bidan ndwiga mbogo VS The Republic bidan ndwiga mbogo VS The Republic

(Appeal arising from the decision of Hon. J. Otieno (SRM) in the Magistrate’s Court at Embu Traffic Case No. E108 of 2022 delivered on 2^nd October, 2023)

The appellant herein was charged with three counts. The first two counts were on causing death by dangerous driving contrary to section 46 of the Traffic Act Cap 403 Laws of Kenya. The particulars of the first count were that on the 25^th day of December, 2021 at about 0700 hours along Kianjokoma tea buying centre within Embu County, being the driver of motor vehicle registration number KBX 135 P Toyota Saloon drove the said motor vehicle on the said road recklessly in a manner which is 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 might reasonably expected to be on the road and without consideration for other road users knocked down a pedestrian namely Samuel Jacob Kimathi who was pronounced dead upon arrival at Kianjokoma Level (3) Hospital. The particulars of the 2^nd Count were the same save for the name of the pedestrian who is named as Alex Kariuki. On the third Count, he was charged with the offence of driving a motor vehicle without due care and attention contrary to section 49 (1) amendment number 2 of the Traffic Act Cap 403 Laws of Kenya. The particulars of the charge were that; on the 25^th day of December, 2021 at about 0700 hrs along Kianjokoma Irangini road near Kianjokoma tea buying centre, within Embu County, being the driver of motor vehicle registration number KBX 135 P make Toyota saloon drove the said motor vehicle on the said road without due care and attention and without consideration for other road users knocked down and injured a pedestrian namely Clement Mutugi.
At the trial the appellant pleaded “not guilty” to the charge and the case proceeded to full hearing and subsequently, he was convicted and fined Kshs.150,000 and in default one (1) year imprisonment in Counts 1 and 2 but was acquitted in Count 3.
He was dissatisfied with the decision of the trial Court and filed a petition of appeal dated the 10^th day of November, 2023 seeking orders that the appeal be allowed and both the conviction and the sentence be set aside. The appeal is premised on the following grounds;
The learned Magistrate erred in law and in fact by sentencing the appellant on a defective charge sheet.
The learned magistrate erred in law and in fact by failing to follow the right procedure in substitution of the charges, thus denying him a fair trial.
The learned magistrate failed to consider that there were material contradictions and inconsistences that undermined the prosecution’s case.
That the learned magistrate failed to take into account the mitigation that was put forth, by the appellant.
The learned magistrate erred in law and in fact by imposing an excessive sentence on the appellant.
The learned magistrate erred in law and in fact by failing to request for victim’s impact assessment report.
At the trial, PW1, Njeru Samuel stated that on the 25/12/2022 his son Jacob Kimathi attended a Christmas Service. Later, he received a call that his said son had been involved in an accident near the Catholic Church, Kianjokoma. He rushed to the scene and found a pool of blood. On the road, a motor vehicle registration number KBX 135 P was on a culvert on the left side of the road. That he learnt that the vehicle had hit both Jacob and Alex. He rushed to Kianjokoma Hospital where the victims had been rushed and found they had already died.
PW2, Peter Njeru the father to Alex Kariuki stated that he identified the body of his son at Gakwegori Hospital to the doctor who carried out the post-mortem.
PW3, Dr. Geoffrey Njiru conducted the post-mortem on the bodies of Alex Kariuki and Jacob Kimanthi who had multiple injuries. On examination, Alex Kariuki had multiple cut wounds on the skull, blunt chest contusion, fracture of the Humerus bone, fracture of the 4^th, 5^th and 6^th ribs with massive bleeding on the chest well, Segmental fracture on the skull bone subdural hematoma and bleeding on the brain system. In his opinion the death was caused by severe head injury.
