Republic v Ngugi (Traffic Case E007 of 2026) [2026] KEMC 331 (KLR)

restaurant they were to meet at. PW2 rushed to the scene. He requested the motorcyclist to ferry PW1 to hospital but he lied that he was going to refuel his motorcycle and fied the scene. PW2 managed to get PW1 to hospital where he was treated. Both PW1 and PW2 testified that they a photograph of the motorcycle’s number plate had been taken but that the rider was wearing a helmet at the material time. 6. Dennis Kamau Mwangi (PW5), a clinical oficer working at Maragua sub county hospital testified that PW1 was found to have sustained a fracture of the tibia bone as a result of the accident. The degree of injury was assessed as grievous harm as he injury could lead to permanent disability or to the detriment of the quality of his life. 7. Regarding the arrest of the accused, PC Joshua Mugo (PW3) testified that he was called by Inspector Mercy Mutishya (PW6) and informed that she was looking for the subject motorcycle which had been involved in an accident. PW3 called Watu Creditors who availed to him their client’s details. He reached out to Patrick Muhoro (DW2), the motorcycle’s owner and organized for a meeting but when Patrick saw PW3, he recognized him and fied. Together with PC Edwin Chege (PW4) they followed Patrick and arrested him. Upon interrogating him, they found out that his brother, the accused, was the one riding the motorcycle at the material time. DW3 led the oficers to the accused who led them to the place where the motorcycle was hidden. PW3 testified that the motorcycle had been taken to the police station by towing as it was not working at the time. 8. The investigating oficer, PW6, recounted how the accident had been reported and the steps she took after receiving the report. She added that she had visited the scene and documented it by drawing a sketch plan. The plan was based on the testimony of PW1 as she was not present at the scene. An examination of the motorcycle showed that it had no pre- accident defects. 9. In his sworn statement, the accused told the court that he had not been riding the subject motorcycle since August as it had broken down in July. Since then, he had been selling vegetables in the market. Concerning his driver’s licence, the accused testified that he had one prior to the accident as the area MP used to help them renew their licences. He also testified that an insurance had been taken out for the motorcycle. 10. For his part, DW2 confirmed that the subject motorcycle belonged to him but reiterated that it had broken down at the material time. He testified that the accused had a licence at the time but the motorcycle did not have insurance. Issues, Analysis and Determination 11. The accused person has been charged with 3 counts relating to riding the subject motorcycle contrary to the law. 12. The first charge was careless riding contrary to Section 49 (1) of the Traffic Act. The provision stipulates; 49. Driving without due care and attention 49 (1) Any person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an ofience and liable— https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/331/eng@2026-07-09 2

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(2) (a) for a first ofience, to a term of imprisonment not exceeding one year or a fine not exceeding one hundred thousand shillings; (b) for a second or subsequent ofience, to a term of imprisonment not exceeding two years or to a fine not exceeding two hundred thousand shillings, and the court may exercise the power conferred by Part VIII of suspending any driving licence or provisional driving licence held, by the ofiender disqualified from holding or obtaining a driving licence for a period of twelve months starting from the date of conviction or the end of any prison sentence imposed under this section, whichever is the later. Where any person is charged with an ofience under section 47 and the court considers that the evidence is such as to justify a conviction under this section but not under section 47, the court may convict such person of an ofience under this section. 13. The ofience proscribed in the foregoing provision is “Driving without due care and attention.” In the present case, the accused was charged with the ofience of “Careless riding,” which is an ofience unknown to law. In the case of Benard Opiyo Ouma v Republic [2018] KEHC 9696 (KLR) the court held that an ofience of driving without due care and attention was not synonymous with an ofience of careless riding as the later implies much more than mere negligence. Careless driving would be a gross deviation from what is expected of a reasonable person. The error in the charges preferred against the accused is uncurable under Section 382 of the Criminal Procedure Code as it goes to the accused person’s Constitution right under Article 50 (n) not to be convicted for an act or omission that was not at an ofience at the time it was committed. Accordingly, the accused is acquitted of the first count. 14. As to the ofience of riding an uninsured motorcycle on a public road and riding a motorcycle without a driving licence contrary to the Act. 15. There was no evidence led by the prosecution witnesses to show that the subject motorcycle had been inspected to confirm that its insurance was valid or that the accused had failed to produce his driving licence at the scene. 16. Undoubtedly, the direct evidence of PW1 and PW2 established that the subject motorcycle had knocked down PW1 while he was riding his bicycle at the material time. PW1 testified that he had taken a photograph of the number plate of the motorcycle that had knocked him down. PW2 also arrived at the scene a short while later and found the motorcycle at the scene. However, the identity of the rider was not conclusively established as both PW1 and PW2 testified that the rider was wearing a helmet at the material time. Additionally, neither PW1 nor PW2 testified as to whether the rider had a valid insurance or driving licence at the time. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/331/eng@2026-07-09 3

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17. The arresting oficers PW3 and PW4 and the investigating oficer PW6 only apprehended the subject motorcycle and the accused afew months after the occurrence of the accident. Their evidence as to whether the accused had a valid insurance or driving licence at the material time was inconsequential. 18. Moreover, PW3 and PW4 testified that they had arrested the accused based on his brother’s (DW2) statement that the accused was the one in possession of the motorcycle at the time. It was also the oficers’ evidence that the accused’s brother was the registered owner of the subject motorcycle. DW2’s statement regarding the accused’s possession of the motorcycle cannot be the basis for a conviction without corroboration as it amounts to accomplice evidence. Such evidence is evidence of the weakest kind as DW2 could easily have implicated the accused to save himself. (See John Nduati Ngure v Republic Criminal Appeal No. 121 OF 2014 CA NRI [2016] eKLR ) 19. The evidence adduced before this court has established that PW1 was involved in an accident with the subject motorcycle at the material time. The prosecution was however required to prove the charges against the accused beyond reasonable doubt but it failed to do so. The dismissal of the criminal charges herein cannot be a bar to civil proceedings against the registered owner of the motorcycle. 20. The upshot of the foregoing is that this court finds that the prosecution failed to establish the charges preferred against the accused. He is acquitted of all three (3) counts under Section 215 of the Criminal Procedure Code, and set at liberty unless otherwise lawfully held. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 9TH DAY OF JULY 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE Judgment read in open court in the presence of; Mr. Mburu for the state C/A Jeremiah Accused in person https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/331/eng@2026-07-09 4

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