' (Being an Appeal from the Conviction and Sentence at the Chief Magistrate’s Court in Nyamira Traffic Case No. E082 of 2023 delivered by Hon. C.W. Waswa, Senior Resident Magistrate on 6 th September 2023)
The Appellant was charged with the offence of driving a motor vehicle on a public road without inspection sticker contrary to Section 17A (3) (a) as read with Section 29 of the Traffic Act Cap 403. The particulars of the charge were that on 8 th August 2021 along Kebirigo-Mosobeti road at Motagara within Nyamira County, being the driver of motor vehicle Registration No. KAG 960M Nissan Diesel UD Lorry drove the said motor vehicle on a public road without valid inspection sticker.
He also faced a second count of failing to maintain parts and equipment contrary to Section 55 (1) as read with Section 58 (1) of the Traffic Act Cap 403 and the third count of driving a motor vehicle without an Insurance cover contrary to Section 4 (1) as read with Section 4 (2) of the Third Party Risks Act Cap 405.
The Appellant denied the charges and the matter proceeded to a full trial in which the Prosecution presented the evidence of two witnesses. After trial, he was convicted on the first and second counts and sentenced to pay a fine of Kshs. 20,000/= on each count or, in default, to serve 6 months’ imprisonment. He was however acquitted on the third count.
He filed this appeal challenging the sufficiency of evidence, burden of proof, contradictions in the prosecution case, reliance on inadmissible evidence and excessiveness of the sentence.
As the first appellate court, I am required to re-evaluate the evidence presented before the trial court afresh with a view to arriving at my own independent findings while bearing in mind the fact that I did not see or hear the witnesses testify. In the case of Kiilu & Another vs. Republic [2005]1 KLR 174 it was held thus: -
“It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
A summary of the Prosecution’s case, as presented by the two witnesses, was as follows: - PW1, Fredrick Omondi Oalo Principal at the Motor Vehicle Centre in Kisii/Nyamira. Produced a report (P.Exh1) and prohibition order (P.Exh2) regarding lorry KAG 960M inspected on 26 th August 2021. The report was authored by one Mr. Onyango , who had since retired. He testified that the lorry was found to be defective and a prohibition order was issued.
PW2: PC John Kyalo testified on behalf of the investigating officer and stated that a report was made on 8 th August 2021 that the Appellant was ferrying stolen construction materials using the said lorry. He stated that the police traced the lorry which had been abandoned at Mosobeti area. The Lorry was towed to Nyamira Police Station where it was declared defective after inspection. The Appellant later reported to the station, was arrested, released on bail, then allegedly absconded before being rearrested and charged.
Defence Case
When place on his defence, the Appellant (DW1) admitted that he was the lorry’s driver but stated that it had broken down in July 2021 due to a faulty clutch kit and was parked at a roadside garage. He denied driving it on 8 th August 2021and explained that he was summoned by police on 9 th August and arrested after which he paid Kshs. 10,000/= cash bail (receipt produced as D.Exh1). He insisted the vehicle was still at the police station and that towing fees were demanded but that he was never notified before it was towed.
DW2, Antony Ndemo Gichana , testified that the lorry was towed to the police station on 8 th August 2021 without prior notice. He was informed that the lorry had ferried stolen stones and was detained. He confirmed the vehicle had mechanical problems and had been grounded since 27 th July 2021.
Issues for Determination
I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issues for determination are as follows: -
Whether the prosecution proved the charges against the Appellant beyond reasonable doubt.
Whether the trial court improperly shifted the burden of proof to the Appellant.
Whether contradictions and gaps in the prosecution case rendered the conviction unsafe.
Whether the sentence was lawful and proportionate.
Analysis
On proof of offence, I note that the prosecution relied heavily on PW1’s inspection report and PW2’s testimony. PW1 confirmed that the lorry was mechanically defective and that a prohibition order had been issued. It is however instructive to note that PW1 did not author the report himself, but vouched for his retired colleague’s handwriting. Under Section 35 Evidence Act, secondary evidence is admissible if proper foundation is laid, but questions will however arise on the weight of such testimony where the maker is absent.
