[2017] KEHC 585 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CRIMINAL APPEAL NO.2 OF 2013

PHILEMON KIBET KOSKEI.................APPELLANT

VERSUS

REPUBLIC...........................................RESPONDENT

JUDGMENT

1. The appellant was charged with the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act, Cap 403 Laws of Kenya. The particulars of the offence as set out in the charge sheet were that “on the 9th day of January 2012, at around 7. 00 a.m. at Ngoina along Litein-Kericho road in Bureti District of the Rift Valley Province being the driver of motor vehicle registration number KBM 859B Toyota Hilux Pickup did drive the said vehicle on the said public (road) at a speed or in a manner which was dangerous to the public having regard to all circumstances of the case including the nature condition and the use of the road and the amount of traffic which was actually at the time or which might be reasonably expected to be and caused the death of one Amos Kipkoech Ngetich.”

2. When the appellant first appeared before the Senior Principal Magistrate in Sotik on 3rd February 2012, he pleaded guilty to the charge, and the matter was adjourned to the 6th of February 2012 for reading of facts and sentencing. On that date, however, he changed his plea and pleaded not guilty to the offence. He was tried before the said court and was found guilty of the offence in the judgment of the Ag. Principal Magistrate, M.O. Okuche, dated 5th December 2012. He was sentenced to serve a prison term of 5 years, and his licence was cancelled for a period of five years.

3. Dissatisfied with both his conviction and sentence, the appellant filed a petition of appeal dated 21st January 2013 raising some 8 grounds of appeal. However, his Counsel on record, Mr. Oboso, filed supplementary grounds of appeal dated 9th May 2017 in which he raised the following two grounds:

1. That the learned trial magistrate erred in fact and law in convicting the appellant when the charge was defective for duplicity.

2. That the learned trial magistrate erred in fact and law by failing to observe that section 197 and 198 were not complied with.

4. The appeal was argued before me on 23rd May 2017. Mr. Oboso appeared for the appellant while Mr. Mutai appeared for the state. Mr. Oboso relied on the supplementary grounds of appeal in presenting the appellant’s case. He did not address himself to the grounds dated 21st January 2013 initially filed by the appellant, and so they are deemed to have been abandoned.

5. In his submissions on behalf of the appellant, Mr. Oboso contended that the charge sheet against the appellant was defective for duplicity. That the accused was charged with two separate offences in the same count, instead of separating them into two counts. Counsel relied on the decision in Nzioka vs R (1987) KLR 613in which Torgbor J observed that section 46 of the Traffic Act creates at least 4 offences by use of the word “or”. Counsel argued that in the present case, the appellant was charged under the said section 46. In the particulars of the offence, it is indicated that he drove the said vehicle at a speed or manner that was dangerous to the public.

6. Mr. Oboso argued that in framing the charge as it did, the prosecution made the charge duplex and caused an injustice to the appellant as he was not able, being a lay person, to discern the charge he was facing and prepare his defence accordingly. Mr. Oboso submitted therefore that this is a violation of Article 50 (2) (b) of the Constitution, placing reliance for this submission on the case of Josephat Shikuku vs R (2010) eKLR. Counsel urged the court, should it find that the charge was duplex, to allow the appeal. He relied on the decision in Amos Nyandoha Otaha & Another vs R (2015) eKLRfor this submission.

7. The appellant’s second ground of appeal is that the trial magistrate erred in fact and law in not complying with section 197 and 198 of the Criminal Procedure Code (CPC). Section 198 (1) requires that evidence should be interpreted to the accused in a language that he understands. Mr. Oboso submitted that from the typed proceedings of the lower court, it was evident that when the trial court took the appellant’s plea on 6th February 2012, there was an interpreter present for English/Kiswahili/Kipsigis. However, thereafter, there is nowhere in the proceedings where the presence of an interpreter is indicated.

8. According to Mr. Oboso, PW4, Richard Kipkemoi Koech, was the only one who used English and he was the material witness as he was in the vehicle that the appellant was driving. He submitted that there was no interpretation from English to Kiswahili or Kipsigis, and the appellant did not therefore understand what was going on. Counsel submitted that this is contrary to Article 50 (2) (m) of the Constitution. His submission further was that the appellant was not able to ask any questions in cross-examination as he did not understand what was going on. Counsel noted that nine witnesses testified, but not a single one of them was questioned by the appellant. It was his submission that this was because the appellant did not understand what was stated.

9. The appellant submitted therefore that the magistrate failed to observe section 197 of the Criminal Procedure Code in the manner in which he recorded the evidence specifically, in relation to cross-examination, noting that all he records was ‘nil’. The appellant relied on the decision in Thomas Lokave vs Rep – (2012) eKLR, in which the court found that the trial was defective for lack of an interpreter. Counsel further cited the decision in Maurice Mutembei Kambathuki vs Republic (2011) eKLRto submit that the provisions of section 197 and 198 of the Criminal Procedure Code are mandatory.

