Republic v Kingara (Traffic Case 689 of 2014) [2017] KEMC 126 (KLR)

4. PW9, NO. 46323 PC Stephen Mugadhe, later claims that he visited the defendant herein at the hospital where he was undergoing treatment where he confessed to him that he was the driver of the vehicle. That the defendant handed over his driving licence which he produced as PEXH. NO. 1. He blames him for causing the accident herein. The occupants of the matatu were injured and both vehicles were damaged as a result of the accident. He later charged him with the present ofience. The Charge and Procedure 5. On 26.09.2014, the defendant was charged with the ofience of Careless Driving c/s 49(1) of the Traffic Act, Cap. 403, laws of Kenya. On the same day, he denied before me that on 29.07.2014, at about 6.45 pm along Ol Kalou - Njabini road within Nyandarua County, being the driver of a motor- vehicle Reg. No. KAK 076J make Toyota saloon, he drove the said motor vehicle along the said public road without due care and attention to other road users and caused an accident to a motor vehicle Reg. No. KAY 147 R make matatu whereby several passengers were slightly injured and caused damages to the said matatu. He was on the same day released on a cash bail of Ksh. 20,000/=. He was represented throughout the trial herein by Mr. Kamanga. 6. The prosecution, was on the other hand led by CIP Masinde, a police prosecutor, and Ms. Chelagat, a prosecution counsel, instructed by the Director of Public Prosecutions, who, by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. 7. Hearing of the prosecution's case commenced on 3.06.2015 after a delay because of lack of preparations 1 2 on the part of the defence on 28.11.2014 , and the prosecution on 31.03.2015 . The prosecution's case finally commenced on 03.06.2015, and closed on 27.09.2016. On 22.11.2016, I called upon the defendant herein to make his defence. 8. The defendant made his defence on 10.01.2017, and closed his case. The defence then made brief submissions at the close of the defence. This matter has therefore been pending the present judgment. All the other adjournments and the reasons therefor have been well captured in the records of proceedings herein and do not therefore require any further explanation herein. Facts of the Case 9. The facts of the case herein are basically as per the introduction hereinabove. The defendant in his defence denied being the driver of the motor vehicle that was involved in the accident herein. He also denied being involved in the accident herein, or being hospitalised as a result thereof. He stated in his defence that he was arrested on 25.09.2014 when he went to the police station to assist one Alex Kamau, the owner of the motor -vehicle KAK 076 J, who had called him with the information that he had been involved in the accident herein. That the vehicle had then been impounded at the police station following the accident herein. That on reaching the police station, he was asked to provide the details of the owner. That he however found himself being arrested and released on bond. He denied that the driving licence produced in court as PEXH. NO. 1 belongs to him. 10. Meanwhile a doctor from J. M. Kariuki Memorial Hospital (Ol Kalou District Hospital), PW8, DR. Patrick Kiruki, produced the medical examination (P3) forms for the victims herein, including PW5, Lilis Nyambura's, as exhibits. PW5's report was produced as PEXH. NO. 5. It details the injuries sustained by her, and corroborates her evidence on the same. 1 Refer to pg. 2 of the handwritten proceedings where the defence counsel prayed for adjournment 2 Refer to pg. 4 of the handwritten proceedings where the prosecution prayed for adjournment https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 2