On the identity and possession of the lorry as at 8 th August 2021, I note that while PW2 claimed that the police pursued the lorry and found it abandoned at Mosobeti, implying it was being driven, DW1 and DW2 testified consistently that the lorry was grounded from 27 th July 2021 due to a broken clutch kit. I find that the Appellant’s version of the status of the lorry at the time in question, if true, undermines the allegation that it was actively ferrying stolen materials on 8 th August. It is also instructive to note that the alleged stolen stones were not produced as as exhibits, nor were the alleged owners of the stolen property called to testify.
The defence also raised the issues of contradictions and burden of proof which I find to be valid. For instance, lack of notice before towing, late issuance of prohibition order, and inconsistency between alleged use of the lorry and its mechanical condition. It would appear that the trial court required the Appellant to disprove driving the lorry on 8 th August, contrary to the principle in Woolmington vs. DPP [1935] AC 462 where it was held that the burden of proof rests on prosecution.
I also anchor my findings on the case of Federal Court of United States in the case of United States vs. Smith, 267 F. 3d 1154, 1161 (D.C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring) where it was held thus: -
“….A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”
Similarly, in Ajwang vs. Republic (1983) KLR 337 , it was held thus: -
“the burden of proving the ingredients of the offence are entirely on the prosecution and the accused cannot be called upon to prove his innocence.”
In Keter vs. Republic [2007] 1 EA 135 , the Court held that minor discrepancies can be overlooked, but material inconsistencies, such as whether a vehicle was even in a running condition, must be resolved in favour of the Appellant. For the reasons that I have stated in this judgment, I find that the Appellant’s conviction was not safe.
Sentence
On sentence, the offence carries a fine or imprisonment. The trial court imposed fines of Kshs. 20,000/= per count or in default, 6 months imprisonment. My take is that while the sentence is lawful, the question of excessiveness depends on whether conviction was proper.
In the final analysis, while I find that the prosecution proved that the lorry was defective (through PW1), it failed to prove, beyond reasonable doubt, that the Appellant was in control of it on 8 th August 2021 or that it was used to commit theft as alleged.
The contradictions regarding the mechanical state, absence of exhibits, and non-production of key witnesses left significant doubt, that must be resolved in the Appellant’s favour.
In conclusion, I find that the instant appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence. The Appellant shall be set at liberty unless otherwise lawfully held. In the event that he paid the fine imposed by the trial court, I direct that the amount paid be refunded to the Appellant
Orders accordingly.
'
The Appellant was charged with the offence of driving a motor vehicle on a public road without inspection sticker contrary to Section 17A (3) (a) as read with Section 29 of the Traffic Act Cap 403. The particulars of the charge were that on 8 th August 2021 along Kebirigo-Mosobeti road at Motagara within Nyamira County, being the driver of motor vehicle Registration No. KAG 960M Nissan Diesel UD Lorry drove the said motor vehicle on a public road without valid inspection sticker.
He also faced a second count of failing to maintain parts and equipment contrary to Section 55 (1) as read with Section 58 (1) of the Traffic Act Cap 403 and the third count of driving a motor vehicle without an Insurance cover contrary to Section 4 (1) as read with Section 4 (2) of the Third Party Risks Act Cap 405.
The Appellant denied the charges and the matter proceeded to a full trial in which the Prosecution presented the evidence of two witnesses. After trial, he was convicted on the first and second counts and sentenced to pay a fine of Kshs. 20,000/= on each count or, in default, to serve 6 months’ imprisonment. He was however acquitted on the third count.
He filed this appeal challenging the sufficiency of evidence, burden of proof, contradictions in the prosecution case, reliance on inadmissible evidence and excessiveness of the sentence.
As the first appellate court, I am required to re-evaluate the evidence presented before the trial court afresh with a view to arriving at my own independent findings while bearing in mind the fact that I did not see or hear the witnesses testify. In the case of Kiilu & Another vs. Republic [2005]1 KLR 174 it was held thus: -
“It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
A summary of the Prosecution’s case, as presented by the two witnesses, was as follows: - PW1, Fredrick Omondi Oalo Principal at the Motor Vehicle Centre in Kisii/Nyamira. Produced a report (P.Exh1) and prohibition order (P.Exh2) regarding lorry KAG 960M inspected on 26 th August 2021. The report was authored by one Mr. Onyango , who had since retired. He testified that the lorry was found to be defective and a prohibition order was issued.