10. The appellant further argued that the sentence of 5 years meted out was manifestly harsh and excessive, as was the order that his driving licence would be cancelled for 5 years after completion of sentence. It was submitted on his behalf that the sentence was excessive as he was a first offender. Further, that under section 46 of the Traffic Act, the period provided for cancelling a licence is 3 years, and the period of 5 years is excessive. The appellant prayed that the conviction and sentence be quashed and the appellant set at liberty.

11. In submissions on behalf of the state, Mr. Mutai opposed the appeal and submitted that the conviction was proper and should not be disturbed. Counsel submitted that the charge against the appellant was not defective for being a duplex charge. He relied on the decision in Dickson Muchino Mahero vs R – CACA 53 of 2002 (2002) eKLR, in which the court states that section 46 of the Traffic Act does not create more than one offence but does set out different ways of managing a motor vehicle which will give rise to the offence. It was his submission that the court in that case departs from previous decisions of the court on the issue, which the appellant has relied on in this case.

12. Mr. Mutai further referred the court to a commentary on a similar section in the United Kingdom’s Road Traffic Act, 1960, which is to the effect that it is permissible to charge a defendant with “driving at a speed and in a manner dangerous to the public.”

13. However, in the state’s view, even if it is taken that the section creates more than one offence, the offences would be two – one would be recklessly or two at a speed or manner dangerous to the public. In this case, the charge sheet reads that the appellant was charged with the second element- at a speed or in a manner dangerous to the public. There was therefore no duplicity, and the appellant’s argument in this regard should fail.

14. With respect to the second ground of appeal, the state submitted that the appellant’s argument that he did not understand the proceedings because there was no interpretation was not supported by the record. Counsel pointed out that when the appellant took his plea, there was a court clerk named John, and there was interpretation in English-Kiswahili-Kipsigis. The appellant stated when the plea was read out that it was true, later changing his mind to plead not guilty, when a clerk named Cheptoo was present and interpretation is indicated as English-Kiswahili-Kipsigis. Thereafter, according to Mr. Mutai, the trial proceeded in the presence of a clerk called John. In the state’s view, the mere fact that the appellant said nothing in cross-examination when given a chance to do so cannot be taken as evidence that he did not understand or follow the proceedings.

15. The state conceded that the period of cancellation of the appellant’s licence provided by law is 3 years and not 5.

16. I note from the appellant’s supplementary grounds of appeal and submissions on his behalf that he does not challenge the evidence on the basis of which he was convicted. He relies on three grounds; that the charge was duplex; that there was no interpretation provided and therefore the provisions of section 197 and 198 of the Criminal Procedure Code were not complied with; and finally, that the sentence given was excessive given that he was a first offender, and further, that the law provides for cancellation of a licence under section 46 of the Traffic Act for 3, not five years.

17. I have read the record of the court against the submissions of counsel for the parties. I note that the appellant does not challenge the evidence at the trial, the core of the appeal being that the trial court failed to comply with a procedural requirement at the trial, and that the charge sheet was defective for being duplex. As the first appellate court, I am under a duty to reconsider and re-evaluate the evidence on record, bearing in mind that I did not see or hear the witnesses, and reach my own conclusion-See Okeno vs R [1972] EA. 32 and Mohamed Rama Alfani & 2 Others vs Republic, Criminal Appeal No. 223 of 2002. However, in this case, given the grounds of appeal which do not question the evidence before the trial court, I will consider first the challenges raised with regard to the proceedings before the trial court and the nature of the charge facing the appellant and if it was defective for being a duplex charge.

Whether the charge was a duplex charge

18. I have considered the submissions of counsel for the appellant and the state. I have also considered the authorities relied on by the appellant and the state. As I understand it, the argument by the appellant is that section 46 of the Traffic Act creates four different offences, and it is therefore a duplex charge to include all the elements set out in the said section in one charge. This reading of the section stems from the decision of Torgbor J in Nzioka vs R (supra).

19. It is correct that the Criminal Procedure Code requires that there should be clarity in the framing of charges against an accused person. Section 134 thereof, which is titled ‘Offence to be specified in charge or information with necessary particulars’provides as follows:

Every charge or information shall contain, and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

20. Section 135 (1) and (2) set out the circumstances under which joinder of counts in a charge or information is allowed. It provides as follows:

1. Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count.