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Submissions 11. There were brief submissions from the defence at the close of hearing. Learned defence counsel submitted that none of the witnesses saw the defendant herein while driving the vehicle or at the scene. That most of them conformed that they saw him at the hospital. That the prosecution did not adduce any evidence to confirm that he was involved in the, or injured or hospitalised as a result of the, accident herein. He went on to submit that the driving licence produced herein did not belong to the defendant herein which therefore proves that he was not the driver of the motor- vehicle as alleged. Counsel also submitted that no notice of intention to prosecute was issued to the defendant herein. The final point in the submissions was that the lapse in time between the date of the occurrence of the accident herein and the charges herein should make the court doubt the prosecution's evidence as relates to the defendant's involvement in the accident herein. Issues, Burden and Standards of Proof 12. From the charge, the evidence adduced in proof thereof and the learned defence counsel's submissions at the conclusion of the hearing herein, the accident herein is not in dispute. The injuries caused to the victims and the vehicles involved are also not in dispute. The main issues for determination are whether the defendant herein was involved in the accident herein; whether a notice of intended prosecution was issued to him, and the efiect of non-issuance of the notice. I do believe that these are the main issues that shall dispose ofi the criminal dispute herein. They are therefore the issues for determination herein. 13. The burden of proving that the defendant herein was involved in the road trafic accident herein lies with the prosecution. The burden of proof on the part of the prosecution is beyond reasonable doubt. 14. The notice or warning of intention to prosecute is provided for in section 50 of the Traffic Act as follows: Where a person is prosecuted for an ofience under any of the sections of this Act, other than section 46, relating respectively to the maximum speed at which motor vehicles may be driven, to reckless or dangerous driving or to careless driving, he shall not be convicted unless(a) he was warned at the time the ofience was committed that the question of prosecuting him for an ofience under some one or other of the sections aforesaid would be considered; or (b) within fourteen days of the commission of the ofience a summons for the ofience was served on him; or (c) within fourteen days a notice of the intended prosecution, specifying the nature of the alleged ofience and the time and place where it is alleged to have been committed, was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the ofience: Provided that (i) failure to comply with this requirement shall not be a bar to the conviction of the accused in any case where the court is satisfied that - https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 3

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(a) neither the name and address of the accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time for a summons to be served or for a notice to be served or sent as aforesaid; or (b) the accused by his own conduct contributed to the failure; and (ii) 15. the requirement of this section shall in every case be deemed to have been complied with unless and until the contrary is proved. By virtue of the proviso (ii) of the section, the defendant had the burden of proving the contrary i.e. that the notice or warning was not issued as required. The burden on his part is on a balance of probabilities. Determination 16. The finer issue in the first main issue for determination as framed hereinabove, is that of identification. The evidence of PW5 appears to have placed the defendant herein at the scene of the accident. However, it was confirmed in cross-examination that she did not state so in her statement or initial report to the police. This compounded by the evidence that she was extensively injured after the accident herein, I do believe that she could not have had the necessary state of mind to be able to walk from the matatu where she was, to the saloon car vehicle where she claims to have see the defendant herein while injured at the driver's cabin. Hers was evidence of identification by a single witness that required corroboration. 17. The corroboration ought to have come from the prosecution's evidence that the defendant herein was soon thereafter taken to the hospital for treatments as one of the victims of the accident herein. I may therefore not be faulted for holding that PW5's evidence that she saw the defendant herein at the scene of the accident herein appears to have been made up from the hearsay evidence of the other witnesses that they was shown the defendant herein while at the hospital. 18. As correctly submitted by the learned defence counsel, the prosecution could have at least availed the medical evidence of the defendant's treatment, just as they had done for the victims herein, which could have proved to the required standard of beyond reasonable doubt that the defendant was actually involved, and soon thereafter treated alongside the victims herein for injuries sustained, in the accident herein. That could have corroborated PW5's identification evidence. 19. The prosecution's case against the defendant herein is further confused by the evidence in PEXH. NO. 1. Clearly the driving licence produced herein does not bear the name of the defendant herein. In the circumstances I find no reason to believe the prosecution's case. The defendant was not properly identified at the scene of the accident, there is no proof that he was treated as a victim of the accident, and there is no proof that he confessed to the investigating oficer by producing his driving licence to him to prove that he was the suspect. His purported confession was also not properly extracted by a proper oficer as required. That was done in the course of investigations, when he was being interrogated. At that time, he was alleged to have been the prime suspect and the provisions relating to the handling and interrogations of suspects had to be adhered to. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 4

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20. The laws governing confessions and their admissibility are clearly stated in sections 25 and 25A of the Evidence Act as follows: Paragraph 25. Confessions generally inadmissible 1. A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court. 25A. Confessions generally inadmissible 1. A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police oficer (other than the investigating oficer), being an oficer not below the rank of Chief Inspector of Police, and a third party of the person’s choice. 2. The Attorney-General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession where the confession is not made in court (Emphasis is mine). 21. For sometimes there used to be a confusion in our criminal justice system on the meaning of 'the court' as used in the above provisions. The investigating oficers used to arraign suspects in magistrates chambers during investigations so as to have the confessions recorded. The magistrates could then be summoned to appear as prosecution witnesses before another court during the trial. Some trial courts still went ahead to exclude such confessions as extra-judicial arguing that they were still not given before the trial court and that section 25A of the Evidence Act contempleted a situation where the confessions were to be made before the trial court, during the trial, and not before another court during investigations. 22. The confusion appears to have been solved in 1999 when the then Attorney-General made and gazetted the rules contempleted in subsection 2 hereinabove which were to allow the police to extract the confessions during investigations without involving the court. There was a requirement in the rules that they be prominently displayed for the public and the accused persons at every police stations and units ( CID centres and ofices, police posts and patrol bases); including Nyahururu Police Station and CID ofice. For the benefit of the prosecution and the concerned and interested parties herein, I do reproduce the rules hereunder:The Evidence (out Of Court Confessions) Rules, 2009 1. Citation These Rules may be cited as the Evidence (Out of Court Confessions) Rules, 2009. 2. Interpretation. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 5

