[2017] KEHC 4321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 57 OF 2016

WILKINSON MWANJARA MWAMBURI……………….................. APPELLANT

VERSUS

REPUBLIC …………………………………..……….………… RESPONDENT

(From original conviction and sentence in Criminal Case Number 468 of 2014 in the Senior Principal Magistrate’s Court at Voi delivered by Hon E. M. Kadima(RM) on 8th August 2016)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Wilkinson Mwanjara Mwamburi, was tried and convicted by Hon E. M. Kadima, Resident Magistrate for the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act Cap 403 (Laws of Kenya). He was sentenced to servethree (3) years imprisonment and his driving licence cancelled for a period of three (3) years from the date of the hearing

2. The particulars of the offence were as follows:-

“On 11th day of April 2014 at about 3. 45 pm at Ikanga area along Mombasa/Nairobi Highway in Taita Taveta County of(sic), being a driver of motor vehicle Reg. No. KAP 988Ymake Toyota matatu did drive the said motor vehicle along the said road dangerously and without due care and attention or without consideration to other road users you were overtaking other motor vehicles carelessly and at(sic)the process you knocked one motor cycles Reg. No. 673S make Boxer at the main(sic)time you caused the death of one GEBRIEL NJOYI.”

3. Being dissatisfied with the said judgment, on 4th November 2016, the Appellant filed a Notice of Motion application seeking leave to file his appeal out of time. The application was allowed and the Petition of Appeal deemed as having been duly filed and served. He relied on five (5) grounds of appeal in his Memorandum of Appeal.

LEGAL ANALYSIS

4. Being the first appellate court, this court is under a duty to re-examine the evidence that was adduced in the lower court as was held by the Court of Appeal in the case of Odhiambo vs Republic Cr. App No. 280 of 2004 (2005) 1 KLR where it was stated that:-

“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”.

5. In his Written Submissions, the Appellant summarised the issues for determination as follows:-

a. Whether there was sufficient evidence to convict him on a charge of causing death by dangerous driving;

b. Whether the Prosecution case as credible, strong and unchallenged by his defence;

c. Whether the sentence of three (3) years imprisonment without fine was warranted.

6. Having looked at the Grounds of Appeal and the Written Submissions, it was the view of this court that the following were really the issues that had been placed before it for determination:-

a. Whether or not the Prosecution proved its case beyond reasonable doubt;

b. Whether or not the penalty was harsh, excessive and severe.

7. The circumstances of the case herein were that on 11th April 2014, Gabriel Njoyi (hereinafter as the deceased”) was cycling his Motor Cycle Registration Number KMDA 673S along Mombasa- Nairobi Highway when he was hit by Motor Vehicle Registration Number KAP 988Y as a result of which he sustained serious injuries from which he succumbed three (3) days later.

8. At the time of the material accident, the deceased was ferrying two (2) pillion passengers. Both theMotor Cycle Registration Number KMDA 673S and Motor Vehicle Registration Number KAP 988Y were extensively damaged. The said Motor Cycle had pre-accident defects while the said Motor Vehicle had none. The Appellant herein was charged with the present offence as he collided with the deceased as he was overtaking another motor vehicle.

9. The Appellant adduced sworn evidence. Heblamed the deceased for having caused the accident herein for encroachinginto his lane while overtaking a stationary lorry.

10. On 19th February 2015, PW 4 requested for time to trace a witness because him and the said Motor Vehicle were the only witnesses (sic). He pointed that if the matter proceeded as it did, the Complainant would be denied their day in court. The only witnesses who testified were the deceased’s wife, Patience Mayala Mwawasi (hereinafter referred to as “PW 1”), a Motor Vehicle Inspector, Robert Chilango Gengelenge (hereinafter referred to as “PW 2”), Dr Stephen Katana (hereinafter referred to as “PW 3”) and PW 4.

11. PW 1’s evidence was that on the material date, she was called to Moi District Hospital after being informed that the deceased had been involved in an accident. PW 2 adduced in evidence Certificates of Motor Vehicle Inspection respect of the said Motor Vehicle and the Motor Cycle. PW 3 confirmed that the cause of the deceased’s death was severe traumatic head injury. PW 4 adduced in evidence showing both the MotorVehicle and Motor Cycle off the road on the side towards Mombasa.

12. Notably, the Appellant’s evidence on how the accident occurred was haphazard making it difficult for this court to understand. Neither did the Investigation Officer No 53920 Corporal John Ndinga (sic) (hereinafter referred to as “PW 4”) explain where the impact of the accident was. He only stated that it was about one (1) metre from the white line.

13. However, the sketch plan showed both the Motor Vehicle and Motor Cycle off the road on the side towards Mombasa. If the Appellant was on the road going towards Nairobi, he was unable to explain how this Motor Vehicle veered off to the opposite side on the rightwhere the deceased ought to have been as he was riding to Voi. In fact, there was no logical explanation how the Motor Vehicle veered on its right after colliding with the motor cycle.

14. The Appellant’s assertions that the deceased was overtaking another stationary lorry when they collided head on collision did still not make sense as the Appellant testified that there was another lorry ahead of him. If there had to be a head on collision, it could only have been between the said Motor Cycle and the said lorry and not between the Motor Cycle and the Appellant’s Motor Vehicle. The fatal injuries that were occasioned to the deceased were indicative of the fact that the Appellant was not driving at 20-30 kph at the time of the accident herein.

