Okech v Republic

High Court, at Kisii December 19, 1990

VV Patel J

Criminal Appeal No 198 of 1990

(From original conviction and sentence of the Seenior Resident Magistrate’s Court at Homa-Bay in Traffic Case No 635 of 1990, Nderu Njuguna Esq Ag RM)

Criminal Law – dangerous driving – test to determine whether a person is guilty of dangerous driving – whether the test is objective.

Evidence – witness – evidence of a single witness – how the court should treat such evidence – when evidence of a single witness may be used to convict.

The appellant was convicted of dangerous driving. At the material time, the appellant had passengers in his car but none of them were called to testify. A single eyewitness said she saw the appellant knocking down a cyclist who died instantly. During cross-examination, the witness said that the appellant’s vehicle and the cyclist were moving in the same direction. During re-examination, however, she said the cyclist emerged from a sidetrack.

The appellant denied the charge and said that he applied his brakes but there being very little distance between his motor vehicle and the cyclist who suddenly emerged from a side road, he hit the deceased. The appellant pointed out that the trial magistrate failed to direct his mind properly to the evidence before him.

The respondent submitted that the evidence established that the manner of the appellant’s driving was dangerous in the circumstances prevailing at the time. There was clear visibility and the appellant hit the cyclist in front of him.

Held:

1. If a driver adopts a manner of driving which is dangerous to other road users in all circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his competent best.

2. When a court is confronted with the testimony of a single witness in support of a charge, it has to be extremely careful in relying on that testimony without warning itself on the dangers in recording a conviction on such evidence by itself. The Court may convict on a sole testimony if the quality thereof were to be sound.

3. In the instant case the respondent did not call other witness to testify and the evidence of the only eyewitness was self-contradictory.

Appeal allowed.

Cases

Regina v Evans [1963] 1 QB 412; [1962] 3 All ER 1086; [1962] 3 WLR

1457; 47 Cr App Rep 62

Statutes

Traffic Act (cap 403) section 46

Advocates

Mr G Maseso for the Appellant.

Mr M Bwonwonga for the Republic.

Republic v Yiende

High Court, at Kisii May 21, 1990

VV Patel J

Criminal Case No 16 of 1990

Evidence – Dying declaration – admissibility of dying declaration in evidence – when a dying declaration qualifies to be admitted into evidence – where a dying declaration is used to support a conviction – whether the declaration needs to be corroborated – requirement to exercise caution before using a dying declaration as the sole basis for a conviction – value of a dying declaration in evidence.

The accused was charged with the murder of his younger brother. Another one of the accused’s younger brothers gave evidence that on the material day, he returned home from work and found the deceased lying on the floor bleeding from his head, hands and legs.

The deceased told his brother that he had found their elder brother (the accused) trying to break the door of the house. He called the accused a thief as he had not asked for the keys to the house. The accused then hit him with a metal bar then ran away.

In his defence, the accused said that the deceased fell on some stones and injured his head. The accused submitted that he then went to look for a vehicle to take the deceased to a hospital.

Held:

1. Any statement made by a deceased is admissible as a dying declaration if it is established that it was made by him when he was in immediate expectation of death and had lost every hope of living.

2. It is not required in law, in order to support a conviction, that a dying declaration must be corroborated. There is need for exercising caution though before a conviction is based solely on it.

3. A dying declaration is the weakest of all evidence. It must be remembered that it is made in the absence of the accused and is not subjected to cross-examination.

4. In the instant case, the evidence fails to establish that the deceased made a statement when he was under the solemn belief of impending death.

Accused acquitted.

Cases

No cases referred to.

Statutes

No statutes referred.

Advocates

Mr G Masese for the Appellant.

Mr Karanja for the Republic.