On the part of Jacob Kimanthi Njeru, he had a cut wound on the head, confusion on the chest interior, fracture of the 2^nd, 3^rd and 4^th regular ribs, massive bleeding in the right chest cavity, fracture frontal skull bone, mild contusion injury and frontal robe of the brain. In his opinion, the cause of death was failure to breath well, due to bleeding on the chest cavity and right lung and other injuries due to road traffic accident.
PW4, Andrew Wasonga is a Principal motor vehicle inspector at NTSA, Embu. On the 30/12/2021, he inspected motor vehicle registration number KBX 135 P and found it not to have had pre-accident damage. He prepared a certificate of motor vehicle inspection which he produced as exhibit -3.
PW5, James Kariuki Njeru, stated that he was on his way from delivering milk at Kianjokoma riding motorcycle KMDU 807 B when he saw a motor vehicle on top of two boys. The vehicle was opposite St. Joseph Catholic Church Kianjokoma and the boys were on a culvert off the road pinned down by the front of the vehicle. He stopped and assisted in pulling the vehicle. The boys were seriously injured and were bleeding profusely and a good Samaritan assisted in taking them to Hospital. In cross examination he stated that the accident was on the right side of the road.
PW6, P.C Rashid Boru stated that, he was in the office at Embu Traffic Base when he received a call from constable Gitonga about the accident. In the company of other officers, they went to the scene at Kanyakine tea buying centre and at the scene Toyota Salon KBX 135 P was off the road in a trench facing Iragini on the left side. They proceeded to Kianjokoma Hospital and were informed that the 2 boys had died. They escorted the bodies to Gakwegori Funeral home. They also received report of another victim who was at Embu Level (5) Hospital, namely Clement who was receiving treatment. His statement was recorded by constable Githinji. The driver of the subject motor vehicle was admitted at Kyeni Hospital and he later reported to the station and his witness statement was taken and was issued with notice of intended prosecution. The motor vehicle was inspected. On cross examination, he stated that the vehicles tyre had burst and it was drizzling.
PW7, P.C Leonard Githinji stated that he accompanied PW6 to the scene. His evidence was similar to that of PW6, to a large extent. He drew the sketch plan both rough and fair. He recorded the statement of Clement Mutugi who was also a victim in the same accident and he filled the occurrence book. He also recorded the statement of Kelvin Muriuki who stated that he helped the victims and helped to take them to hospital. He concluded that the driver of the subject motor vehicle lost control due to speeding and he charged him accordingly. That the driver lost control and hit three pedestrians who were walking on the road. He stated the town of Kianjokoma is 50 meters ahead from the scene and thus the driver ought to have exercised caution. It was his further evidence that the vehicle’s front tyres were deflated, the bumper and wind screen were damaged and from the sketch plan, the vehicle was 5.8 meters from the road and that there is a sharp corner at the scene and it was drizzling.
At the close of the prosecution’s case, the appellant was placed on his defence and he gave unsworn evidence and called no witnesses. He stated that on the material day, he was driving from Kianjokoma and upon reaching Kanyakine, he heard a loud bang and the steering locked. He later found himself in Hospital at Kyeni.
The trial Court analysed the evidence and found that the prosecution had proven its case beyond reasonable doubt and he was convicted and sentenced as stated elsewhere in this judgment.
In this appeal, the Court directed the parties to file their submissions and they both complied.
It was the appellants submission that the offence was not proven as required under the law. He relied on the cases of Timothy Orwenyo Misiani Vs. Republic (1979) KLR 285 and that of R Vs. Gosney (11971) A11 ER 220 on what constitutes the offence of dangerous driving. He further submitted that there was no eye witness and thus the evidence that was adduced by the prosecution witnesses amounted to hearsay. He cited the case of Benjamin Muikya Musyoki Vs. Republic where the Court held that:

