Ndungu Kariuki v Republic

ii. That the learned magistrate erred in law in issuing an order to NTSA to suspend the licence of the accused person indefinitely bearing in mind the provisions of Section 46 and 76 of the Traffic Act. iii. That the learned trial magistrate erred in law and facts in failing to take into account that the accused was a first offender thereby imposing a harsh sentence. iv. That the learned trial magistrate erred in law in sentencing the appellant to an excessive term and ordering indefinite suspension of his driving licence considering the circumstances surrounding the commission of the offense if at all. 4. The respondent filed grounds of opposition dated 26th May 2025 where it stated that the magistrate exercised discretion in her sentence and the same was sufficient and appropriate. 5. A summary of the case before the trial court is that PW1- Dr. Titus Ngulungu did a post mortem on the body of the deceased on 21st January 2020 at 1.00pm, and found the cause of death to be injuries to the chest and head with blood loss caused by blunt trauma in keeping with road traffic accident. He produced the post mortem form as P Exhibit 1. The body was identified by his wife and brother. 6. PW2- Benjamin Obubago a motor vehicle inspector stationed at Nakuru Motor Vehicle Inspection Center produced on behalf of his boss Charles Mutugi the accident report and its number as P. Exhibit 2 and 3. PW3 - Judy Kemunto Omari the wife to the deceased confirmed the death of her husband. She did not witness the accident. 7. PW4- Nick Wanjala and PW5 Mark Auma both boda boda riders witnessed the accident on 18th January, 2020. Their evidence which is similar was that the motor vehicle registration number KCW 520K make Voxy was speeding and lost control. It hit the deceased who was on his motor bike registration number KMEE 019C. This was at Spanish Lodge near East Matt Supermarket. 8. In cross examination they confirmed the presence of motor vehicle Subaru KBH 186Y which was only involved after the Voxy vehicle hit the deceased as he was pushed to the Subaru vehicle. 9. PW6- No. 239663 Inspector Joel Mugambi attached to Gilgil Traffic base was the investigating officer. He stated that he visited the scene of the accident where he found motor vehicle registration number KCW 520K Voxy, KBH 186Y Subaru and motor cycle KMEE 019C Tiger. He further stated that KCW 520K was moving from Naivasha to Nakuru highway towards Gilgil town when it lost control and veered of the road hitting motor cycle KMEE 019C which was at a boda boda shade. The deceased was hit as he waited for customers and pushed onto motor vehicle KBH 186Y. Due to the impact, he sustained injuries on his head and left leg fractured. He was rushed to Gilgil subcounty Hospital and later transferred to PGH where he succumbed to his injuries. He produced the sketch plans for the scene as P exhibit 4a, 5a and 5b. 10. In his sworn defence the appellant stated that on the material day he was driving the ill-fated vehicle KCW 520K and as he left town the vehicle had a tyre burst and he became unconscious. He further stated that he was driving on the left side of the road and he did not know who was injured and taken to the hospital. He added that he did not know if the deceased had a valid driving licence. 11. On cross examination, he stated that his vehicle was in good working condition, the road was fiat with no bends and that the accident took place between 4:00 - 5:00 pm. He added that he was not sure of his speed and that he was in good health prior to driving. 12. The appeal was canvassed through written submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13420/eng@2025-09-19 2

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Appellant’s submissions 13. These were filed by Nyawira Mureithi & Co. Advocates and are dated 17th February 2025. Counsel gave a brief summary of the appeal and identified sentence as the only issue for determination. 14. Counsel submitted that they had no issues with the fine of Kshs. 170,000/or a jail term of 3 years meted out to the appellant by the trial court. The only issue was the order to NTSA to suspend the appellant's driving licence indefinitely. He placed reliance on section 46 of the Traffic Act which empowers the court to cancel an offender's licence for a period of 3 years. The said section provides as follows: “ Any person who causes the death of another by driving a motor vehicle on a road recklessly or at a speed or in a manner which is dangerous to the public, or by teaving any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public, having regard to all the circumstances of the case, including the nature, condition and use of the road and the amount of traffic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an offence whether or not the requirements of section 50 have been satisfied as regards that offence and be liable to imprisonment for a term not exceeding ten years and the court shall exercise the power conferred by Part VIII of cancelling any driving licence or provisional driving licence held by the offender and declaring the offender disqualified for holding or obtaining a driving licence for a period of three years Starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later.” 15. He further placed reliance on Section 76 of the Traffic Act, which confers the court with the power of suspending an offender's licence for such time as the court thinks fit. The said section provides as follows: “ Any court before which a person is convicted of any offence in connection with the driving of a motor vehicle may(a) 16. if the person convicted holds a driving licence or provisional driving licence, suspend the licence for such time as the court thinks fit, or cancel the licence and declare the person convicted disqualified for obtaining another licence for a stated period.” Counsel submitted that section 76 (1) (a) was permissive and not mandatory as it makes use of the word “may”. Further, that the appellant was a first offender who had driven a motor vehicle for many years, considering his age. Additionally, that the accident was as a result of a tyre burst and therefore the trial court’s suspension of his licence for an indefinite period of time would cripple him and others who depend on him for a livelihood. She urged the court to set aside the order suspending the appellant’s driving licence indefinitely. Respondent’s submissions 17. These were filed by Mueni Mutua prosecution counsel and are dated 26th May 2025. Counsel submitted that the driving licence of the appellant was suspended indefinitely by the court after the court appreciated his age of 70 years and his health condition since he was a person who suffers a chronic illness. Further that the pre-sentencing report dated 4th December 2024 indicated that the appellant on several occasions suffered loss of consciousness. Additionally, that the appellant in his defence equally blamed the accident to a tyre burst that rendered him unconscious and he could not tell what happened https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13420/eng@2025-09-19 3