15. This court therefore agreed with the State’s submissions that the Appellant was guilty of the offence that he was charged with, a conclusion that the Learned Trial Magistrate correctly arrived at. The Learned Trial Magistrate was justified in having found that the Prosecution discharged its burden of proof beyond reasonable doubt.

16. Turning to the issue of the sentence, this court noted the State’s submissions that the said Learned Trial Magistrate exercised his discretion judiciously when he sentenced the Appellant to three (3) years imprisonment and pointed a fine could also have been imposed on the Appellant herein. It, however, pointed out that the Learned Trial Magistrate acted excessively when he cancelled the Appellant’s driving licence for three (3) years. It was its view that one (1) year suspension of the driving licence would have been adequate as the Appellant was a first offender.

17. It referred this court to the case of Isaac Waithaka Njuguna vs Republic [2006] eKLR. In the said case, Makhandia J (as he then was) imposed a fine of Kshs 60,000/= and upheld the Trial Magistrate’s decision to cancel the driving licence for a period of three (3) years.

18. 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 ofsection 50have 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 offenderand 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.”

19. Appreciably, the deceased died as a result of the Appellant’s negligence. His wife was robbed of a husband. No amount of sentencing can bring back the deceased. Any sentence to his family can only be retributive in nature. However, in view of the fact that there were no aggravating circumstances such as the Appellant having been under the influence of alcohol or some other drugs, it was the view of this court that a sentence of three (3) years was reasonable as he was said to have been a first offender.

20. Appreciably, sentencing is an exercise of discretion by a trial court and an appellate court ought not to interfere with such sentence unless the same in manifestly excessive, harsh and severe. Be that as it may, during an appeal, an appellant court is not prevented from considering other options of penalty that it can impose on a convicted person.

21. Section 26(3) of the Penal Code Cap 63 (Laws of Kenya) provides as follows:-

“A person liable to imprisonment for an offence may be sentenced to a fine in addition to or in substitution for imprisonment”

22. Further, Section 28 (1) of the Penal Code provides as follows:-

“Where a fine is imposed under any law, then in the absence of express provisions relating to the fine in that law the following provisions shall apply-(b) in the case of an offence punishable with fine or a term of imprisonment, the imposition of a fine shall be a matter of discretion of the court(emphasis court).”

23. It is therefore clear that as Section 46 of the Traffic Act does not prescribe a minimum sentence as envisaged in Section 26(3)(i) of the Penal Code, an option of fine can be considered herein.

24. Appreciably, in the Sentencing Policy of the Judiciary has proposed that where options are provided for both custodial and non-custodial sentence, the court ought to consider the gravity of the offence and criminal history of the convicted person.

25. In that regard, this court was persuaded that it could impose a fine upon the Appellant herein as he had sought in his Appeal forthe reason that the Sentencing Policy of the Judiciary encourages imposition of alternative penalties for first offenders as opposed to meting out custodial sentencesin the first instance.

26. Going further, the Learned Trial Magistrate also suspended the Appellant’s license from the date of the Sentencing. The State was of the view that suspension of the Appellant’s driving license for three (3) years was too excessive. However, as can be seen in Section 46 of the Traffic Act, it does not provide for a lower period of suspension of a convicted person’s driving licence. It refers to suspension for a period of three (3) yearsstarting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.

27. The said Learned Trial Magistrate opted to have the suspension commence from the time of conviction. He was indeed very lenient to the Appellant as the three (3) years’ suspension of his driving licence would end at the end of his three (3) year sentence, if he was to complete the same in prison. If the said suspension was to commence at the end of the sentence as stipulated in Section 46 of the Traffic Act, the Appellant would suffer more as he would not drive or be economically engaged as a driver if the three (3) year suspension after completing his sentence.

28. From the circumstances of this case, the accident occurred on the lane of the deceased. This was evident of the Appellant’scarelessness and reckless driving that caused the deceased’s death. Such careless and reckless drivers that ought not to be on our roads at all. It was therefore the view of this court that the said Learned Trial Magistrate exercised his discretion judiciously by suspending the Appellant’s driving licence for three (3) years from the date of conviction which was in line with the provisions of the law. The duration of the suspension of his license could not be reduced to one (1) year as had been proposed by the State herein as the three (3) years suspension is the minimum.

29. Just as Makhandia J (as he then was) upheld in the case of Isaac Waithaka Njuguna vs Republic(Supra), this court was not persuaded to interfere with the Learned Trial Magistrate’s suspension of the Appellant’s driving license as aforesaid.

DISPOSITION

30. For the foregoing reasons, the court’s decision in respect of the Appellant’s Appeal that was lodged on 4th November 2016 was that it was partially successive. The Prosecution proved its case against him beyond reasonable doubt and in the circumstances,it hereby affirms the conviction against him as it was lawful and fitting.

31. However, as he was a first offender and there were no aggravating circumstances, this court hereby replaces the sentence that had been imposed upon him by the Learned Trial Magistrate in the following terms:-

a. The Appellant be and is hereby fined Kshs 200,000/= or in default to serve three (3) years imprisonment.

b. As the Learned Trial Magistrate found and held, the Appellant’s license shall remain suspended for a period of three (3) years.

32. It is so ordered.

DATED and DELIVERED at VOI this 18th day of July 2017

J. KAMAU

JUDGE

In the presence of:-

Wilkinson Mwanjara Mwamburi - Appellant

Miss Anyumba -Respondent

Josephat Mavu– Court Clerk