[2014] KEHC 8545 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL REVISION NO.521 OF 2013

REPUBLIC…………………………………....……………………………………………..APPLICANT

VERSUS

DILESH SONCHAND BID……………………………………………………………......RESPONDENT

RULING

The Respondent, Dilesh Sonchand Bid was charged with several offences relating to a traffic accident that occurred along Nairobi-Thika Road on 21st October 2012. He was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act. The particulars of the offence were that on the said date and on the said road, he drove a motor vehicle registration No. KBP 875U Toyota Landcruiser at such a speed or in such a manner that was dangerous to the public and having regard to all the circumstances of the case including the nature, condition and use of the road at the time that he caused the death of Yvonne Chemetich Langat. He was further charged with two counts of careless driving contrary to Section 49(1) of the Traffic Act. The particulars of the offence were that on the same day and in the same place, driving the same motor vehicle, the Respondent without due care and attention, hit two pedestrians, namely Galgalo Halauhe Waqo and Mary Rita Kendi thereby causing them to sustain serious injuries. Although the Respondent initially pleaded not guilty to the charge, in a subsequent hearing date, he pleaded guilty to all the three counts. In respect of the first count, he was sentenced to pay a fine of Kshs.100,000/-, and in respect of the second and third counts he was sentenced to pay a consolidated fine of Kshs.5,000/-.

The State was aggrieved by the decision. It invoked this court’s revisionary powers under Section 364 of the Criminal Procedure Code. The State is of the view that the sentence imposed by the trial court was manifestly lenient, and therefore illegal, that it requires intervention by this court. The State is of the view that the Respondent should have been sentenced to serve a custodial sentence, and further, have his driving licence revoked for a period of time. On his part, the Respondent is of the view that there are no grounds upon which this court can review the sentence imposed by the trial court. The Respondent stated that the sentence imposed upon him was both legal and fitted the nature of the offence that he had committed.

Prior to the hearing of the revision, counsel for the Applicant and the Respondent filed written submission. The said submission was highlighted by Mr. Kabaka for the State and by Mr. Sehmi for the Respondent. From the submission made, it was clear that what the Applicant is challenging is the discretion of the trial court in sentencing the Respondent. The principles to be considered by this court in determining whether or not to interfere with the exercise of discretion by a trial court in sentencing an accused person were restated in Griffin –vs- Republic [1981] KLR 121 where the Court of Appeal held that an appellate court can only interfere with the exercise of such discretion by the trial court where the sentence is manifestly harsh or extremely lenient. The court will also interfere with the sentence where it is established that the sentence was illegal. In the present application, the Respondent was convicted of several traffic offences. He pleaded guilty to the charge. As was observed by the Court of Appeal in the case of Orweryo Missiani –vs- Republic [1979] KLR 285, a conviction of an accused person in a traffic offence is not similar to a conviction of such an accused person in an ordinary criminal case. This is because in traffic cases, it can never be said that the accused person set out to commit the offence. The offence is committed due to the carelessness or recklessness of an accused person. The decree of blameworthiness is what results in an accused person being charged with the offence of dangerous driving. The court held thus at page 289:

“As regards the first question, it is relevant to consider the degree of blameworthiness on the part of the driver which has to be proved by the prosecution before he can be convicted of the offence of causing death by dangerous driving. In Republic –vs- Gosney [1971] All ER 220 it was held by the Court of Appeal, Criminal Division, that in order to justify a conviction there must have been a situation which, viewed objectively, was dangerous, and also some fault on the part of the driver. In regard to this element of fault, Megaw L.J, reading the judgment of the Court of Appeal, said (at page 224):

“Fault” certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame…..Fault involves a failure; a falling below the care or skill of a competent and experienced driver, in relation to the manner of driving and to the relevant circumstances of the case. A fault in that sense, even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient.

This English decision was followed local in Atito –vs- The Republic [1975] EA 278.

The principles of sentencing in relation to this offence were considered by the Court of Appeal, Criminal Division in R –vs- Guilfayle [1973] 2 All ER 844. Lawton L J, delivering the judgment of the court, said (at page 844):

The experience of this court has been that there have been many variations in penalties. Some variations are inevitably because no two road accidents are alike, but there are limits to permissible variations and it may be helpful if this court indicates what they are. Cases of this kind fall into two broad categories; first, those in which the accident has arisen through momentary inattention or misjudgment, and secondly those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or his passengers or with a degree of recklessness. A sub-division of this category is provided by the cases in which an accident has been caused or contributed to by the accused’s consumption of alcohol or drugs.”

In the present case, from the facts of the case, it was clear that the accident was caused through momentary inattention or misjudgment of the Respondent. He explained that on the material night, the road was still under construction. Road signs had not been erected. It was the prosecution’s case that the Respondent hit the pedestrians in a zebra crossing. The Respondent did not deny this fact but stated that the zebra markings were not visible at the time of the accident. He explained that, being a driver of 40 years’ experience, he did his best by swerving and applying emergency brakes with a view to avoiding the accident. The Respondent’s action does not however excuse him from civil liability as a result of the said accident. The Respondent stated that immediately after the accident, he took the victims to hospital. He also catered for the funeral expenses of the deceased pedestrian and the medical expenses of the injured victims. In this court’s assessment, this was not the action of a reckless driver that calls for custodial sentence. The court in the Orweryo Missiani case stated as follows at page 290:

“To the same effect is the judgment of the High Court of Kenya in Govid Shamji –vs- The Republic(unreported) in which Madan and Chesoni JJ said:

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 care 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 interests of justice as well as the interests of the public. There are of course cases where a custodial sentence is merited, for example, when there is a compelling feature such as an element of intoxication or recklessness.”

Mr. Kabaka for the State argued that the sentence imposed on the Respondent was lenient and illegal. He urged the court to set aside the said sentence and impose an appropriate sentence. From his submission, it was clear that what the State was seeking is for the Respondent to be sentenced to serve a custodial sentence, and further, to have his driving licence suspended as provided under Section 46 of the Traffic Act. It appeared that the State is of the view that the Respondent caused the accident due to recklessness. This court has assessed the facts of the case and is of the view that the Respondent did not cause the accident as a result of recklessness but rather as a result of momentary inattention and lack of judgment. In the premises therefore, the court does not agree with the State that the sentenced imposed by the trial court was lenient or illegal. Under Section 76(1) of the Traffic Act, the trial court had discretion to suspend or not to suspend the driving licence of the Respondent. The trial court opted not to suspend the Respondent’s driving licence. That court had the discretion to issue such order.

The upshot of the above reasons is that the application for revision filed by the State lacks merit and is hereby dismissed. This court declines the invitation by the State to interfere with the sentencing discretion of the trial court. It is so ordered.

DATED AT NAIROBI THIS 2ND DAY OF DECEMBER 2014

L. KIMARU

JUDGE