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In these Rules, except where the context otherwise requires – “Act” means the Evidence Act; “electronic recording media” includes any removable or physical audio recording medium; and “recording oficer” means a police oficer (other than the investigating oficer) who is not below the rank of Chief Inspector of Police. 3. 4. Availability of Rules. These Rules shall be readily availed by the Attorney-General for reference by police oficers, accused persons and members of the public and in particular, shall – (a) be displayed prominently at every police station and police unit; (b) upon request, be made available by a police oficer, in a form of a copy, to an accused person. Rights of accused person. (1) Where an accused person intimates to the police that he wishes to make a confession, the recording oficer shall take charge of the accused person and shall ensure that the accused person – (a) has stated his preferred language of communication; (b) is provided with an interpreter free of charge where he does not speak either Kiswahili or English; (c) is not subjected to any form of coercion, duress, threat, torture or any other form of cruel, inhuman or degrading treatment or punishment; (d) is informed of his right to have legal representation of his own choice; (e) is not deprived of food, water or sleep; (f) has his duration, including date and time of arrest and detention in police custody, established and recorded; ( g) has his medical complaint, if any, adequately addressed; ( h) is availed appropriate communication facilities; and (i) communicates with the third party nominated by him under paragraph (3) prior to the caution to be recorded under rule 5. (2) The recording oficer shall not record a confession from any accused person who complains to him of being a victim of torture or whose physical appearance shows signs of physical injuries including open wounds, body swelling, or shows extraordinary fatigue or any other indicators that would suggest that the accused person has been tortured. (3) The recording oficer shall ask the accused person to nominate a third party who shall be present during the duration of the confession session, and upon the appearance of the third party, the recording oficer shall record the third party’s particulars and relationship to the accused person. 5. Caution to the accused person. (1) The recording oficer shall caution the accused person in the following terms and shall record his response: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 6

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6. (2) While recording the confession, the recording oficer shall ensure, and record compliance, that where the confession session is prolonged, the session included rest and relaxation periods. (3) The recording oficer shall ensure that the confession is recorded at the same time it is made and shall record the date and time of commencement of the confession session and the place where the confession is recorded. Electronic recording media. (1) Subject to paragraph (2), the recording oficer may record the confession of an accused person on electronic recording media. (2) Where the recording oficer records the confession of an accused person on the electronic recording media – (3) (a) the accused person shall be notified of such recording and of his right to object and the notification and any response thereto by the accused person, preferably on electronic media; and (b) the recording shall be in the open. In the event of failure of the electronic recording media, the recording oficer may – (a) opt to replace the equipment and record the failure upon the resumption of the confession session; or (b) record in waiting. (4) Upon electronic recording, the first recording which shall be the master recording, shall be marked with a reference number and sealed in the accused person’s presence while a second recording will be used as a working copy by the prosecuting authority during the period of exercise of prosecutorial discretion. (5) The recording oficer shall produce the master electronic record to the court and may be requested by the court to prove its authenticity. (6) A copy of the recording shall be given to the accused person, upon request. 7. Confession recorded in writing. Where the confession is to be recorded in writing, the recording oficer shall inform the accused person of his option to write his own statement in his preferred language or to have the recording oficer record it. 8. Clarification of confessions by accused person. At the conclusion of the recording, the accused person shall be ofiered the opportunity to clarify anything he has said and to add anything he may wish. 9. Certificate of confession. The recording oficer shall ensure that the written confession or electronic recording media contains the following certificate at the end of the confession, in the original language of the accused person: “I have read the above statement and I have been told that I can correct, alter or add anything I wish. The statement is true. I have made it of my own free will.” 10. Confession not recorded in English or Kiswahili. In the case of a confession not recorded in English or Kiswahili, the recording oficer shall ensure that it is translated into English or Kiswahili. 11. Safety of recorded confession. The master recording or the signed confession statement shall be kept securely and their movements accounted https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 7