PW2: PC John Kyalo testified on behalf of the investigating officer and stated that a report was made on 8 th August 2021 that the Appellant was ferrying stolen construction materials using the said lorry. He stated that the police traced the lorry which had been abandoned at Mosobeti area. The Lorry was towed to Nyamira Police Station where it was declared defective after inspection. The Appellant later reported to the station, was arrested, released on bail, then allegedly absconded before being rearrested and charged.
Defence Case
When place on his defence, the Appellant (DW1) admitted that he was the lorry’s driver but stated that it had broken down in July 2021 due to a faulty clutch kit and was parked at a roadside garage. He denied driving it on 8 th August 2021and explained that he was summoned by police on 9 th August and arrested after which he paid Kshs. 10,000/= cash bail (receipt produced as D.Exh1). He insisted the vehicle was still at the police station and that towing fees were demanded but that he was never notified before it was towed.
DW2, Antony Ndemo Gichana , testified that the lorry was towed to the police station on 8 th August 2021 without prior notice. He was informed that the lorry had ferried stolen stones and was detained. He confirmed the vehicle had mechanical problems and had been grounded since 27 th July 2021.
Issues for Determination
I have carefully considered the record of appeal and the parties’ respective submissions. I find that the main issues for determination are as follows: -
Whether the prosecution proved the charges against the Appellant beyond reasonable doubt.
Whether the trial court improperly shifted the burden of proof to the Appellant.
Whether contradictions and gaps in the prosecution case rendered the conviction unsafe.
Whether the sentence was lawful and proportionate.
Analysis
On proof of offence, I note that the prosecution relied heavily on PW1’s inspection report and PW2’s testimony. PW1 confirmed that the lorry was mechanically defective and that a prohibition order had been issued. It is however instructive to note that PW1 did not author the report himself, but vouched for his retired colleague’s handwriting. Under Section 35 Evidence Act, secondary evidence is admissible if proper foundation is laid, but questions will however arise on the weight of such testimony where the maker is absent.
On the identity and possession of the lorry as at 8 th August 2021, I note that while PW2 claimed that the police pursued the lorry and found it abandoned at Mosobeti, implying it was being driven, DW1 and DW2 testified consistently that the lorry was grounded from 27 th July 2021 due to a broken clutch kit. I find that the Appellant’s version of the status of the lorry at the time in question, if true, undermines the allegation that it was actively ferrying stolen materials on 8 th August. It is also instructive to note that the alleged stolen stones were not produced as as exhibits, nor were the alleged owners of the stolen property called to testify.
The defence also raised the issues of contradictions and burden of proof which I find to be valid. For instance, lack of notice before towing, late issuance of prohibition order, and inconsistency between alleged use of the lorry and its mechanical condition. It would appear that the trial court required the Appellant to disprove driving the lorry on 8 th August, contrary to the principle in Woolmington vs. DPP [1935] AC 462 where it was held that the burden of proof rests on prosecution.
I also anchor my findings on the case of Federal Court of United States in the case of United States vs. Smith, 267 F. 3d 1154, 1161 (D.C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring) where it was held thus: -
“….A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”
Similarly, in Ajwang vs. Republic (1983) KLR 337 , it was held thus: -
“the burden of proving the ingredients of the offence are entirely on the prosecution and the accused cannot be called upon to prove his innocence.”
In Keter vs. Republic [2007] 1 EA 135 , the Court held that minor discrepancies can be overlooked, but material inconsistencies, such as whether a vehicle was even in a running condition, must be resolved in favour of the Appellant. For the reasons that I have stated in this judgment, I find that the Appellant’s conviction was not safe.
Sentence
On sentence, the offence carries a fine or imprisonment. The trial court imposed fines of Kshs. 20,000/= per count or in default, 6 months imprisonment. My take is that while the sentence is lawful, the question of excessiveness depends on whether conviction was proper.
In the final analysis, while I find that the prosecution proved that the lorry was defective (through PW1), it failed to prove, beyond reasonable doubt, that the Appellant was in control of it on 8 th August 2021 or that it was used to commit theft as alleged.
The contradictions regarding the mechanical state, absence of exhibits, and non-production of key witnesses left significant doubt, that must be resolved in the Appellant’s favour.
In conclusion, I find that the instant appeal is merited and I therefore allow it by quashing the conviction and setting aside the sentence. The Appellant shall be set at liberty unless otherwise lawfully held. In the event that he paid the fine imposed by the trial court, I direct that the amount paid be refunded to the Appellant
Orders accordingly.
'