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MagistrateOtherInquest File (Machakos) - number not stated in judgment· [2024] KEMC 25 (KLR)

In re Makau Musau (Inquest 1 of 2022) [2024] KEMC 25 (KLR)

Principal Magistrate's Court at Machakos
3 June 2024
6,583 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Machakos inquest found both a motorbike rider and a car driver responsible for a fatal 2022 crash, leaving the decision to prosecute to the DPP.

What this practically means

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Executive summary

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This is an inquest under sections 385-388 of the Criminal Procedure Code into the death of Patrick Njogu, a pillion passenger on motor cycle KMFV 105F who died following a road accident on 29th January 2022 at the Kenya Israel/Montezuma bridge near Mlolongo, involving a van of unknown registration and motor vehicle KBM 001P Toyota Landcruiser belonging to Hon. Martha Karua. The State called six witnesses, including the car's driver (James Mwangi Murage), Corporal Tabitha Wandia (bodyguard), the motor cycle rider (Junior Mwaka), a vehicle inspector and a traffic police officer. The court framed two questions: the manner and apparent cause of death, and whether evidence disclosed criminal culpability by known persons. Surveying Kenyan and Australian coronial jurisprudence, the court held an inquest is an inquisitorial, fact-finding process that cannot apportion liability or arrogate the DPP's prosecutorial powers. On the evidence, it found the cause of death was multiple head and chest injuries from blunt force trauma consistent with a road traffic accident. Weighing three irreconcilable eyewitness versions and applying section 119 of the Evidence Act, the court preferred the rider's account, rejecting the driver's 'Mlolongo accident' theory as a charade. It found the rider culpable for dangerous riding, reckless riding and riding without a licence, and the driver culpable for dangerous driving, reckless driving and failing to stop and report the accident. The court recommended that the DPP consider exercising his powers under Article 157 of the Constitution. No costs order was made.

Key legal issues

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01

The manner and apparent cause of death of the deceased

Holding

The cause of death was multiple injuries on the head and chest due to blunt force trauma consistent with a traffic road accident; the uncontroverted post-mortem evidence by Dr. Michieka established this

Reasoning

Dr. Michieka's post-mortem opinion attributed the death to multiple injuries on the head and chest caused by blunt force trauma consistent with a road traffic accident. The court applied the 'common sense' test of causation drawn from Australian coronial jurisprudence, holding that the inquiry is factual and not confined to proximate causes. No evidence controverted the post-mortem findings, so the court accepted them.

p. 7
02

Whether there is evidence disclosed to support criminal culpability by known persons

Holding

Both the motor cycle rider (Junior Mwaka) and the driver of motor vehicle KBM 001P (James Mwangi Murage) were found criminally culpable for traffic offences under sections 46, 47(1), 30(1) and 73(1) of the Traffic Act

Reasoning

The court weighed three irreconcilable eyewitness accounts and, invoking section 119 of the Evidence Act, preferred the rider's version. It found the rider rode side-by-side with a van in reckless contravention of the Traffic Rules and Highway Code, exposing the pillion passenger. The driver of the car failed to keep a safe distance and failed to stop and report the accident as required by section 73(1) of the Traffic Act, having obeyed an unlawful direction from his employer. Both were found reckless within sections 46 and 47 of the Traffic Act.

p. 10
03

The limited scope of an inquest and the role of the DPP

Holding

An inquest is inquisitorial and limited; its findings do not themselves institute prosecution but are forwarded for the DPP's consideration under Article 157 of the Constitution

Reasoning

Relying on Kenyan and foreign authority, the court held that a magistrate in an inquest cannot make conclusive findings akin to an acquittal, cannot recommend civil claims, and cannot arrogate the DPP's prosecutorial powers under section 387(3) of the CPC. The magistrate's opinion on criminal culpability is instead forwarded to the DPP, who alone may institute criminal proceedings under Article 157 of the Constitution.

p. 4

Legal principles established

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  • An inquest is a fact-finding, inquisitorial exercise and not a method of apportioning guilt or a trial between parties
  • The scope of an inquest is constricted; a magistrate sitting in inquest should not apportion civil or criminal liability
  • The opinion formed at an inquest does not itself found a prosecution but is for the consumption of the Director of Public Prosecutions under Article 157 of the Constitution
  • Causation in coronial inquiries is determined by the 'common sense' test of causation limited by principles of remoteness

Court orders

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  1. 1.A finding that the cause of death of Patrick Njogu was multiple injuries on the head and chest due to blunt force trauma occasioned by a traffic road accident
  2. 2.A finding that Junior Mwaka is criminally culpable for causing death by dangerous riding contrary to section 46 of the Traffic Act, reckless riding contrary to section 47(1) of the Traffic Act, and riding a motor cycle without a driving licence contrary to section 30(1) read with section 30(7) of the Traffic Act
  3. 3.A finding that James Mwangi Murage is criminally culpable for causing death by dangerous driving contrary to section 46 of the Traffic Act, reckless driving contrary to section 47(1) of the Traffic Act, and failing to stop immediately after an accident contrary to section 73(1) read with sections 118(1) & (3) of the Traffic Act
  4. 4.A recommendation that the Director of Public Prosecutions may exercise the powers vested in that office under Article 157 of the Constitution

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 157(4) & (6)(a); Article 243
  • Criminal Procedure CodeSections 385, 386, 386(1), 386(2), 387, 387(3), 387(4), 388(1), 388(2)
  • Traffic ActSections 30(1), 30(7), 46, 47(1), 73(1), 118(1) & (3)
  • Traffic RulesRule 73
  • Highway CodeGuidelines 50, 52, 171
  • Evidence ActSection 119
  • National Coroners Service Actgeneral reference

Cases cited (11)

  • Domascewicz vs. State Coroner
    [2004] VSC 528
  • In Re Estate of Phillip Otieno Odhiambo (Deceased)
    [2015] eKLR
  • In Re Joyce Mumo Makenzie (Deceased)
    [2009] eKLR
  • Republic Thro' CID Mwingi vs. Julius Kilonzo Muthengi
    [2015] eKLR
  • R vs. South London Coroner; Ex Parte Thompson
    quoted in Arnetts vs. Mccann [1990] 170 CLR 596
  • Arnetts vs. Mccann
    [1990] 170 CLR 596
  • Re the State Coroner; ex parte the Minister for Health
    [2009] WASCA 165
  • WRB Transport vs. Chivell
    [1998] SASC 7002; (1998) 201 LSJS 102
  • March vs. E & MH Stramare Pty Ltd
    [1991] HCA 12; (1991) 171 CLR 506
  • R vs. Doogan; ex-parte Lucas-Smith & Ors
    (2006) 158 ACTR
  • Harmsworth vs. State Coroner
    [1989] VR 989
Jurisdiction invoked
Sections 385-388 of the Criminal Procedure Code; Article 157 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Makau Musau (Inquest 1 of 2022) [2024] KEMC 25 (KLR)", Case Analysis (2024). Inquest File (Machakos) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/25/eng@2024-06-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.