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for on the same basis as material which may be used for evidential purposes, as further elaborated in the Force standing orders issued under section 5 of the Police Act. 12. Accused person arrested outside Kenya. Where an accused person is arrested outside of the geographical boundaries of Kenya for the purpose of being arraigned in a Kenyan court, and, prior to arrival in Kenya, the accused person opts to record a confession – (a) the arresting authority shall record the confession if the governing procedures for obtaining of confessions in the arresting jurisdiction are in substantial compliance with these Rules; and (b) the trial court shall be the final determining judicial body to adjudicate on the admissibility of confession so obtained. 13. Recording oficer to be a witness. The recording oficer, having informed himself of section 26 the Act, shall be the proper prosecution witness to prove to the court beyond reasonable doubt that the Rules were complied with. 14. Certification by recording oficer. The recording oficer shall certify, in writing, that a confession was not obtained as a result of any inducement, threat or promise having reference to the charge against the accused person. 15. Language of publication. These Rules shall be translated and published in Kiswahili in addition to the oficial copy published in English. Made the 6th March, 2009 S.A. Wako Attorney-General 23. As for confessions made to a police oficer; section 29 of the Evidence Act provides that no such confessions shall be proved against a person accused of any ofience unless such police oficer is of or above the rank of, or a rank equivalent to, sub-inspector (acting Inspector); or an administrative oficer holding first or second-class magisterial powers and acting in the capacity of a police oficer. 24. Applying the above provisions herein, I do find no evidence of an admissible confession that can be used to convict the defendant herein. I do therefore find that if there was any confession herein, then it was an oral one made to PW9, in the course of interrogations and hence did not comply with the provisions of section 25A of the Evidence Act as read with The Evidence (Out of Court Confessions) Rules, 2009. 25. Applying the provisions of section 29 of the Evidence Act, the purported oral confession that he was the driver of the one of the vehicles involved in the accident herein was made to PW9, a Police Constable, and as such cannot be used against the defendant herein. That confession is also inadmissible within the meaning of sections 25 and 25A of the Evidence Act as it was not made in court, or a police oficer of the rank of a Chief Inspector of police was not used. I do wonder why PW9, was in a hurry to have the defendant charged with the ofience without having his confession if at all he made one, extracted by a competent oficer. This could also be a case of a bungled investigations. 26. Having found the confession to be inadmissible, and no direct and reliable evidence of an eye-witnesses herein having identified the defendant herein at the scene, I do therefore find no other admissible evidence that might entitle me convict the defendant. The evidence against him appears to have been made up to falsely implicate him herein. None of the victims herein explained how they came to know that the defendant herein was the driver of the vehicle herein. 27. In the circumstances, I do hereby find that the prosecuting has been unable to prove to the required standard of beyond reasonable doubt that the defendant herein was involved in the accident herein. He cannot therefore be claimed to have been a driver in any of the vehicles herein, having not been https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 8

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proved to have been involved in the accident involving the vehicles. I do hereby therefore find doubt in the identification evidence herein and find it unsafe to convict the defendant herein of the criminal ofience herein. 28. On the issue of the warning or notice of intention to prosecute, I do hereby find that the defendant did not discharge his burden of disproving that the same was not issued to him. I however still find the identification evidence against him to fall short of the requisite standard of proof and I do therefore enter a finding of not guilty against him. Final Disposal Orders 29. Pursuant to the provisions of section 215 of the Criminal Procedure Code, I do hereby acquit the defendant herein of the ofience of Careless Driving C/s 49(1) of the Traffic Act as charged herein. The Kshs. 20,000 cash bail deposited on his behalf herein should therefore be released to the depositor. DATED, SIGNED AND DELIVERED AT NYAHURURU IN PEN CPURT THIS 12TH , DAY OF JANUARY, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of: Court interpreter: Tiktik Prosecution counsel: Chelangat Kamanga present for Accused Defendant: Present 1st Victim: n/a 2nd Victim: n/a 3rd Victim: n/a 4th victim: n/a 5th victim: n/a 6th victim: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/126/eng@2017-01-12 9

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