“in order to justify a conviction on a charge of causing death by dangerous driving, there must have been a situation, which viewed objectively, was dangerous and also some fault on the part of the driver. That he was driving in an area near a town where there are many bumps and there is no way he could be over speeding and that the road is straight and clear and the visibility was clear”

The appellant also took issue with the prosecution’s failure to call the complainant in Count 3 as a witness in the case. He argued that the failure by the prosecution to call the said witness was prejudicial to him as his evidence could have been useful to the appellant’s case. He made reference to the case of Mwangi V. R (1984) KLR 595 to support that contention. He contended that in so doing, the prosecution was in breach of Article 157 (11) of the constitution which states that the prosecution is under obligation to disclose any evidence favourable to the defence if they come across such evidence in the course of their investigations. Reference was also made to section 4 of the office of Director of Public Prosecutions Act. He also submitted that there were material contradictions in the evidence that was adduced by the prosecution witnesses.
The appellant also took issue with the sentence which he stated was excessively harsh and not in line with the judiciary’s policy on sentencing, quoting the case of Govid Shamji Vs. Republic on the principles of sentencing.
On the part of the respondent, it was submitted that the trial court did not err in convicting and sentencing the appellant as it did. On the procedure of plea taking following the amendment of the charge sheet, it relied on section 214 of the Criminal Procedure Code and submitted that the same was followed. On fair trial, the prosecution urged that the appellant has not demonstrated the manner in which his right to a fair trial was denied, but to the contrary, all his rights to a fair trial were upheld in the entire course of the trial. On whether the charge sheet was defective, the prosecution relied on section 134 of the criminal procedure code on the information that every charge should contain and on the case of Benard Ombuna V R (2019) eKLR. It further submitted that the name of appellant was rectified to read Biden Ndwiga Mbogo instead of Diden Ndiga Mbogo. On whether it was erroneous for the trial Court not to request for the victim’s impact report, reliance was placed on section 329 (c) of the Criminal Procedure Code. The Court was also referred to section 12 of the Victims Protection Act. On the severity of the sentence, the prosecution urged that the same was within the law.
The issues for determination are as follows:
Whether the appellant was convicted and sentenced following a defective charge sheet.
Whether the case against the appellant was proved beyond reasonable doubt.
Whether the trial magistrate erred by not requesting for a victims’ impact assessment report.
Whether the sentence against the appellant was harsh and excessive.
This being a first appeal, this court is enjoined to analyse and re-evaluate afresh, all the evidence that was adduced at the trial and draw its own conclusion while bearing in mind that it neither saw nor heard the witnesses. See Okeno Vs. Republic (1972) EA 32. See also the case of Kiilu & Another Vs. Republic (2005) KLR where the Court of appeal held:

“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.

The appellant was charged with two counts of causing death by dangerous driving, and a third count of driving a motor vehicle without due care and attention. He was acquitted on the 3^rd count the trial Court having found that the same was not proven beyond reasonable doubt.
Section 46 of the Traffic Act Provides;

“ Any person who causes 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 a vehicle on the 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…”

It was the prosecution’s case that the appellant herein drove his motor vehicle KBX 135 P along Kianjokoma Iragini road in a reckless and dangerous manner as a consequence of which, he knocked down Samuel Jacob Kimathi and Alex Kariuki. PW1 and PW2 are the fathers of Samuel Kimathi and Alex Kariuki respectively and they both confirmed that the two were involved in the subject accident and died following the injuries that they sustained which injuries were confirmed by PW3, the pathologist who carried out the post-mortem on their bodies at Gakwegori Funeral home. He confirmed that the injuries were consistent with a road traffic accident. PW5 was riding his motorcycle KMDU 807 B along the subject road when he saw a vehicle on top of two boys. This was opposite St Joseph Catholic Church, Kianjokoma. The boys were on a culvert off the road and were pinned down by the front of the vehicle. He stopped and assisted in pulling the vehicle which had turned the other way.
From the evidence of PW5, it is clear that the accident happened off the road noting that the boys were on a culvert off the road. Though the appellant has decried the fact that there was no eye witness, the investigating officer who testified as PW7 gave some useful evidence in the trial Court. He visited the scene and drew a sketch plan of the scene. According to him, there were no marks or blood stains on the road to indicate pedestrians were walking on the road. Further, the town of Kianjokoma is about 50 meters ahead and the appellant was expected to exercise caution as he was approaching a town. He concluded that the appellant must have lost control due to speeding and made his decision to charge him with the offences of causing death. That it was a blind corner and the appellant was expected to be more careful and drive at a low speed. This evidence corroborated that of PW3 notwithstanding that he was not an eye witness. His evidence points to the fact that the accident occurred off the road and going by the severity of the injuries that were sustained by the two people who died, it is safe to conclude that the appellant must have been over speeding.
In his defence, the appellant attributed the accident to a tyre burst. Even assuming that the accident was caused by a tyre burst, having regard jto all the circumstances of the case including the nature and the condition of the road as explained by the investigating officer, it is my considered view that if he was driving at a reasonable speed, he could have safely controlled the vehicle and brought it to a halt even after the tyre burst. He was approaching a town where the speed limit is not more than 50 kph, which is a safe speed in case of any emergency or in case of a tyre burst like what may have happened, if at all.
The appellant also raised issues on the charge sheet to wit: that his name and the date of the accident were not captured properly. Section 134 of the Criminal Procedure Code provides;

