Republic v Dawa (Traffic Case E512 of 2022) [2026] KEMC 294 (KLR)

into the rear of the trailer. The witness stated that several passengers were injured. PW 1 identified the accused person as the driver of the Lorry on the material night. 3. PW 2 David Kioko testified that he was a motor vehicle inspector working with the National Transport and Safety Authority. The witness stated that he inspected motor vehicle registration number KCV 107T and Trailer registration number ZD 7349. He produced the inspection reports in evidence. PW 3 Jacinta Wanjiku Gikaru testified that on the material night, she was a passenger in the Matatu and was seated behind the driver. The witness stated that she just heard a bang then later found herself alone in the motor vehicle. She got out and realised that the motor vehicle had rammed into a trailer. PW 4 Doctor Emmanuel Lopoisha testified that he did a post-mortem on the body of Naomi Wanjiku. The witness produced the post-mortem form in evidence as well as a P3 form for PW 3. 4. PW 5 Police Sergeant Patrick Rotich testified that he was the investigating oficer in respect of the accident. That on the material night, he received information on the accident then proceeded to the scene. He established that motor vehicle registration number KCV 107T Matatu had rammed into the rear of motor vehicle registration number KBQ 236B/ZD 7349. The witness stated that there were injured passengers in the Matatu. That he realised that the trailer tyres were fiat but there were no warning signs to show that the motor vehicle had stalled. The witness stated that the trailer had one chevron only placed at the middle and that the refiector indicator was broken. 5. The investigating oficer stated that he caused the motor vehicles to be towed to Mtito Andei police station where they were inspected. The produced the rough and fair sketch plans in evidence. PW 5 later recorded a statement from the accused person. The witness stated that one passenger known as Naomi Wanjiku later succumbed from the injuries sustained in the accident. PW 5 blamed the accused person for obstruction. That he had left the motor vehicle on the road after it had broken down. The Defence Case 6. When the accused person was placed on his defence, he opted to give a sworn testimony without calling any other witness. The accused person admitted that he was the driver of motor vehicle registration number KBQ 236B/ZD 7349 on the material night. He also admitted the occurrence of the accident involving the motor vehicle and the Matatu. The accused person stated that he was in motion when the Matatu driver attempted to overtake him. That there were oncoming motor vehicles and in the process, the Matatu rammed into the rear of the trailer. The accused person stated that the Matatu driver was driving at a high speed and failed to keep a safe distance. That the accused person tried to swerve to give the Matatu driver space but there was not enough room. The accused person explained that he escaped from the scene after members of public threatened to beat him up. The accused person maintained that the motor vehicle he was driving was in motion at the time of accident. Undisputed Facts 7. From both the prosecution and defence evidence, the following facts are not in dispute: a. The accused person was the driver of motor vehicle registration number KBQ 236B/ZD 7349 on 31/7/2022; b. There was an accident between motor vehicles registration numbers KCV 107T and KBQ 236B/ZD 7349 on 31/7/2022; c. The accident occurred between 11:00 pm and midnight at Kanga area along Mombasa-Nairobi highway on the material night; https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 2

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d. Motor vehicle registration number KCV 107T rammed into the rear of trailer registration number ZD 7349. Main Issues for Determination 8. In my opinion, given that most of the facts are not in dispute, the main issues for determination are: i. Whether the accused person caused obstruction that led to the accident; ii. Whether the deceased herein died as a result of injuries sustained in the accident; iii. Whether the prosecution has established its case against the accused person beyond reasonable doubt. Analysis and Determination 9. I have carefully considered the charge against the accused person alongside the evidence on record. I have further considered the applicable law. The defence was granted leave to file submissions but as at the time of writing this judgment, no submissions had been filed by the defence. As already indicated, the occurrence of the accident and involvement of the accused person’s motor vehicle as well as motor vehicle registration number KCV 107T is not in dispute. Section 46 of the Traffic Act 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 leaving 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 trafic which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an ofience whether or not the requirements of section 50 have been satisfied as regards that ofience 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 ofiender and declaring the ofiender 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.” 10. Section 2 thereof defines road as: “ …….any public road within the meaning of the Public Roads and Roads of Access Act (Cap. 399), and includes any other road or way, wharf, car park, footpath or bridle-path on which vehicles are capable of travelling and to which the public has access.” 11. 12. In my view, the key ingredients of the ofience of causing death by obstruction are as follows: 1. Leaving a motor 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; and 2. Causing the death of another person. In the case of Atito v R [1975] EA 278, it was held that to justify a conviction of the ofience of causing death by dangerous driving, there must not only be a situation which, viewed objectively was dangerous, but there must also be some fault on the part of the driver causing that situation. In other words, it must be proven that the accident complained of was as a result of some fault on the part of https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 3

