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|Case Number:||Criminal Appeal 272 of 1982|
|Parties:||Mmbururu Kioga v Republic|
|Date Delivered:||17 Dec 1982|
|Court:||High Court at Nyeri|
|Judge(s):||Emmanuel Okello O'Kubasu|
|Citation:||Mmbururu Kioga v Republic eKLR|
|Parties Profile:||Individual v Government|
Mmbururu Kioga v Republic
High Court, at Nyeri
December 17, 1982
Criminal Appeal No 272 of 1982
Traffic law - careless driving - charge of - failure to issue a notice of intended prosecution - failure to serve - effect of - Traffic Act, Sections 49(1); 50.
The appellant was charged with and convicted of careless driving under Section 49(1) of the Traffic Act (Cap 403). He appealed on the ground that he had not been served with a notice of intended prosecution as required under Section 50 of that Act.
1. The failure to serve the appellant with a notice of intended prosecution as required by the Traffic Act (Cap 403) Section 50 was fatal to the charge. The charge of careless driving could not stand for noncompliance with the Traffic Act.
2. In order for a conviction obtained after non-compliance with Section 50 to be quashed, it must be proved that the appellant did not contribute to the failure to comply. In this instance it was so proved.
Greene v R  EA 62 Approved & Applied
Traffic Act (Cap 403) Sections 49(1), 50
|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 NYERI
CRIMINAL APPEAL NO. 272 OF 1982
The appellant was convicted on two counts under the Traffic Act (Cap 403) but this appeal concerns only the first count of careless driving contrary to Section 49(1) of the Traffic Act. The issue of notice was raised by the appellant. He was not served with a notice and he was of the view that notice was mandatory unless hindered by the conduct of the accused.
The learned State Counsel, in conceding the appeal, pointed out that a notice of intended prosecution was not issued and that Section 50 of the Traffic Act is mandatory. He went on to say that it was not clear if carelessness was proved as the appellant could not have been expected to see a person sleeping at the back of his car.
Section 50 of the Traffic Act (Cap 403) provides:
“Where a person is prosecuted for an offence under any of the sections of this Act, other than Section 46, relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving or to careless driving, he shall not be convicted unless –
(a) he was warned at the time the offence was committed that the question of prosecuting him for an offence under some one or other of the sections aforesaid would be considered; or
(b) within fourteen days of the commission of the offence a summons for the offence was served on him; or
(c) within fourteen days a notice of the intended prosecution, specifying the nature of the alleged offence and the time and place where it is alleged to have been committed, was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence: Provided that –
(i) failure to comply with this requirement shall not be a bar to the conviction of the accused in any case where the court is satisfied that –
(a) neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time for a summons to be served or for a notice to be served or sent as aforesaid; or
(b) the accused by his own conduct contributed to the failure; and
(ii) the requirement of this section shall in every case be deemed to have been complied with unless and until the contrary is proved.”
In this appeal the appellant succeeded in showing that he was not served with a notice of intended prosecution. It has not been shown that he contributed to this failure. In Greene v R  EA 62 at p 78 Spry JA reading the judgment of the Court of Appeal said:
“For these reasons, we think that there was failure to comply with the provisions of Section 50; that consequently a prosecution did not lie and; that therefore this appeal must succeed.”
In the present appeal, the appellant was not served with a notice of intended prosecution. Hence, Section 50 of the Traffic Act was not complied with. It follows that the appellant’s conviction on the first count cannot stand. This appeal is therefore allowed in respect of the first count of careless driving contrary to Section 49(1) of the Traffic Act. The conviction is quashed and sentence set aside. The fine of Kshs 500 imposed should be refunded to the appellant.
Dated and delivered at Nyeri this 17th day of December, 1982.