https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/459

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCTR/E073/2025 REPUBLIC VS ANN NYAMBICI GACHANJA JUDGMENT 1. **ANN NYAMBICI GACHANJA** was charged with the offence of causing death by dangerous driving contrary to **Section 46** of the **Traffic Act.** It is alleged that on 4th April 2025 at about 1900 HRS at Kianderi area along Nyoka Nyoka road in Kahuro sub county within Murang’a county, being the driver of motor vehicle registration number KDJ 870L make Toyota Axio, she did drive the said vehicle in a manner which was dangerous to other road users having regards to all circumstances of the case, including nature, condition and the amount of traffic which was actually expected at the time or which was reasonably on the road where she hit a pedestrian namely **PETER KAMAU GATHERU** thereby causing his death. 1. The prosecution called 5 witnesses to testify in support of its case whereas the accused gave an unsworn statement in her defence. 2. Joseph Ndirangu Mwangi (PW1) who owned a show close to Kianderi girls at the time, testified that he was outside his shop tending to a customer, when he saw the accused’s vehicle speed by. He witnessed the vehicle hit the deceased who was beside the road. The deceased’s body landed in a ditch close by and the vehicle and stopped a few meters ahead. 3. When she visited the scene, SGT Jackline Gakii (PW4) found the accused’s vehicle on the right side of the road as one faces Gatuya, about 50 meters from the point of impact. The deceased’s body was on the same side. Based on her investigations and the witnesses’ statements, the deceased and the accused were headed towards the same direction. There was a sign warning of a steep descent ahead, therefore the accused ought to have slowed down to avoid the accident as the deceased was walking a head of the vehicle. PW4 testified that the vehicle had no pre-accident deffects. At the time, its windscreen was shattered, the right-side mirror and front bumper were all damaged. 1. The deceased’s son, Isaack Kahugu Irungu (PW2) rushed to the scene when he was informed of the accident. He found the deceased’s body lying in a ditch and the accused’s vehicle parked close by. PW2 and the deceased’s widow Augustine Rose Wangui (PW3) both confirmed that a post mortem of the deceased’s body had been conducted. 2. Dr. Philip Kamau Mburu (PW5) conducted the post mortem on the deceased’s body on 8th April 2025. According to his examination of the body, the deceased sustained a fracture on the right ankle, bruises and a fracture of the right hand and a fracture of the upper part of the arm on the humerus and clavicle. PW5 also noted that the deceased’s left lung was shrunken and the right one had an infection. His heart chambers were all big and the liver had a bleeding rupture. A sunken fracture was noted from the front part on the right side to the back. The deceased’s brain was also bleeding and had clots. PW5 identified the immediate cause of death as a head injury and bleeding. 3. In her unsworn statement, the accused admitted that she got involved in the accident. She however maintained that she was travelling at a normal speed as it was impossible to speed on that road due to its many bends. Regarding the accident, she testified that she saw the deceased staggering along the road. She tried to swerve when he suddenly got onto the road but could not, as there was a man and 2 children on the other side of the road. She testified that she had not intended to knock down the deceased. # ISSUES, ANALYSIS AND DETERMINATION 1. The accused person has been charged with the offence of causing death by dangerous driving contrary to **Section 46** of the **Traffic Act CAP 403 Laws of Kenya** which provides; *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 be 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.* 1. In the case of ***R v. Gosney [1971] 3 All ER 220***, dangerous driving was defined in the following terms; *“In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. ‘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 standard of care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.”* 1. Based on the foregoing provision, and the charges preferred against the accused, the prosecution was required to prove that first, the accused was driving motor vehicle registration number KDJ 870L, make Toyota Axio on the material day; second, that she drove the vehicle in a dangerous manner given the circumstances, third, that she knocked down Peter Kamau Gatheru, who died as a result. 2. The fact that the deceased died is an undisputed fact. PW5 conducted a post mortem on his body and established that he had sustained numerous grave injuries. He identified the cause of death as the head injury due to blunt force trauma. The deceased’s son PW2 and his widow PW3 both confirmed that the postmortem on the deceased had been conducted as stated by PW5. 3. It is also common ground that the accused was driving motor vehicle registration number KDJ 870L make Toyota Axio on the material day at Kianderi area along Nyoka Nyoka road. This fact was confirmed by PW1 who saw the accused’s vehicle drive by as he was attending to a customer. PW2 and the investigating officer PW4 also arrived at the scene and found the accused’s vehicle parked just a few meters from the scene. 1. The point of contention is whether the deceased was driving dangerously given the circumstances prevailing at the time. PW1 who witnessed the accident, testified that the accused was speeding and that she had hit the deceased while he was walking beside the road. For her part, the investigating officer testified that both the deceased and the accused were travelling on the right side as one faces Gatuya general direction. She drew the sketch map of the scene which showed that the possible point of impact was close to the edge of the road. 2. In her defence, the accused person told the court that the deceased was drunk at the material time and that he had suddenly staggered onto the road. She was unable to evade the deceased in time as there were passersby on the other side of the road. 3. In its analysis of the facts, this court noted that the accident occurred at night when drivers are expected to be doubly careful and on the lookout for other road users. It also notes that there was a road sign warning of a steep descent just a few meters ahead of the scene of the accident. Undoubtedly, these circumstances called for extra vigilance from drivers. 4. The sketch map produced by the investigating officer shows that whereas PW1 testified the deceased was hit while walking beside the road, he was actually on the road as the point of impact was on the road and not beside it. However, while the accused testified that she was travelling at a moderate speed, the fact that the deceased’s body landed in a ditch 70 meters away demonstrates that the impact on his body was high. This court further notes that the accused was unable to halt or control the vehicle in a manner that would avoid hitting the deceased and only stopped the vehicle 70 meters away. This also points to driving at an excessive speed given the circumstances. It was in fact PW1’s testimony that the accused was travelling at a high speed at the material time. 5. As already noted, extra vigilance would be required of driver travelling down a steep road at night. The fact that the accused was unable to control the vehicle in a manner that could avoid the accident despite the fact that she saw the deceased staggering along the road in front of her shows a falling below the standard of care or skill of a competent and experienced driver by the accused. Accordingly, this court finds that the prosecution proved the charges against the accused beyond reasonable doubt. 1. The accused is therefore found guilty of the offence of causing death by dangerous driving contrary to **Section 46** of the **Traffic Act** and is convicted accordingly. 2. Right of appeal 14 days. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 23RD DAY OF JULY 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **JUDGMENT READ IN OPEN COURT IN THE PRESENCE OF; C/A JEREMIAH** **MR. MBURU ACCUSED IN PERSON** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-07-23 14:04:33