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the accused driver. In the case of R v Gosney [1971] 3 ALL ER 220, it was held that an accident by itself is not conclusive evidence of careless or dangerous driving. There must be evidence to the efiect that the driver charged was at fault. In Gosney's case (supra) the court defined the term fault as follows: “ Fault certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame......fault involves a failure, a falling below the care or skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case. A fault in that sense even though normally no danger would have arisen from it is suficient”. 13. 14. The above authorities are in respect of dangerous driving but the same reasoning applies to a case where it is alleged that the accident was as a result of obstruction by the accused person. There must be evidence that the accused driver was at fault. Section 53 of the Traffic Act provides: “ (1) No vehicle shall be allowed to remain in any position on any road so as to obstruct or to be likely to obstruct or cause inconvenience or danger to other trafic using the road, and, save where the contrary is expressly provided in this Act, every vehicle on a road, when not in motion, shall be drawn up as close to the side of the road as possible. (2) The driver of any vehicle shall, in case of a break-down, remove the vehicle from the road as soon as possible, and until so removed the vehicle shall be placed as close to the side of the road as possible; and as the vehicle remains on the road between the hours of 6.45 p.m. and 6.15 a.m., its position shall be clearly indicated by a light or lights visible to drivers of vehicles approaching from either direction. (3) If any part of the vehicle remains on or near the road in a position so as to obstruct or to be likely to obstruct or to cause or to be likely to cause inconvenience or danger to other trafic using the road, the driver shall place on the road not less than fifty metres from the vehicle two red refiecting triangles of such construction and dimensions as may be prescribed, one ahead of the vehicle and one behind it so that each is clearly visible to drivers of vehicles approaching from ahead or behind, as the case may be.” The onus is on the Prosecution to prove its case against the accused person beyond reasonable doubt. The accused person is under no duty to prove his innocence. It is for this reason that the accused person has a right to remain silent in his defence. It is not for the accused person to convince the court that he is innocent. Rather, it is for the Prosecution to tender evidence suficient to prove no other narrative than that of the guilt of the accused person. This standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v Nebraska, 511 U.S. 1 (1994); Rex v Summers, (1952) 36 Cr App R 14; Rex v Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v Hepworth, R. v Feamley, [1955] 2 All E.R. 918). https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 4

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15. Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the ofience charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. 16. For the court to return a verdict of “guilty” on the part of the accused person, the Prosecution evidence must establish fault on the part of the accused person in driving the motor vehicle. The prosecution had a duty to prove a version that would establish guilt on the part of the accused person beyond reasonable doubt. The accident involved two motor vehicles. The collision was done by motor vehicle registration number KCV 107T and it was the accused person’s motor vehicle that was hit. For the court to find the accused person guilty, the prosecution must adduce cogent evidence that proves beyond reasonable doubt that it was the accused person and not the driver of motor vehicle registration number KCV 107T who was at fault. 17. Given the nature of the ofience with which the accused person is charged, the provisions of section 46 of the Traffic Act must be read together with those of section 53 thereof. However, for the court to invoke the aforesaid provisions of the Traffic Act, there must be suficient and acceptable evidence to show that the motor vehicle that the accused person was driving had stalled as at the time of accident. The only eye witness on the part of the prosecution who testified that the accused person’s motor vehicle had stalled was PW 1. This was the driver of motor vehicle registration number KCV 107T. PW 1 testified that he was going down a steep when he saw the accused person’s motor vehicle about 5 metres away, although he demonstrated a distance of over 20 metres away, when he was cross-examined by counsel for the accused person. That he could not veer to the right as there were oncoming motor vehicles and could also not veer to the left as there were bushes. 18. When PW 1 was cross-examined by counsel for the defence, he stated that there was a small hilly terrain on the road but the accident occurred as he was going downhill. The investigating oficer stated that the road at the scene was straight with no bend. Even the sketch plan produced in evidence shows that the road was straight. There is no evidence to show the existence of any obstruction between the Matatu and the accused person’s motor vehicle. PW 1 stated that the accused person’s motor vehicle had covered the whole lane but the investigating oficer stated that it was partly on the tarmac and partly ofi the tarmac. His sketch plan shows the same position with respect to the accused person’s motor vehicle. The accused person’s evidence was that he partly veered ofi the road to give room to PW 1 who was overtaking as there was an oncoming motor vehicle. 19. The prosecution alleges that the accused person’s motor vehicle had stalled on the road. In his testimony in-chief, the investigating oficer stated that when he visited the scene on the material night, he saw that the trailer had fiat tyres. That it was an indication that the accused person’s motor vehicle had broken down. However, when the investigating oficer was examined by the court, he stated that there were no fiat tyres on the lorry and trailer. The investigating oficer further stated that the trailer had no chevrons and indicators. He even went and extra mile to bring new chevrons and indicators in court for purposes of demonstration. 20. I have perused the motor vehicle inspection report in respect of the accused person’s motor vehicle. The report indicates that refiectors and warning signs on the trailer were intact. It also shows that the wheels were intact. The investigating oficer is not a motor vehicle inspector. I would not take his word over the report by an expert. Furthermore, the motor vehicle inspector stated in his report and https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 5

