https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/132

Republic v Katumo (Traffic Case 291 of 2020) [2026] KEMC 132 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEMC 132 (KLR) Republic of Kenya In the Makindu Law Courts Traffic Case 291 of 2020 YA Shikanda, SPM May 28, 2026 Between Republic Prosecution and Musyoki Kyuma Katumo Accused Judgment The Charge 1.MKK (hereinafter referred to as the accused person) is charged with the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act. The particulars of the offence are that on 30/10/2019 within Makueni County along Nairobi-Mombasa road, the accused person being the driver of motor vehicle registration number KCA 667U Mitsubishi Mini-bus, drove the said motor vehicle at a speed which was dangerous to the public having regard to all circumstances and nature of the road and knocked down SMJ who died on the spot. The accused person pleaded not guilty to the charge where after the matter was set down for hearing. The Evidence The prosecution caseThe prosecution case was partly heard by another Magistrate who was subsequently transferred. When the matter was placed before me, directions were given that the same proceeds from where it had reached. This was in compliance with section 200(3) of the Criminal Procedure Code. I took the evidence of the last two prosecution witnesses. The prosecution called a total of four (4) witnesses in a bid to prove its case against the accused person. PW 1 ZMN testified that he was called on phone by the Assistant Chief and informed that his nephew had been involved in a road accident at Kiunduani area and had died. The witness proceeded to Makindu hospital mortuary where he identified the body. The witness also witnessed the post-mortem exercise. He later saw the accused person at the police station and was informed that the accused person was the driver of the accident motor vehicle at the material time. 2.PW 2 JM testified that he was informed of the accident involving the deceased. He went to the mortuary and saw the body. The witness also testified that he witnessed the post-mortem exercise together with PW 1. PW 3 Police Sergeant Benson Muema testified that he took over the matter after the initial investigating officer retired. The witness produced in evidence the rough and fair sketch plans as well as legends and measurements. PW 4 Dorcas Kavuli Musyoki testified that she did the post mortem on the body of the deceased herein. Her opinion was that the deceased died of severe head injury and severe haemorrhage due to injury to multiple organs. She produced the post mortem report in evidence. The Defence Case 3.When the accused person was placed on his defence, he opted to give a sworn testimony without calling any other witness. The accused person admitted that he was the driver of motor vehicle registration number KCA 677U (wrongly written as 667 in the charge sheet) on the material day. He also admitted the occurrence of the accident involving the motor vehicle and the deceased herein. The accused person stated that he stopped at Kiunduani area along Mombasa-Nairobi Highway to drop off some passengers. That he then drove towards Nairobi direction and that at a distance of between 50 to 100 metres away, a child was crossing the road from the left to the right as one faces Nairobi general direction. 4.The accused person stated that he suddenly saw the child in front of the motor vehicle. He applied emergency brakes but the motor vehicle skidded and knocked down the child. According to the accused person, the accident occurred about 80 metres away from the bus stop. The accused person stated that he stopped the motor vehicle and alighted to go and check on the child. He found that the child was already dead. He boarded another motor vehicle and proceeded to Makindu Police station where he reported the accident. Undisputed Facts 5.From both the prosecution and defence evidence, the following facts are not in dispute:a.The accused person was the driver of motor vehicle registration number KCA 677U on 30/10/2019;b.The accident occurred at Kiunduani area along Mombasa-Nairobi highway on the material day;c.Motor vehicle registration number KCA 677U was involved in the accident;d.The deceased herein was knocked down by motor vehicle registration number KCA 677U which was being driven by the accused person at the material time;e.The deceased died as a result of injuries sustained in the accident and on the spot. Main Issues For Determination 5.In my opinion, given that most of the facts are not in dispute, the main issues for determination are:i.Whether the accused person drove motor vehicle registration number KCA 677U dangerously, thereby causing the accident;ii.Whether the prosecution has established its case against the accused person beyond reasonable doubt. Analysis And Determination 6.I have carefully considered the charge against the accused person alongside the evidence on record. I have further considered the applicable law. As already indicated, the occurrence of the accident and involvement of the accused person’s motor vehicle is not in dispute. The prosecution did not call any eye-witness. The only version as to how the accident occurred was given by the accused person. The investigating officer who visited the scene and carried out investigations was not called to testify. What the prosecution tends to rely on are documents that were prepared by the investigating officer and in particular, the sketch map.Section 46 of the Traffic Act provides as follows:“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.”Section 2 thereof defines road as:“…….any public road within the meaning of the Public Roads and Roads of Access Act (Cap. 399), and includes any other road or way, wharf, car park, footpath or bridle-path on which vehicles are capable of travelling and to which the public has access.” 