Republic v Waigwa (Traffic Case 104 of 2012) [2017] KEMC 131 (KLR)

that on 03.02.2012, at about 7.30pm, along Nyahururu - Nyeri road at Mairo-inya area in Nyandarua County, being the driver of motor-vehicle reg. no. KBD 165 Y Toyota matatu, he drove the said motor vehicle along the said road dangerously having regards to the nature, condition and amount of trafic at the particular time and caused an accident to a motorcyclist namely Chrispaul Muchai Kimani aged 24 years who died on the spot. The records of proceedings herein show that the defendant was on the same day released on a bond of Kshs. 50,000/= upon presenting a surety of a similar amount. He has therefore been out on the bond throughout the duration of the trial herein. He was unrepresented. 5. The prosecution on the other hand was conducted by oficers, CI Masinde, a police prosecutor, and Ms. Wambua, 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. 6. Hearing commenced before Hon. W. Chepseba, Acting Chief Magistrate (Ag.CM)- as he then was- on 12.04.2013, with 2 prosecution witnesses, PW1 and PW2, whose main roles was to identify the body for the post mortem exercise, testifying. On 15.05.2015, following the transfer of the trial magistrate, and the typing of the proceedings to enable me continue with the hearing as per the directions under section 200 of the Criminal Procedure Code, which I took on 05.02.2014, I took over the hearing and received the evidence of the other prosecution witnesses. After several other adjournments, the prosecution was unable to avail the evidence of the medical oficer who conducted the post-mortem herein. On 30.11.2016, I therefore declined to extend the hearing any further. The prosecution was therefore forced to close its case without the evidence of the doctor. 7. All the other adjournments and the reasons therefor have been well captured in the record of proceedings herein and do not therefore require any further explanation herein. Facts of the Case 8. As aforestated, the first 2 prosecution witnesses were PW1, Joseph Ndungu Wanjuki, and PW2, John Esimit Esokoro, who were not present during the accident herein. Their evidence was limited to them identifying the body of the deceased during the post-mortem exercise. The next witness, PW3, Joseph Kinyua Karimi, from Nyahururu District County Hospital (formerly Nyahururu District Hospital) was stood down and did not therefore give any evidence herein. PW4, Haron Cherono, a motor vehicle inspector produced the motor-vehicle inspection report herein on behalf of his colleague, Mr. Osodo. His evidence is that the motor-vehicle herein had no pre-accident defect. The final witness was PW5, No. 83XXXX PC Hussein Mohammed, whose evidence was limited to the investigations that he found. 9. The prosecution' s case was thereafter closed. Issues, Burden and Standard of Proof 10. 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 this stage is 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. 11. The case of Republic Vrs 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. 12. In establishing a prima facie case herein, the prosecution was supposed to have proved to the required standard of beyond reasonable doubt that the defendant herein was the driver of the motor-vehicle https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/131/eng@2017-01-10 2

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herein at the time of the accident, that the motor-vehicle herein was involved in the accident herein, that the accident was caused by the defendant by his dangerous manner of driving and that the deceased died as a result of the accident. Determination 13. No witness was called to prove to the required standard of beyond reasonable doubt that the defendant herein was driving the motor vehicle herein at the time of the accident. There was in fact no eyewitness called to prove how the accident happened. All the issues raised by the investigating oficer in his evidence on how the accident happened are all hearsay. By virtue of section 63 of the Evidence Act such oral evidence, for it to be admissible, must be direct1. The cause of the deceased's death was also not proved to the required standard herein since there was no medical evidence of the death adduced by the prosecution, despite ample opportunities availed to the prosecution since 2012 to avail the evidence. 14. It cannot therefore be said with a degree of certainty required in criminal trials that the defendant herein drove the vehicle herein in a dangerous manner that he caused the accident herein; or that the deceased herein died as a result of the accident. 15. I do therefore find no prima facie case disclosed to warrant me calling the defendant herein to make his defence as required under section 211 of the Criminal Procedure Code. Doing so will be tantamount to, for example, calling upon the defendant herein to prove that he was the driver of the vehicle herein, or to exonerate himself from the allegations herein. He is not the author of the allegations against him herein. He is therefore not bound to prove or disprove any of the allegations herein. In other words the burden of proving that the defendant herein was driving the motor-vehicle herein at the time of the accident, or that he was driving dangerously at the time, or that he caused the accident herein, or that the deceased died as a result of the accident herein, are not issues whose burden of proof shifts to the defendant herein. He can as well opt to remain silent in his defence which shall still leave the prosecution's case as unproved and shall still entitle the defendant herein to an acquittal. To call upon him to make his defence herein shall therefore a waste of time. That is the reason why provisions of section 210 of the Criminal Procedure Code exist. The provisions are meant to safeguard the defendant's right to remain silent as provided for under Article 50(2)(i) of the Constitution of Kenya, 2010. 16. The High Court in Republic Vrs Kennedy Otieno & 6 Others, supra, addressed the point as follows: It must be remembered that at the close of prosecution case, an accused has a right to keep silent in his defence. An accused person is brought to court by the prosecution. It is upon the prosecution to prove a case against an accused person beyond reasonable doubt. An accused person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 1 Section 63 of the Evidence Act provides as follows: 'Oral evidence must be direct (1) Oral evidence must in all cases be direct evidence. (2) For the purposes of subsection (1) of this section, “direct evidence” means — (a) with reference to a fact which could be seen, the evidence of a witness who says he saw it; (b) with reference to a fact which could be heard, the evidence of a witness who says he heard it; (c) with reference to a fact which could be perceived by any other sense or in any other manner, the evidence of a witness who says he perceived it by that sense or in that manner; (d) with reference to an opinion or to the grounds on which that opinion is held, the evidence of the person who holds that opinion or, as the case maybe, who holds it on those grounds: Provided that the opinion of an expert expressed in any treatise commonly ofiered for sale, and the grounds on which such opinion is held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable...' https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/131/eng@2017-01-10 3

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17. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the defendant herein to be called upon to make his defence herein. The upshot is that I do hereby enter a finding of not guilty against the defendant herein. Final Disposal Orders 18. Pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby dismiss the charge herein and consequently do hereby acquit the defendant herein of the ofience of Causing Death by Dangerous Driving c/s 46 of the Traffic Act. The surety herein is also hereby discharged and any security deposited on his behalf herein to be released to the depositor. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 10TH DAY OF JANUARY, 2017 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court clerk/ interpreter: Tiktik Court prosecutor: Chelangat Defendant: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/131/eng@2017-01-10 4

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