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evidence that the trailer had no pre-accident defects. There is absolutely no material evidence to show that the accused person’s motor vehicle had broken down or was mechanically defective. Given the circumstances, I would have no reason to disbelieve the accused person when he stated that he was in motion when the accident occurred. 21. There being no acceptable evidence to show that the accused person’s motor vehicle had stalled, there would be no basis for invoking the provisions of section 53 of the Traffic Act. In other words, there is no suficient evidence to prove that the accused person had caused obstruction so as to cause the accident. It is highly probable that the accused person could have been in motion at the time of accident. Going by the notion that the accused person was in motion at the time of accident, is there any reason to hold him culpable for the accident? PW 1’s motor vehicle rammed into the accused person’s motor vehicle from the rear. In the authority of Orioki v Kevian Kenya Limited [2025] KECA 780 (KLR), the Court of Appeal held that under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is suficient evidence to rebut this presumption. 22. A driver is required to maintain a safe distance between his motor vehicle and the motor vehicle ahead to prevent accidents, especially in emergencies. In my considered view, if there is a motor vehicle behind another, the driver of the motor vehicle behind owes a greater duty of care to the one in front. I say so for the following reasons: a. The driver behind has a clearer view of the motor vehicle ahead and can control their own speed, distance and reaction. The driver in front cannot easily monitor what happens behind them; b. Trafic laws and road safety regulations require that the driver behind should keep or maintain a safe distance so as to be able to stop or react in time if the vehicle ahead slows down or stops suddenly. Failure to maintain a safe distance often constitutes negligence; c. When a rear-end collision occurs, the law presumes that the driver behind was negligent unless there is strong evidence to the contrary; d. The driver behind must anticipate that the vehicle ahead may slow down, stop or turn and should drive in a manner that prevents a collision even if that happens. 23. I have considered the accused person’s defence. I am aware that the accused person bears no duty of proving his defence or innocence. His testimony was that he was in motion when PW 1’s motor vehicle rammed into the rear of the trailer. Having analysed the entire evidence on record, I see no reason to disregard the accused person’s defence. In my view, PW 1 had greater control over the situation. The inspection report indicated that the speed governor for the motor vehicle that PW 1 was driving was already defective prior to the accident. It is possible that PW 1 could have been driving at a high speed. In my view, PW 1 failed to keep a safe distance between the two motor vehicles. He drove without due care and attention when visibility was not clear. 24. I see no reason as to why PW 1 could not see the accused person’s motor vehicle in good time. Had PW 1 been prudent, the accident would not have occurred. With all due respect to the prosecution, my view is that it was PW 1 who ought to have been charged with the ofience of causing death by dangerous driving. I am unable to understand the wisdom behind charging the accused person instead of PW 1. Given the fact that it was at night, PW 1 ought to have driven the motor vehicle in a manner that would have enabled him to control it in case of any eventuality. If indeed the lights of PW 1’s motor vehicle were on, I fail to understand why he could not see the trailer in good time given the terrain of the road. I cannot rule out the fact that PW 1 was overtaking but was prevented by another motor vehicle, whereupon he tried to return to his rightful lane but it was too late. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 6

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25. The prosecution has a duty of presenting a narrative that would prove fault on the part of the accused person. The fault on the part of the accused person must be established by the prosecution through evidence. Quite unfortunately, the prosecution has failed in this endeavour. I cannot state with conviction that the accused person caused the accident by obstruction, leading to the death of the deceased herein. Disposition 26. In view of the foregoing, it is my finding that the prosecution has Failed to prove its case against the accused person beyond reasonable doubt. Consequently, I find the accused person Not Guilty of the ofience of Causing death by obstruction contrary to section 46 of the Traffic Act and proceed to Acquit him accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 8TH DAY OF JULY, 2026. Y. A. SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/294/eng@2026-07-08 7

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