In re Makau Musau (Inquest 1 of 2022) [2024] KEMC 25 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#The manner and apparent cause of death of the deceased
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
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.
Whether there is evidence disclosed to support criminal culpability by known persons
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
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.
The limited scope of an inquest and the role of the DPP
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
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.
Legal principles established
#- 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
#- 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.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.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.A recommendation that the Director of Public Prosecutions may exercise the powers vested in that office under Article 157 of the Constitution
- Jurisdiction invoked
- Sections 385-388 of the Criminal Procedure Code; Article 157 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.