Kariuki V Republic EKLR
|Crimnal Appeal 341 of 1987||28 Jun 1988|
Edward Nii Adjar Torgbor
High Court at Machakos
Kariuki v Republic
Kariuki v Republic eKLR
Kariuki v Republic
High Court, at Machakos
June, 28 1988
Criminal Appeal No 341 of 1987
(Appeal from Conviction and Sentence of the Resident Magistrate’s Court at Kitui)
Criminal Law – causing death by dangerous driving – Traffic Act (cap 403) section 46 – nature of the offence – how offence proved – accused attempting to overtake on a descent on a murram road – accident resulting in the death of two persons – whether accused reckless – whether conviction and sentence of two years’ imprisonment proper.
The appellant was convicted on two counts of causing death by dangerous driving under the Traffic Act (cap 403) section 46 and he was sentenced to concurrent terms of two years’ imprisonment. His driving licence was suspended for a period of three years after imprisonment.
He appealed against the decision arguing that the trial magistrate had erred in rejecting his defence and that the sentence imposed on him was excessive.
Several witnesses had testified that he had been driving downhill at a speed ranging from 60-80 Kph. The appellant stated that he had been overtaking a vehicle when his vehicle touched the corrugation on the right side of the road causing the vehicle to spin and swerve to the left. He added that the brakes of the vehicle could not hold the ground because of loose soil and the gradient.
1. The offence of dangerous driving was not an absolute offence and to justify a conviction, there must be not only a situation which, when viewed objectively, was dangerous but also some fault on the part of the driver causing that situation.
2. Fault involved a failure, a falling below the care and or skill of a competent and experienced driver in relation to the manner of the driving and to the relevant circumstances of the case.
3. On the evidence, the appellant had been driving dangerously and the accident would not have occurred had he exercised caution in overtaking
the other vehicle while driving on a murram road. His standard of driving fell below the required standard of skill. His conviction was therefore proper.
4. The sentences on the two counts would be set aside and substituted with a fine of Shs 11,000 on each count or in default, concurrent sentences of imprisonment for twelve months.
Appeal against conviction dismissed but sentences varied.
1. R v Gosney  3 All ER 220
2. R v Guilfoyle  2 All ER 844
3. Orweryo Missiani v R  KLR 285
4. Njuguna Kabanya v R Criminal Pension Case No 97 of 1979 (unreported)
5. Govind Shamji v R Criminal Appeal No 30 of 1975 (unreported)
Traffic Act (cap 403) section 46
Nduda & Co Advocates for the Appellant
Nyaga for the Respondent