1. The Appellant herein was charged with the offence of causing death by dangerous driving contrary to Section 46 of the Traffic Act Cap 403 Laws of Kenya. The charge sheet states that on 6th November, 2020, about 08:30 am. at Kwa Mugweru area along Giagatika – Tumutumu Hospital road within Mathira Sub County of Nyeri County being the driver of Motor vehicle Registration No. KCP 321T, make Nissan Lafesta, drove the said motor vehicle on the said road without due care and consideration without reasonable consideration for other persons using the road and hit a motor cycle Registration No. KMEL 926E make Shinnery causing the death of Samuel Macharia Munyi, the rider.
The Prosecution Case
2. The prosecution in support of their case lined up three witnesses. He was convicted of the charge and fined Kshs. 100,000/= or 12 months’ imprisonment. Dissatisfied with the decision of the trial court, he appealed to this court challenging both the conviction and sentence of the trial court.
3. On his behalf it is submitted that there were a number of inconsistencies in the prosecution witnesses accounts and the reliance of circumstantial evidence in making the final determination.
4. It was submitted that PW3 testified that on 6th November, 2020, received a report from the appellant of an accident that had occurred at a place called Kamwegeru along Tumutumu Hospital Road. He detained the said vehicle and proceeded to the scene the following day where he found the scene had been disturbed which prompted them to use the road view. He formed an opinion that it was the driver of M/V KCP 321T that failed to give way to an on-coming motor vehicle.
5. On cross-examination, PW1 said it was clear that the vehicle had sustained impact from the left as it was hit by the on-coming speeding motorcycle. He formed an opinion and blamed the appellant for not giving way to the said accident which caused the accident.
6. The Appellant testified that he was turning to the feeder road on his right. He further argued that it is not easy to see beyond 50 meters towards Tumutumu while at the junction. He testified that it was the motor-cycle that hit his car when parked and that the motorcycle did not break at all. They did not call additional witnesses and closed their case.
7. It was further submitted that there was no direct evidence on the culpability of the appellant arising from his not having due care and attention to other road users. There were glaring inconsistencies on the point of impact especially to the appellant’s vehicle form the accident. It was also impracticable to the speed of the motor vehicle vis a vis that of the motor-cycle.
8. The Appellant argued that all the aspects of visibility being poor, and there being a sharp corner was not considered by the trial court leading it to consider circumstantial evidence. It was further submitted that there was no evidence that it was actually the Appellant’s vehicle that hit the deceased as this was denied by the Appellant. There was also inconsistency in the evidence of PW3 as regards the causation of the accident at the point of impact. It was therefore submitted that there was no proof that the Appellant drove the vehicle without due car e and attention as there was no evidence that he drove without due care and attention hence the charges in Counts 1 could not be sustained.
9. The contradictory evidence presented before the trial court if discounted leaves no independent evidence which can sustain a conviction and as was held by the Court of Appeal in Ngure vs Republic [2003] EA.
“The mere occurrence of an accident alone is not enough to prove a charge of causing death by dangerous driving under section 46 of the Traffic Act. Evidence must disclose a dangerous situation and the driver must be shown to be guilty of a departure from the normal standard of driving which would be expected of a reasonably prudent driver.” In considering state of the prosecution evidence, it is our submission that the same fell short of thee standard expected in order to sustain the said offence.
The appellant also cited the case of Atito vs Republic [ 1975] EA 278, where the Court of Appeal dealt with a case in which the appellant had been convicted for the offence of dangerous driving resulting in the death of two persons. At page 280 the court said:
“The question in this case is whether the appellant took avoiding action at all, or in good time, and whether by not taking this action, or delaying taking it unduly, he caused a dangerous situation to arise for whose consequences he is criminally liable.”
10. It is not in dispute that the accident occurred. PW3 the investigating officer confirms that the appellant reported the accident about five days after the accident occurred. After receiving the report they immediately visited the scene and prepared a road view. This was produced as Ext 3 alongside the legends and measurements. He told the court that due to the lapse of time, the scene had been disturbed but he was able to identify the point of impact with the help of the Appellant. PW3 told the court that he detained the Appellant’s motor vehicle and he was able to see some damages on its’s left side. PW2 was Dr. Stephen Nderitu who conducted postmortem on the body of the rider. He told the court that the cause of death was a severe head injury and limb injuries complicated by pulmonary embodying.
His final conclusion was that the injuries were consistent with a road traffic accident.
11. The evidence of PW3 and the admission of the appellant is consistent with the fact that the accident occurred on the motorcycle’s lane. The appellant decided to make a turn onto a feeder road on his right to enable him to reverse back into the main road. However, before doing so he never ensured that the highway was clear and that there were no oncoming motor vehicles on the main road. It is evident that he drove his motor vehicle on a public road without exercising due care and attention. The driver was not at fault at all. The appellant’s defence that the rider should have stopped for him was not plausible at all. The rider had right of way as he is the one who on the main highway/road.
12. The prosecution was able to show that the appellant drove his motor vehicle in a manner dangerous to the public and other road users having regard to all circumstances of the case, the nature, condition and use of the road and the amount of traffic that was reasonably expected to be on the road. The circumstantial evidence was properly analyzed and the conviction was safe. I agree with the trial courts finding that if the vehicle had turned into the feeder road, there is no way it could have been damaged on the left side as recorded. The appellant was not keeping a proper look out and turned in when it was not safe to do so and he caused the death of the of the deceased. Dead men tell no tales but fortunately, the keen investigator connected the dots and the trial court did the proper thing in convicting him.
Appeal on sentence
13. Upon conviction the learned trial magistrate sentenced the appellant to pay a fine of Kshs. 100,000/= and in default to serve one-year imprisonment. I find that the said penalty was commensurate to the charges he was facing. The Appellant was accorded a chance to mitigate though his counsel and the same was noted by the court.
Conclusion
14. The evidence on record was enough to sustain a conviction for the offence as charged. The evidence was cogent and consistent. Though there were no eye witnesses called during trial, the circumstantial evidence was strong enough to link the Appellant to the charge. The appellant did not deny having been involved in the road traffic accident. His admission during trial was consistent with the evidence of the prosecution witnesses.
15. The prosecution proved its case beyond reasonable doubt and that the appellant was rightly convicted by the trial court. Both the conviction and the sentence are upheld.
16. The appeal is dismissed.
17. It is so held
DELIVERED, DATED and SIGNED at MOMBASA on this 31ST……. day of July, 2024. Judgment delivered through Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:-
NO appearance the Appellant
Ms Kiuna…and Ms Maina………………. for the Respondent.
Court Assistant - ……Bebora…………………..