7.In my view, the key ingredients of the offence of causing death by dangerous driving are as follows:1.Driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public; or2.Leaving a motor 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; and3.Causing the death of another person. 8.In the case of Atito v R [1975] EA 278, it was held that to justify a conviction of the offence of causing death by dangerous driving, there must not only be a situation which, viewed objectively was dangerous, but there must also be some fault on the part of the driver causing that situation. In other words, it must be proven that the accident complained of was as a result of some fault on the part of the accused driver. In the case of R v Gosney [1971] 3 ALL ER 220, it was held that an accident by itself is not conclusive evidence of careless or dangerous driving. There must be evidence to the effect that the driver charged was at fault. Similarly, in the case of R v Wallace [1958] EA 582, it was held that a conviction for driving without due care and attention cannot be founded on the mere fact of a collision, but be based on a finding of fact that the driver charged with the offence was guilty of some act or omission which was negligent and which was a departure from the standard of driving expected of a reasonably prudent driver. 9.In Gosney's case (supra) the court defined the term fault as follows:“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 normally no danger would have arisen from it is sufficient". 10.The onus is on the Prosecution to prove its case against the accused person beyond reasonable doubt. The accused person is under no duty to prove his innocence. It is for this reason that the accused person has a right to remain silent in his defence. It is not for the accused person to convince the court that he is innocent. Rather, it is for the Prosecution to tender evidence sufficient to prove no other narrative than that of the guilt of the accused person. This standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918). 11.Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. 12.For the court to return a verdict of “guilty” on the part of the accused person, the Prosecution evidence must establish fault on the part of the accused person in driving the motor vehicle. The prosecution had a duty to prove a version that would establish guilt on the part of the accused person beyond reasonable doubt. As already indicated, the prosecution did not give a version of how the accident occurred. The sketch map shows that the accident occurred about 100 metres away from Kiunduani trading centre. The map shows the point of impact as almost in the middle of the road. It is however not clear how the point of impact was established since the investigating officer who visited the scene and prepared the sketch map was not called to testify. In any event, the sketch map alone without facts on how the accident occurred cannot be sufficient to impute blame on the accused person. 13.I have considered the accused person’s defence. I am aware that the accused person bears no duty of proving his defence or innocence. His testimony was that he suddenly saw the deceased in the middle of the road. The prosecution has a duty of presenting a narrative that would prove fault on the part of the accused person and not purport to use the version given by the accused person to prove their case. In this case, there was no evidence to be rebutted by the accused person. The prosecution merely managed to prove that the accident occurred and that it led to the death of the deceased herein. There is absolutely no evidence to prove that the accused person drove at a dangerous speed or manner and thereby caused the accident. The fault on the part of the accused person must be established by the prosecution through evidence. Quite unfortunately, the prosecution has failed in this endeavour. I cannot state with conviction that the accused person drove the motor vehicle dangerously and thus caused the accident, leading to the death of the deceased herein. As already indicated, an accident by itself is not conclusive proof of dangerous or careless driving. Disposition 14.Failed to prove its case against the accused person beyond reasonable doubt. Consequently, I find the accused person Not guilty of the offence of Causing death by dangerous driving and proceed to Acquit him accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.