20081201 TZHC Mbeya

I INTHE i-HG I-I COURT 01: TANZANIA I A I M 13 L \ A

ORIGINAL JURISDICTION (Mbeva Registry) • • •• DC CRIMINAL APPEAL NO. 44 OF 2008 / . Original Traffic Case No. 2of 2008 from Kyela District Court at Kyela) GEOFREY Sb MWAISEMftL\ ... ... APPELLANT \'ERSUS TI-tE REPUBLIC ,,. ... ,.. ... RESPONDENT ii i r'r'iii:x'r I I Nov. & 1/12/2008 iVISU\'A, J. The appellant Geofrey, iViwaisemba was charged with two oftences namel . the offence of causing death through dangerous driving contrary to section 40 (I) and Section 63 (2) (a) of the Road Traffic Act No. Cal). 168 R.E.

2002. The second count is the offence of clri ving a motor vehicle without third part insurance risk contrary to SectiOn 4 I ) and (2) of the Motor Vehicle Insurance .i-\ct Cal). 169 R.F.

2002. At the end ni the trial the appellant was con\.ictecl in both counts and sentenced to 4 years imprisonment for the I ' count and six months imprisonment for the second count, both sentence to run concurrently. In addition he was disqualified to hold any driving licence Ibr a period ol three "ears from the date of release from prison in terms of section 27 of the Road Trafic Act Cap. 168 RE.

2002. Aggrieved by both conviction and sentence he preferred this appeal. Three witnesses were called at the District Court. PW.i Riziki Samson i\'Ialienge and PW.2 Bernard Mahenge stated that on the 23/1/2008 at about 17.45 hours. they saw the appellant person ciri \'ing a car with Reg. T.934 AM I Toyota Cimr. That the appellant was ciri vi rig the car in a high speed, such that, hc was about tri knock an uniclenti uiecl person. the incident which attracted their attention, and that the road side was crowded After missing the first person the appellant knocked a child who was standing beside the road about to cross. The child died on the spot. The witnesses further informed the lo\.ver court that there was another car which as parked in front of the appellants car. The other witness called was 1)9999 CpI Juma who was P\V.. The 'vimc's 1 testified that on relying on the evidence of two 'vitneSSeS who alleged to 111\ e \vitnce.i the accident he prepared a sketch plan. 1-Ic also informed the court that the car driven by the appellant without a val id insurance cover. That the insurance cover had expired in Noveniher, 2007 which was about 6 months from the date lie was arrested. In his defence the appellant denied to have committed the offence of causing death through dangerous driving. He also dispLitedl the fact that lie was driving a car without a valid driving licence. In

convicting the appellant the trial court relying on the testimony of P WI. PW.2 and 1 3 W.3 and dismissing the defence of the appellant, was convinced that the appellant was driving dangerously. That the said car was chemically sound bcl'orL and after the accident, the driver was traveling on a straight tarmac road. the area was crowded with people and there was a stationery minibus in front of the appellant's car. Despite those facts the appellant did not care or reduce the speed before overtaking the stationery car and when passing through a crowded place. The trial magistrate observed further that those circumstances suggested to him that the niocle of driving adopted h the accused was below the standards required in the place as dangerous. He supported his decision by the case ofJOACHIM GREGORY V. REPBLIC (1975 LRT. 44. the case of HUSSEIN KASSIM V. R. (1986) TLR. 18 and in the case 1-IEMED SAID v.\I01-LAJV1EI) M B1LI.J (1934) TLR.

113. This is in relation to the hrst count. As regards the second count of driving a motor vehicle without having a ahid driving licence, the trial court in convicting the appellant. observed that despite the fact that the appellant stated in his defence that his boss had already renewed the licence, lie was given an opportunity throughout, when the case was on trial to bring to the court the renewed insurance cover but he could not. In the memorandum of appeal. the appellant raised sonic grounds of appeal which could be sumniecl up to four main grounds. The first ground is that the trial magistrate erred in law and infact in convicting the appellant on an insufficient evidence of the eye witnesses relating to the alleged speed. naniely PW. I , PW.2 and PW.3 a police officer who prepared a sketch plan. The second ground of appeal is that lie was not given an opportunity to call his witnesses. That the witnesses were summoned. but did not turn up and the trial court did not take any steps to ensure that the witnesses turned up. The third ground is thai the insLirance cover was renewed but it not stucl. in ( the car. The car was inspected in his absence: it could have been taken by the police. On the fourth ground of appeal, he is challening the sentence imposed again.t In reply to the appellanLs grounds of appeal Mr. Msit!\.va. learned State Attorney representing the

respondent/Republic, did not support the conviction on the issue of dangerous driving, he submitted that. the issue of dangerous driving, has not been tested. What is used is an objective test. He referred this court to the case ol MASUMBUKO ATHMAN V. REPUBLIC (1991) TLR 19 at page 20. That the evidence of Pwl PW.2 and PW.3 was not sufficient to prove that the appel ant v as driving dangerously. I concur with the learned State attorney that especially PW. 1 and PW.2 ho \\ crc the eye witnesses, whose evidence was also relied upon by PW.3 to prepare the sketch plan did not prove exactly how danuerous was the driver. They just stated that the driver was in a high speed. I-low high, especially in such an area that was crowded and there \.vas a stationery car in front. The evidence by PW.2 was also that. after the appellant passed the stationery car lie knocked a child who was on the left side oh' the roid. .\ question arises, if the child was on the left side of the road. and the appellant '.as overtaking or passing a stationery car, considering the fact that one overtakes on the right. ho\v did lie go to the left side of the road and knock a child, was the child standing or crossing the road? How did he go to the left side of the road and knocked a clii cl. \\'hat was the distance from the stationery car to where the child was knocked? -\ccording to the evidence of PW.3. the

sketch map shows that the distance from where the appellant applied brakes to where the child was, is 23 meters long. _, PW. I and PW.2 testified that before the appellant knocked the child: lie was about. to knock an unidei tified person, than there was a stationery car in front of lii m. the quesuons is when started o apply brakes. When lie was about to knock. the unidentified person, the stationery car or the child? As correctly argued by the Lear ned State Attorney for the respondent/Republic, it will be very dangerous to uphold the conviction with so many questions unanswered. In view of what is stated above. I allow the appellant's appeal on the first count. ClUash the conviction and set aside the sentence imposed against him. The order for disqualification of the driving licence is set aside. On the second count 1 And no reason to fault the trial magistrate. I aeree with him that if the appellant had a valid insurance cover he had ample time to prove the same. either by producing it in court or evidence of pavnient of the insurance CO\ er. As uch the conviction is upheld and the appeal against the second count is dismissed. The sentence against the second count is undisturbed. It is so ordered. V.1-I. MsLIya. Judge 1 1 12/2008 Date: 1/12/2008 Coram: F-Ion. U.H.Msuya. Appellant: Present. i-or kepubl ic: Miss Flora - State Attorney. CC: Mrs. Flora Mponzi. Orcle r: Judgment is delivered on the W day of December. 2008 in the presence ()F the /-\ppellant in person and the learned State attorney Miss Flora - for the Respondent 1/12/2008