Republic v Kiguro (Trafic Case 377 of 2014) [2017] KEMC 124 (KLR) (17 January 2017) (Ruling) Neutral citation: [2017] KEMC 124 (KLR) REPUBLIC OF KENYA IN THE NYAHURURU LAW COURTS TRAFFIC CASE 377 OF 2014 PA NDEGE, PM JANUARY 17, 2017 BETWEEN REPUBLIC ......................................................................................... COMPLAINANT AND ZACHARY MUCHIRI KIGURO .......................................................... DEFENDANT RULING 1. On 07.05.2014, the defendant herein, Zachary Muchiri Kiguro, was charged with the ofience of Driving a Motor Vehicle on a public Road Without Due Care and Attention or Without Reasonable Consideration for other Road Users c/s 49(1) of the Traffic Act, Cap. 403 Laws of Kenya. He on the same day denied before Hon. A. Mukenga, Resident Magistrate, RM, that on 23.02.2014 at about 2030hrs, along Nyahururu- Nyeri road in Nyandarua County, being the driver of a motor-vehicle registration number KYV 572 make Peugeot (PSV) he drove the said motor-vehicle on a public road without due care and attention to other road users and caused an accident at Manunga by colliding head on with an oncoming motor vehicle registration number KAU 667F Toyota pickup that was coming from the opposite direction due to the impact one passenger Kelvin Njenga sustained injuries. 2. The defendant was on the same day released on a cash bail of Kshs. 20,000/=. The bond and bail terms were set by the plea court. He was represented by Waichungo advocate. Hearing of the prosecution's case commenced before me on 17.06.2015 and closed on 13.012017 when I declined to order for a further adjournment. The proceedings, the adjournments and the reasons therefor have been well captured in the records in the file and do not therefore require any further explanation or duplication herein. 3. The prosecution's case had 4 witnesses. There was only one eye-witness to the accident herein. He is PW1, Kelvin Njenga, and the victim. He was in the vehicle being driven by the defendant herein and his direct evidence on how the accident occurred did not assist the prosecution to prove to the required standard that the defendant herein, who was the driver, was in any way careless as alleged. The other https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/124/eng@2017-01-17 1
page 1 of 2
witness, PW2, Peter Kigothi Mwaniki, a motor vehicle inspector, inspected the two vehicles herein vide his reports which he produced on 24.11.2015 as PEXH. NOS. 2 and 3, and confirmed that none of the vehicles had a pre-accident defect. 4. The other witness was PW3, DR Joseph Karimi. His evidence cannot assist us prove that the defendant herein was careless and is therefore to be blamed for the road trafic accident herein. The last witness was a police oficer who assisted in the investigations herein. His evidence is therefore not direct and cannot be used to prove to the required standard that the defendant herein was careless and to be blame for the accident herein. His evidence of the sketch maps cannot override PW1, Kelvin Njenga's, an eyewitness, account that the defendant herein, was not to be blamed for the accident herein. Whether a Prima Facie Case Has Been Established 5. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue at the stage was whether the prosecution, in discharging this burden, has established a prima facie case that requires me to call upon the defendant herein to make his defence as required by section 211 of the Criminal Procedure Code. 6. The case of Republic v Kennedy Otieno & 6 Others (1998)eKLR, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given. Final Disposal Orders 7. Pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby find no prima facie case disclosed against the defendant to prove that he was careless in any way or as alleged and do consequently hereby dismiss both charges as framed against here herein. The defendant herein is hereby acquitted of the ofience of Driving a Motor Vehicle on a Public Road Without Due Care and Attention as charged c/s 49(1) of the Traffic Act. The Kshs. 20,000/= bail deposited on her behalf herein, be released to the depositor. DATED, SIGNED AND DELIVERED IN NYAHURURU IN OPEN COURT THIS 17TH DAY OF JANUARY , 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik Court prosecutor: Chelagat Defence counsel: Mureithi H/b Waichungo Defendant: Present Trafic oficer/s: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/124/eng@2017-01-17 2
page 2 of 2