21. In his decision in Nzioka vs R, Torgbor J ruled that section 46 of the Traffic Act created four offences, and therefore found that the charge framed against the appellant in that case was duplex and therefore defective. I observe, however, that the decision is persuasive, being from a judge of concurrent jurisdiction, and I am unable to agree with the reasoning in the said decision. While it is true, as I observed above, that the Criminal Procedure Code requires that the charge be clear and that there should not be duplex charges, I do not find that there is a duplex charge in the present instant.

22. I believe the reasoning of the Court of Appeal in the DicksonMuchino Mahero case relied on by the respondent in this case is more appropriate to the present circumstances. In that case, the Court stated as follows:

“An offence under section 46, aforesaid, is in actual fact a charge of manslaughter in connection with the driving of a motor vehicle by an accused. The section does not create more than one offence, but does set out different ways of managing a motor vehicle which may give rise to the offence. The different modes of driving are in themselves offences under different provisions of the Traffic Act. For instance section 47, thereof creates the offence of reckless driving, which includes dangerous driving. Section 49, creates the offence of careless driving and section 53 creates the offence of obstruction. But in a charge under section 46 the particulars of the charge, although in themselves may allege offences those sections create, they are in fact in the nature of particulars to support the manslaughter charge.”

23. Later in its judgment in that case, the Court of Appeal stated:

“As we stated earlier the particulars of the offence under section 46 of the Traffic Act, with which the appellant was charged alleged that it was due to him driving a certain motor vehicle at a “speed or manner” which caused the death of the deceased. These were particulars which were intended to give him reasonable information as to the nature of the offence he faced. Whether or not those particulars were clear enough to him is a question of fact on which the Court has to make a finding. Sections 382 and 361(5) CPC, in a way clothe appellate courts with the jurisdiction to re-evaluate the facts and the evidence to satisfy themselves that the accused has not been prejudiced or embarrassed in answering the charge against him as framed. That is the approach, we think the court adopted in Shah v. Republic [1969] EA 197, when it rendered itself thus:

“... The real offences were causing the deaths of two people by driving in a manner dangerous to the public by reason of one or the other of two things, viz the speed or manner of driving. How can it be stated, therefore, with any sense of reality that he did not know what case he had to answer" It seems to me that an accused is in no worse position where the particulars of the offence are framed disjunctively than when they are framed conjunctively. Is prejudice really occasioned by the use of the word “or” but not the use of the word “and” Whether “or” or “and” appears in the charge an accused knows that he must be prepared to meet both limbs of the charge”.

24. The charge facing the accused under section 46 is one of causing death by the manner of driving a motor vehicle on a public road. That the charge sheet included both the speed and manner of driving the motor vehicle does not, in my view, render the charge a duplex charge. In any event, the mischief that the law seeks to avoid in providing that there should not be duplex charges is to ensure that there is no uncertainty in the mind of an accused person with regard to the charges that he is facing. In the words of the court in Paul Katana Njuguna vs Republic-Criminal Appeal No. 37 of 2015 (2016) eKLR:

“We accept as the correct position in law that uncertainty in the mind of the accused is the vice at which the rule against duplicity is aimed. If there is no risk of confusion in the mind of the accused as to the charge framed and evidence presented, a charge which may be duplex will not be found to be fatally defective.”

25. Accordingly, I am not satisfied that there is any merit in the challenge to the conviction of the appellant by the trial court on the basis that the charge was duplex.

Failure to comply with section 197 and 198 of the Criminal Procedure Code

26. The appellant argues that the trial was conducted in a language that he did not understand. It was submitted that there was no indication that there was an interpreter during the trial, and this explains why he did not cross-examine any of the prosecution witnesses. The state concedes that indeed the record does not indicate that there was interpretation. It argues, however, that the record indicates that a clerk, John, was present, and since he had interpreted when the accused took the plea, it must be taken, even though it is not recorded, that there was interpretation in a language that the appellant understood during the trial.

27. Section 197 of the Criminal Procedure Code deals with the manner of recording proceedings before the trial court. It provides as follows:

197. Manner of recording evidence before magistrate

(1) In trials by or before a magistrate, the evidence of the witnesses shall be recorded in the following manner—

(a) the evidence of each witness shall be taken down in writing or on a typewriter in the language of the court by the magistrate, or in his presence and hearing and under his personal direction and superintendence, and shall be signed by the magistrate, and shall form part of the record;

(b) such evidence shall not ordinarily be taken down in the form of question and answer, but in the form of a narrative:…

28. From the record of the proceedings before the trial court, I cannot see a basis for impugning the proceedings on the basis that this section was not complied with.

29. Section 198, which is, I believe the section that the appellant can properly contend was not complied with, provides as follows:

198. Interpretation of evidence to accused or his advocate

(1) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open court in a language which he understands.

