Republic v Mutali

Evidence Prosecution’s Case 4. PW1 Anna Nangekhe Wasike is the deceased’s mother. She recalled being woken up on the date of the incident at around 0500hrs when a certain child not known to her by name told her that he had seen someone lying next to the deceased’s motorcycle along the road at Misanga market. 5. She proceeded to the scene where she found the deceased dead. In cross-examination, she added that she could not tell whether the deceased was a licenced driver or whether the deceased’s motorcycle was insured when the accident occurred. 6. PW2 Collins Ouma Makasi recalled that on 24th December 2025 at around 0400hrs, while he was asleep in motor vehicle registration number KDT 365 S (“the motor vehicle”), driven by the Accused Person from the Webuye general direction headed to Bungoma general direction, he was woken up by a bang. 7. He woke up when he found the motor vehicle on a pavement near River Misanga. He saw an injured person and a red motorcycle lying on the left side of the road. 8. PW3 Joseph Sifuna Wasike recalled that he woke up on 25th December 2025 at around 0430hrs to escort his cousin to the bus stop. While going back home, he saw someone pushing the deceased’s motorbike from the Webuye general direction headed to the Bungoma general direction on the left side of the road. He then heard a bang, then saw a motor vehicle hitting the person who was pushing his brother’s motorcycle on the left side of the road. 9. When he reached home, someone he identied as Makokha called him and informed him that the deceased had been hit by a motor vehicle. He proceeded to the scene where he found the deceased wearing a sweater, a pair of slippers, and some clothes lying behind his motorcycle. He also noticed that the deceased had sustained a serious head injury. 10. He blamed the motor vehicle driver for knocking the deceased from behind. 11. In cross-examination, he added that visibility at the time of the accident was clear since there was moonlight. He could not tell the motor vehicle’s speed when the accident occurred. He conceded that the deceased was not wearing a helmet or a reector jacket when the accident occurred. 12. He added that the motorcycle’s lights were o during the accident since the said motorcycle was being pushed. He also stated that the motor vehicle’s headlights could still help the Accused Person see the deceased before the accident. 13. PW4 Joshua Khaemba Wafula testied that on 25th December 2025 at around 0530hrs while at home, he heard a bang from the road. PW3 later on informed him that the deceased had been involved in an accident. He proceeded to the scene where he found the deceased and his motorcycle lying on the left side of the road. He also found a motor vehicle at the scene. 14. He added in cross-examination that there was some darkness when he visited the scene and that the said darkness could aect visibility. He also stated that the deceased was neither wearing a helmet nor a reector jacket. 15. PW5 Dr. Raymond Damba conducted the deceased’s post-mortem examination on 25th December 2025 at Bungoma County Referral Hospital when he formed an opinion that the deceased’s death had been caused by cardiac arrest secondary to severe head injury. He produced the post-mortem form dated 25th December 2025 as an exhibit. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 2

page 2 of 9

16. In cross-examination, he stated that the injuries sustained by the deceased were consistent with the injuries sustained by a person who was not wearing a helmet. He added that a helmet reduces the severity of a head injury. 17. PW6 Douglas Wanjala Wasike also visited the scene after the accident. He found a white car and the deceased’s motorcycle at the scene on the left side of the road as one faces the Bungoma general direction. He added that the damage occasioned to the deceased’s motorcycle showed that the deceased’s motorcycle had been hit from behind. 18. PW7 No. 79XXX CPL Benard Chemonges of Bungoma Trac Base investigated this case. He received a call from IP Irungu on 25th December 2025 at around 0430hrs, who informed him that an accident had occurred at Misanga along the Bungoma –Webuye road. 19. He proceeded to the scene while in the company of his colleagues, where he found police ocers from Bukembe Police Station. He also found the deceased’s body o-road on the right side of the road as one faces Webuye general direction. The motorcycle was also beside the deceased’s body. He added that he also found the motor vehicle, which had been extensively damaged on its front, resting on a stone in a river beside the road on the left side of the said road as one faces the Bungoma general direction. 20. He prepared the accident’s sketch plan which he produced as an exhibit. He added that the deceased was knocked o-road, and that the damage to the motorcycle’s seat showed that the motorcycle had been knocked from behind. He also stated that the motor vehicle driver drove the motor vehicle for some distance before the stone in the river stopped it. There was no bend which could prevent the motor vehicle driver to see the deceased before the accident. 21. He produced the motor vehicle and the motor cycle’s inspection reports as exhibits. 22. cross-examination, 0430hrs is relatively dark but visibility was not an issue since the motorcycle was new and had a working reector at the back. Not insured. The absence of a licence, insurance or a reector jacket may have contributed to the accident. Defence Case 23. This court placed the Accused Person on his defence upon close of the prosecution’s case. The Accused Person elected to give sworn testimony. He recalled that he was driving the motor vehicle on 25th December 2025 at around 0500hrs from the Webuye general direction headed to the Bungoma general direction when a motorcycle suddenly joined the road. He added that there was darkness, which reduced visibility. 24. He further stated that he tried swerving but lost control of the motor vehicle and that the motor vehicle later stopped. He alighted when he noticed that he had hit a motorcyclist. He noticed that the motorcyclist was not wearing a helmet. The motorcyclist later died. He added that the motorcycle’s rear/brake lights were o when the accident occurred. 25. In cross-examination, he stated that he was driving at a speed of 90-100km/hr when the accident occurred. He admitted that whereas visibility was poor, he could see whatever was ahead of him. ANALYSIS AND DETERMINATION 26. This court has given due regard to the evidence on record. The Defence did not le any written submissions despite undertaking to do so. The only issue for determination is whether the prosecution proved its case against the Accused Person beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 3

