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|Case Number:||Criminal Appeal Case 8 of 2015|
|Parties:||Gilbert Kiptum Ngetich v Republic|
|Date Delivered:||19 Oct 2015|
|Court:||High Court at Nyamira|
|Judge(s):||Nagillah Chrispin Beda|
|Citation:||Gilbert Kiptum Ngetich v Republic  eKLR|
|Case History:||(Appeal arising from the judgment of [Mr. J. Macharia, Ag.P.M] in Keroka Traffic Case No. 560 of 2011)|
|History Docket No:||Traffic Case No. 560 of 2011|
|History Magistrate:||Mr. J. Macharia, Ag.P.M|
|Case Outcome:||Appeal allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CRIMINAL APPEAL CASE NO. 8 OF 2015
GILBERT KIPTUM NGETICH……........................….APPELLANT
(Appeal arising from the judgment of [Mr. J. Macharia, Ag.P.M] in Keroka Traffic Case No. 560 of 2011}
The Appellant Gilbert Kiptum Ngetich was convicted of causing death by dangerous driving contrary to Section 46 of the Traffic Act, Cap 403 of the Laws of Kenya.
The particulars of the offence were that on the 21st day of October, 2011 at about 1300 hrs along Keroka Sotik road at Nyaronde area in Masaba District within Nyanza Province being the driver of motor vehicle registration No. KBM 568Z Toyota Hilux Double Cabin drove the said vehicle on the said road at a speed having regard to all circumstances of the case including the nature condition and use of the road and amount of the traffic which is Actually at the same time or which might be reasonably expected to be on the road and knocked down one Amos Nyauma aged 5 years who died on the spot.
The appellant pleaded not guilty and his trial commenced before Keroka Magistrate Court at Keroka before Hon. J. Macharia. He was found guilty and convicted and sentenced to 2 years imprisonment, on 17.04.2013.
The appellant being aggrieved and dissatisfied has now appealed against both conviction and sentence.
He relies on ten (10) grounds. They are:-
The appellant’s submissions.
The prosecution witnesses were five (5) in number. However, only two, PWI and PWIII, appear relevant to this appeal.
PW1 – Ronald Bosire was an eye-witness and
PWIII – Isaac Kambuthi – an investigating officer from Keroka Traffic Department.
PW1 and PWIII contradict on the following points:
PWI, said the deceased was hit on the side of the road. However, on this point,
PWIII, said the pedestrian was knocked on right side of the road before crossing the baseline. But the body was 25 metres from the edge of the road.
PWI, said it was 100 metres from the point of impact
PWIII, said the vehicle stopped 64 metres from the body. In cross examination, he reduced the distance to 54 metres. He construed this distance of 54 metres to indicate the motor vehicle was moving at a high speed. A reasonable speed the distance would have been 20 metres.
The appellant is said not to have been explained his rights under Section 211 of the Criminal Procedure Code as by law established.
The role of the first appellate court
As to whether there was sufficient evidence to support the conviction, this, court, as this is the first appellate court is enjoined to consider the entire evidence, evaluate it and reach an independent conclusion bearing in mind that it neither heard nor saw the witnesses testify (see Okeno vs Republic  E.A 32.
At page 19 of the proceedings, the submission by the appellant that Section 211 of the Criminal Procedure Code was not explained is clearly rebutted. What is more the appellant having been explained the importance of Section 211, made an informed choice, to not only give unsworn statement but also proceeded to state that he had no intention to call witnesses in defence of his case.
The points for determination
On point 1, above, the guiding legal principle is the one enshrined in the case of: Atito vs Republic 1975 E.A 278 where the Appeal held as follows:
“To justify a conviction of causing death by dangerous driving there must be a situation which was dangerous, when viewed objectively, and also some fault on the part of the driver causing that situation”
And here he word fault is construed to mean a failure, a failure, a falling below the care and skill of a competent and experienced driver in relation to the manner of the driving and to the relevant circumstances of the case…”.
Although it is indicated there was a school in the vicinity, there was no sign to that effect as a warning to the motorists. The driver – the appellant – was driving at, in my view, at high speed possibly 80, 120 KMH, possibly less or possibly more, but on his side of the road i.e on the left side.
The sudden emerging of a young man onto the road, brought up a situation which was dangerous but which, in my view, the driver had a fault input into this dangerous situation unfolding in front of his eyes.
The stoppage distance variously put at between 54 metres, or 64 to 100 metres, can be construed to be the evidence of high speed as this involved attempt to avoid a fatal impact with a pedestrian that appeared inevitable and also at the same time attempting to steady and control the motor vehicle. And all these happened in a split second.
Therefore the court’s finding on the offence of causing death by dangerous driving, the appellant had, in my view a fault on his part.
The second point for determination
Secondly, the court’s finding on sentence is confirmed as harsh. The principles of sentencing in relation to this offence were considered by the Court of Appeal, Criminal division in Republic vs Guilfayie  2 All E R 844, Lawton L. J, delivering the judgment of the court, said: “… there are many variations in penalties. Cases of this kind fall into two broad categories, those through inattention or misjudgment and secondly, those which has shown as selfish disregard for safety of other users of the road, with degree of recklessness. A sub-division of this category includes those caused by accused’s consumption of alcohol or drugs”.
In the case of Govid Shamji vs The Republic (unreported) in which Madan and Chesoni JJ said: “… a custodial sentence does not necessarily serve the interests of justice as well as the interests of the public. There are of course cases where a custodial sentence is merited, for example, when there is a compelling feature such as an element of intoxication or recklessness”
In the instance case, the appellant was sentenced to 2 years imprisonment. In my view this was harsh.
It is so ordered.
Dated and delivered at Nyamira on this 19th day of October 2015
C. B. NAGILLAH
In the presence of:
Oyagi for the appellant
Malesi for the respondent
Mercy Court Clerk