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after the accident. Thus, the trial court in cancelling his licence indefinitely was protecting other road users since the appellant could not anticipate when he may lose his consciousness again while driving. 18. Counsel further submitted that the trial magistrate had discretion to sentence the appellant. Reference was on the decision in Kwazulu -Natal Vs Mchunu and Another AR24/11 [2012] where it was stated that: “ It is trite law that the issue of sentencing is one which vests a discretion in the trial court. The trial court considers what a fair and appropriate sentence should be” 19. See also; S v Malgas 2001 (2) SA 1222 SCA 1235 paragraph 25. She urged the court to uphold the conviction and sentence by the trial court. Analysis and Determination 20. As a first appellate court, this court has a duty to re-consider and re-evaluate all the material before it and arrive at its own conclusion. It must bear in mind that unlike the trial court it did not have the opportunity to see and hear the witnesses and must give an allowance for that. This was the holding in the cases of Okeno vs Republic (1972) E.A. 32; Pandya vs Republic (1975) E.A. 336. 21. I have carefully considered the evidence on record, grounds of appeal, submissions by both parties, cited authorities and the Law. In the grounds of appeal under ground No. (i) the appellant is challenging his conviction. However, in his submissions it is clearly indicated that he was no longer challenging the conviction and sentence. That what he is challenging is the order suspending his driving license indefinitely. Before getting there this court must be satisfied that the conviction was proper. 22. lt is not disputed that the appellant was driving motor vehicle registration number KCW 520K which hit motor cycle registration KMEE 019C which was at a boda boda shade. The deceased was aboard the said motor cycle as he waited for customers. The appellant in his defence admitted being the driver to motor vehicle KCW 520K at the time of the accident. He said the vehicle got a tyre burst as he drove it but he was not aware of it as he had become unconscious. He learnt from the report that it was 2 tyres which burst. He did not therefore refute the fact that his vehicle hit the deceased resulting in his death. He did not deny having been driving at high speed. 23. From this analysis of the evidence I am satisfied that the appellant was properly convicted by the trial court. In passing sentence, the trial court considered the pre-sentence report, the appellants age and his health challenges of losing consciousness. She thus meted out a sentence of a fine and a prison sentence in default. Upon analysis of all these facts and the law I find nothing unlawful in the sentence which was meted out in the trial court’s decision. Section 46 of the Traffic Act provides for a sentence of not more than ten (10) years. What the appellant got was far less than that. Finally, on this, the appellant in his submissions told the court he was not challenging the conviction and sentence. Thus, the only issue this court will deal with is the order suspending the driving license indefinitely. 24. The trial magistrate in sentencing the appellant noted that the appellant was an elderly man aged 70 years and that the pre-sentencing report showed that he suffered a chronic illness. The appellant during his sentencing did not challenge the pre-sentence report on the chronic illness claim and still on appeal he failed to produce any medical documents showing that he does not suffer from a chronic illness. He admitted to having been unconscious at the time of the accident and he equally does not challenge the conviction and the sentence imposed on him by the trial court. 25. It is trite that on Appeal there is a cautionary safeguard in the underlying statement that in exercising discretion to interfere with the sentence of a trial court this court can only do so within the guidelines https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13420/eng@2025-09-19 4

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issued by the Court of Appeal in Benard Kimani Gacheru vs Republic [2002] eKLR which restated that: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court, similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate court feels that the sentence is heavy and that the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the dissertation for the trial court on sentence unless, anyone of the matters already states is show to exist.” 26. None of the grounds cited in the decision above has been presented and proved by the appellant in his appeal. Further, it is my considered view that the trial Magistrate’s decision was a lawful exercise of judicial discretion under Section of the Traffic Act (see paragraph 15) and in line with constitutional imperatives to safeguard life and deter reckless behaviour on the roads. This is clearly justified by the material on record. At the time of conviction, the appellant was aged 70 years old. He is much older now and there is nothing showing that his condition has changed. 27. I therefore find no good reason to make this court interfere with the trial court’s order suspending the appellant’s driving licence indefinitely. 28. The upshot is that the appeal lacks merit and is hereby dismissed. 29. Orders accordingly. DELIVERED VIRTUALLY, DATED AND SIGNED THIS 19TH DAY OF SEPTEMBER, 2025 IN OPEN COURT AT NAKURU. H. I. ONG’UDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13420/eng@2025-09-19 5

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