30. I have read the record of the trial court. On 3rd February 2012, the record indicates that there was interpretation from English to Kiswahili/Kipsigis. The court clerk then was John. On 6th February 2012, when the appellant changed his plea to not guilty, the court clerk was Cheptoo, and the record indicates that there was English/Kiswahili/Kipsigis.

31. The trial started on 19th March 2012. The record indicates that the court clerk was Kimiriny. There is no indication that there was interpretation of the proceedings. Thereafter, there is no indication of the language used in the course of the proceedings. Contrary to submissions by Mr. Mutai, the clerk, John, was in court only on the 8th of May 2012. Thereafter, the record indicates that Godfrey/Leonard or Lenny assisted the court.

32. In any event, it cannot be assumed that the presence of a particular clerk, which is not even the case in the matter before me, meant that the proceedings were conducted or interpreted in a language that the appellant understood. There is a duty on the trial court to ensure that the trial is conducted in a language that the accused persons understands, and to record that fact in the proceedings. It is not possible to tell from the proceedings whether the appellant understood the proceedings or not.

33. He may well have. As submitted by Mr. Mutai, he had pleaded guilty when he first took the plea, when the proceedings were interpreted into Kiswahili and or Kipsigis. I pause here to observe that the record should indicate clearly what the language used was. Were the proceedings interpreted to Kipsigis from English or to Kiswahili? It may also well be true that he did not cross-examine the witnesses because he agreed with what they stated, especially taking into account his defence, which was a plea for forgiveness. However, that is an assumption that this court cannot make. In the absence of a clear indication on the record that there was interpretation of the proceedings in a language that he understood to enable the appellant follow the proceedings, it would be unsafe to assume that he did understand the proceedings. On that basis therefore, this appeal must succeed.

34. The appellant also challenged the sentence imposed upon him on the basis that his licence was cancelled for a period of five years, while the law provides for three. This was conceded by the state. Having, however, found that the appeal must succeed because the record does not indicate that the trial was conducted in a language that he understood, I need say no more on this point.

35. The next question is what the best course of action to take is, having found the trial to be defective for a fault that cannot be laid at the feet of the prosecution. Should the court remit the matter back to the magistrate’s court for a retrial?

36. The principles on which a court will order a retrial are fairly well settled-see, for instance, the case of Fatehali vs Manji (1966) E.A. 343 and Laban Kimondo Karanja vs Republic (2006) eKLR.These principles are:

i. A retrial may be ordered only when the original trial was illegal or defective.

ii.Whether an order for retrial should be made depends on the particular facts and circumstances of each case but should only be made where the interests of justice require it and where it is not likely to cause an injustice to an accused person.

iii. A retrial should not be ordered unless the appellate court is of the opinion that on a proper consideration of the admissible evidence, or potentially admissible evidence a conviction might result.

37. In this case, the original trial was defective because the trial court failed to comply with the requirements of section 198 of the Criminal Procedure Code and indicate the language of the court and whether or not interpretation was provided for the accused. The question is whether the circumstances of the case would justify an order for a retrial, and whether the admissible evidence might result in a conviction.

38. To answer the second question first, I have considered the evidence before the trial court. The evidence is that the appellant drove a motor vehicle and collided from the rear with a stationary vehicle, as a result of which one of his passengers sustained fatal injuries. The appellant had been talking on his mobile phone while driving, was warned, twice, according to the available evidence, that there was a lorry ahead; he bent down to pick up something from the floor of the vehicle, while still driving, and hit the lorry from the rear. It is likely that were the court to send the matter back for a retrial, a conviction on a charge of causing death by dangerous driving under section 46 of the Traffic Act might result.

39. Would this result in an injustice to the appellant? The accident that resulted in the charges against him took place more than five years ago. He was tried in a process that this court finds was flawed as a result of an omission by the trial court. The appellant served a short stint of his five year jail term between 15th January 2013 and his release on bail pending appeal on 19th March 2013. He has served a further seven months following the cancellation of his bail for failure to appear in court on the date fixed for the hearing of his appeal. In the circumstances, I believe it would not be just to send the matter back to the trial court for a retrial.

40. The witnesses for the prosecution may no longer be available, given that the incident took place more than five years ago. The matter has been hanging over his head for the last five years, and it may take time before the prosecution makes contact with the witnesses who testified at the trial. I am not satisfied that remitting the matter back to the subordinate court for a retrial will meet the ends of justice.

41. Accordingly, I hereby quash the conviction and sentence against the appellant for failure by the trial court to comply with section 198 of the Criminal Procedure Code. However, I do not deem it appropriate in the circumstances of this case to order a retrial. The appellant shall be released forthwith unless otherwise lawfully held.

Dated Delivered and Signed at Kericho this 11th day of October 2017.

MUMBI NGUGI

JUDGE