Joseph Waruinge Njenga v Republic [1980] KECA 20 (KLR)

The court reconstructed section 243(c) by reordering its words to show the offence lies in the omission to take precautions, with rashness or negligence describing only the manner of that omission. Drawing on section 137(b)(i) of the Criminal Procedure Code and Indian commentaries on the corresponding Indian Penal Code sections, it concluded that alternative statements of manner do not charge two offences in one count, distinguishing Cherere s/o Gukuli.

Following the approach in Pope v R, the court held that although a conviction may simply state guilt as charged, the court should say which limb of alternative particulars was proved. The magistrate here found both rashness and negligence without choosing. The court, reassessing the evidence as a first appeal, found the appellant took a deliberate, unjustifiable risk in lighting the cigarette despite instructions, and was proved rash.

The evidence of the maintenance engineer established that the appellant knew the thinner was inflammable and had received instructions against smoking. The court applied the distinction between culpable rashness (consciousness of risk) and culpable negligence (want of due circumspection), and stressed that simple lack of care amounting to civil liability is not enough for criminal liability. Here there was complete disregard for the safety of others, a patent crime against the State.

The court held sentencing is essentially a matter for the trial court, citing Harries v R and noting that the instances in Wanjema v The Republic are only examples of when interference may occur; the governing criterion remains whether there has been a miscarriage of justice. The court was not entitled to interfere merely because it would have imposed a different sentence, and found the sentence by no means too much.