati Murawa [2013]eKLR where the Court of Appeal quoted with approval the English decision of Woolmington v DPP (1935) AC 462 where it was stated that it was the duty of the prosecution to prove an accused’s person’s guilt subject to the qualification involving the defense of insanity and to any statutory exception.

25. He reproduced the witnesses’ testimony before the trial court and argued that the trial court did not capture what No 75927 PC Jackons Rono (hereinafter referred to as “PW 7”) stated during cross-examination in its decision which pointed to the fact that the Trial Court did not analyse or assess the evidence as was required but merely glossed over the evidence thus coming to a wrong conclusion.

26. He argued that the trial court’s holding that the issue of the notice of intended prosecution was first mentioned in the submissions in respect of whether he had a case to answer or not and was therefore an afterthought and a technicality that did not go into the case, amounted to shifting both the burden and incidence of proof to him which was against the law.

27. He was categorical that the burden of proof under sections 107 and 109 of the Evidence Act remained with the prosecution throughout the trial. In this regard, he relied on the case of Ian Gakoi Maina & others v Republic[2021] eKLR where the Court of Appeal held that the burden of proving a criminal charge beyond reasonable doubt resides with the prosecution throughout the trial and never shifts. He was emphatic that the trial in the instant case did not fall within the brackets of cases under Section 111 of the Evidence Act cap 80(Laws of Kenya).

28. On its part, the respondent submitted that the prosecution proved its case against him beyond reasonable doubt and that there were no inconsistencies. It was its contention that all the ingredients of the offence were proved. It pointed out that the defense given by the appellant at the trial court did not raise reasonable doubt to his guilt as it was an afterthought.

29. The prosecution’s case was that on January 5, 2017 at about 1000hrs along Agakhan Walk at Junction with Jalaram in Kisumu District within Kisumu County, the appellant herein drove KBX 517H Toyota Premio (hereinafter referred to as “the subject motor vehicle”) without due care and attention and upon losing control, he veered off the road and rammed into a tree stump and knocked one Bruffin David Sande aged one (1) year and Samuel Omondi Mireri (hereinafter referred to as “PW 1”) who sustained injuries. Sande Elvis Anzaya (hereinafter referred to as “PW 4”) also sustained injuries arising out of the accident.

30. Martin Sande Techera (hereinafter referred to as “PW 2”), the grandfather to the said Bruffin David Sande, testified that he rushed to the scene upon being informed that his grandson had been injured. He confirmed having seen the subject motor vehicle at the scene.

31. In his unsworn evidence, the appellant testified that on the material day, he received a call and was informed that a vehicle belonging to his father had been involved in an accident. He stated that he was following up the matter because it was a family vehicle. He asserted that on reaching the scene, the police towed the vehicle to the police station. He denied driving the subject motor vehicle on the material day.

32. Having analysed the evidence that was adduced during trial, this court found and held that the appellant’s evidence that he was called to attend to his father’s car and that he was not the driver of the subject motor vehicle on the material day was a mere denial. His evidence had little or no probative value as the same was unsworn and not subjected to cross-examination to test its veracity or otherwise.

33. The evidence that was adduced by the prosecution witnesses pointed to him as having been the driver of the subject motor vehicle at the material time of the accident. Indeed, PW 4 testified having seen the driver of the subject motor vehicle, who he identified as the appellant herein, alighting from the driver’s side of the said subject motor vehicle. Further, PW 7 testified that when he arrived at the scene of the accident, he found the appellant at the scene. This court was satisfied that the prosecution has adduced sufficient evidence that showed that the appellant was the driver of the subject motor vehicle at the material time.

34. Going further, evidence was adduced to show that upon the said subject motor vehicle being inspected, it was found not to have had any pre-accident defects. The Motor Vehicle Inspector, Kisumu Stephen Kipsang Cheboiwo (hereinafter referred to as “PW 6”) tendered in evidence, the motor vehicle inspection report indicating that the motor inspection was done on the same day of the accident and that the subject motor vehicle was damaged.

35. The Clinical Officer at Kisumu County Hospital, Phillip C Kilimo (hereinafter referred to as “PW 5”) testified that the said Bruffin David Sande sustained a swollen face, bruises, abrasions on the right cheeks, a fracture of the mandible, loss of 1st and 2nd incisor teeth, displacement of the right incisor tooth, depressed fracture of the right parietal bone of the head and weakness on the lower limbs as a result of the accident.

36. The fact that the subject motor vehicle’s air bag had blown out, air condition and coolant radiator had twisted, rear windscreen had shattered, front bumper had cracked, front wheels panels had bent, stone card was detached and the front reflectors were smashed and the fact that PW 5 classified the injuries the said Bruffin David Sande sustained as “grievous harm” was evidence that the appellant drove the subject motor vehicle at an excessive speed in a built up area which was evidence of careless driving.

37. Accordingly, having weighed the appellant’s unsworn evidence against the sworn evidence of the prosecution witnesses, this court was satisfied that the extensive damage to the said subject motor vehicle and the serious injuries that the said Bruffin David Sande was sufficient proof that the prosecution proved its case beyond reasonable doubt and hence the trial court did not err when it convicted the appellant for the offence of careless driving contrary to section 49(1) of the Traffic Act.

38. On the issue of whether or not the trial court captured PW 7’s evidence correctly, this court perused the proceedings and noted that the trial court set out the evidence he tendered during cross-examination as follows:-“I found the accused at the scene but not in the car. The accused was the driver ….”

39. In its judgment, it stated as follows:-“In cross-examination, PW 7 stated that he found the accused person at the scene but not I (sic) the car and that he was alone.”

40. It was therefore not correct as the appellant had asserted that the trial court had captured PW 7 ‘s evidence differently, a demonstration that it merely glossed over the evidence. In both the proceedings and the judgment, the trial court was consistent that the appellant was not in the subject motor vehicle but was at the scene of the accident. The appellant’s assertions that the trial court did not analyse his evidence thus fell by the wayside.

41. In the premises foregoing, grounds of appeal Nos (2), (3) and (5) were not merited and the same be and are hereby dismissed.

IV. Sentence 42. The appellant urged the court to order that the fine he paid be refunded to him. On the other hand, the respondent was emphatic that the sentence that was imposed on him was lawful and commensurate with the offence and thus urged the court to uphold the same.

43. Section 49(1)(a) of the Traffic Act provides that:-“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-a.for a first offence, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings.”

44. Having found that the trial court did not err in having found that the prosecution proved its case beyond reasonable doubt, this court determined that the sentence that was imposed upon the appellant was lawful and did not warrant any interference.

Disposition 45. For the foregoing reasons, the upshot of this court’s decision was that the appellant’s petition of appeal lodged on June 28, 2019 was not merited and the same be and is hereby dismissed. The conviction and sentence be and are hereby upheld as it was safe to do so.

46. It is so ordered.

DATED AND DELIVERED AT KISUMU THIS 17TH DAY OF MAY 2022J KAMAUJUDGE