Kariuki v Republic

High Court, at Machakos

June, 28 1988

Torgbor J

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.

Held:

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.

Cases

1. R v Gosney [1971] 3 All ER 220

2. R v Guilfoyle [1973] 2 All ER 844

3. Orweryo Missiani v R [1979] 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)

Statutes

Traffic Act (cap 403) section 46

Advocates

Nduda & Co Advocates for the Appellant

Nyaga for the Respondent

Mwangi & another v Republic

High Court, at Machakos

 May 24, 1988

Torgbor J

Criminal Appeals Nos 232 & 233 of 1987 (Consolidated)

(Appeals from Convictions and Sentences of the District Magistrate’s Court at Kangundo)

Criminal Practice and Procedure – charge – joinder of offences in a charge – charge combining two separate offences in one count – whether charge bad in law – whether particulars of the offences may be relied on to remedy defect in the charge – whether defect in charge causing prejudice to the accused persons.

Evidence – evidence of a single witness - recognition evidence – how court should treat such evidence – when proper for a court to convict on such evidence.

The appellants were convicted and sentenced on a charge which read:

“Kiosk breaking and stealing contrary to section 306 of the Penal Code and stealing contrary to section 279 of the Penal Code”

and thereafter gave the particulars of the offences.

On appeal, state counsel said the charge was bad because it combined two separate offences into one count.

The appellants argued that they had not been properly identified and that the trial magistrate had failed to warn himself of the necessity of corroborating the identification evidence of the complainant.

The complainant had, in her testimony, stated that the appellants were previously known to her and that she had observed them committing the offences on the material night.

Held:

1. It is desirable where different offences are committed to draft the charge in relation to those offences under separate and distinct counts so that the accused person knows precisely what he is to defend himself against.

2. In this case, it was clear from the charge that two distinct charges had been framed in one count but the charge was not thereby rendered bad in law. The offences disclosed were fully described in the particulars of the charge.

3. When that charge and the particulars were read to the appellants, they must have fully understood the offence upon which they were to defend themselves. No prejudice of any sort was caused to the appellants by reason of the poorly drafted charge.

4. When faced with the recognition evidence of one witness, it is the duty of the court to satisfy itself that in all circumstances, it would be safe to act on such evidence. What is needed in such a case is other evidence, whether circumstantial or direct, pointing to guilt from which a court can reasonably conclude that the evidence, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.

5. In the instant case, it had not been shown that the conditions for identification of the appellants were difficult and moreover, this was a case of recognition of the appellants as persons who had been previously known to the complainant.

6. In the circumstances, the Court would show some leniency to the appellants and impose a term of imprisonment for two years on each of them.

Appeal dismissed, sentences varied.

Cases

1. Roria v Republic [1967] EA 583

2. Abdalla bin Wendo v R (1953) 20 EACA 166

Statutes

Penal Code (cap 63) sections 279, 306

Advocates

Masika for the Appellant

Mr Nyaga, Principal StateCounsel, for the Respondent