“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged”.

The Court of appeal in the case of Benard Ombura Vs. Republic (2019) eKLR laid down what a charge sheet should contain as thus:

“In a nutshell, the test of whether a charge sheet is defective is substance rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result he was not able to put an appropriate defence”.

The court has perused the record and I note that his name that had been indicated as Diden Ndiga Mbogo was corrected on the 2^nd May, 2023 to reflect Biden Ndwiga Mbogo.

Further, on the issue of the amendment of the chargesheet and the Court having failed to read over to him the amended charge sheet, the Court confirms that the same was done and he answered to the amended charge sheet as required under section 214 of the Criminal Procedure Code and therefore, the appellant was not denied the right to a fair trial as alleged.

On whether the trial magistrate erred for failing to request for a victim’s impact assessment report, the answer to this is in Section 329 C of the Criminal Procedure Code which provides:
If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences an offender”.
Section 329 D. provides (1) The giving of a victim impact statement is not mandatory. (3) The absence of a victim impact statement shall not give rise to any inference that an offence had little or no impact on the victim”
Similarly, Section 12 of the victim protection Act provides;

A victim of a criminal offence may make a victim impact statement to the Court sentencing the person convicted of the offence, in accordance with section 329 C of the Criminal Procedure Code and that statement may be considered by the Court in determining the sentence of the offender. (2) If the victim expresses wish to make a victim impact statement; a prosecution agency shall refer the victim’s services agency for assistance in preparing the victim impact statement”

From my reading of the above provisions, it is my considered view that the need or lack thereof to request for a victim impact assessment report is discretionary and not a mandatory procedure. Failure to do so is not fatal to the proceedings and it does not affect the decision rendered by the trial Court. However, I would like to add that, it is a good practice that should be embraced by the trial Courts.

On mitigation and the circumstances surrounding the accident, the trial magistrate considered the same and noted that the appellant was remorseful and that he was a first offender. The trial Court went a step further and noted that the victims have a recourse in a civil court for damages. It is not, therefore, true that the court did not consider the mitigation by the appellant.
On sentence, the principles upon which a Court can interfere with sentence imposed by a trial court were discussed in the case of Robert Mutugi Muumbi Vs. Republic (2015) eKLR where the Court of appeal cited with approval the case of Benard Kimani Gacheru Vs. Republic CR. App. No.188 of 2000 (Nakuru) where it held;

“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if the appellate Court might itself not have passed the sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist.

In the present case, the appellant has not shown how the sentence is harsh and excessive. It has not convinced this Court that the trial Court overlooked some material factor or took into account some wrong material and acted on the wrong principles.
Under section 49 of the Traffic Act, the penalty provided therein is imprisonment of not more than ten (10) years. The sentence is reasonable and this court has no reason to interfere with it.
In the premises, I find that the appeal has no merit on both the conviction and the sentence. The same is hereby dismissed.
It is so ordered.

Delivered, dated and signed at Embu this 28^th day of August, 2024.