page 3 of 9

27. The Accused Person faces a charge of causing death by dangerous driving. Section 46 of the Traffic Act sets out the said oence in the following terms: 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 trac which is actually at the time or which might reasonably be expected to be on the road, shall be guilty of an oence whether or not the requirements of section 50 have been satised as regards that oence 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 oender and declaring the oender disqualied 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. 28. In Rono v Republic (Criminal Appeal E013 of 2023) [2025] KEHC 3892 (KLR), the court stated as follows on the ingredients of this oence: “ 24. As correctly submitted by the Prosecution Counsel, it has been said that Section 46 of the Traffic Act, as was held in the case of Shah vs Republic [1969], creates 4 separate oences, namely, causing the death of another by driving a motor vehicle on a road; (i) recklessly, or (ii) at a speed, or (iii) in a manner, or (iv) by leaving a vehicle on a road in such a position or manner or in such a condition as to be dangerous to the public. 25. The Court of Appeal, in the case of Atito vs. Republic [1975] EA 281, further guided as follows: “To justify a conviction for the oence 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 the situation. 26. From the foregoing, it is evident that to prove a charge under Section 46 aforesaid, the Prosecution must demonstrate some “fault” on the part of the driver charged. Establishment of “fault” as contemplated under the Act was aptly analyzed in the case of Republic v Gosney (1971) All ER 220 and described in the following terms: “Fault” certainly does not 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 it might be slight, even though it is a momentary lapse, even though normally no danger would have arisen from it is sucient.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 4

page 4 of 9

29. 30. A reading of the authorities above reveals that in a charge of causing death by dangerous driving, the prosecution is obligated to prove the following ingredients of the oence herein beyond reasonable doubt: a. The Accused Person caused the death of another person by driving a motor vehicle on a road b. The Accused Person was driving the motor vehicle in a manner dangerous to the public when the accident occurred c. The Accused Person was at fault in causing the dangerous situation This court now proceeds to determine whether the prosecution proved the above ingredients of the oence herein beyond reasonable doubt while at the same time considering the Accused Person’s defence. a. Whether the Accused Person Caused the Death of another Person by Driving a Motor vehicle on a Road 31. It is common ground that the Accused Person was driving the motor vehicle along Webuye – Bungoma road which hit the deceased on the date of the accident. On the cause of the deceased’s death, the postmortem form dated 25th December 2025 shows that the deceased’s death was caused by cardiac arrest secondary to severe head injury arising from the accident herein. 32. The Accused Person’s counsel appeared to suggest that the deceased’s failure to wear a helmet, lack of a driving licence and failure to wear a reector jacket at the time of the accident must have contributed to the deceased’s death. PW6, who conducted the deceased’s post-mortem examination, also testied that a helmet reduces the severity of head injuries. 33. PW3, PW4 and the accident’s investigating ocer (PW7) conrmed that the deceased was not wearing a helmet and a reector jacket when the accident occurred. There is also nothing on record to show that the deceased was a licensed rider when the accident occurred. 34. However, the concerns above raised by the defence are ordinarily and properly raised where a party wants to prove contributory negligence on the part of another person in civil cases. This was well explained in Rono v Republic (Criminal Appeal E013 of 2023) [2025] KEHC 3892 (KLR) where the court stated: “ 32. I may however also say that had this been a civil case, I would most probably have also found the rider to have been contributory negligent since it is also clear that he, too, did not maintain proper lookout and he, too, was reckless. He must have been speeding and must have failed to maintain a safe distance between him and the bus thus nding himself with no room to manouvre when the bus suddenly slowed down or stopped. I also notice that he was carrying up to 3 pillion passengers which, besides being illegal, is likely to have also contributed to his failure to safely steer or control the motor-cycle and to avoid emergencies such as the one he encountered herein. However, this being a criminal case with a specic charge facing the Appellant, the rider’s contributory negligence would be of no assistance to the Appellant. Were he alive, he would have most probably also faced his share of trac charges.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 5

page 5 of 9

35. In criminal cases, like in the instant case, the Accused Person is supposed to take their victim as they found them. This is in line with the thin skull rule or the eggshell rule, which the Court of Appeal explained in Longalom v Republic (Criminal Appeal 22 of 2015) [2022] KECA 725 (KLR) as follows: 18. This brings us to the doctrine of causation, which simply refers to the relationship of cause and the eect between one event or action and the result. Was there a correlation between the appellant dropping the deceased onto the ground and her death? We have no doubt in our minds that the two events were related. It could be possible that the deceased had a health condition which had nonetheless not manifested itself before the appellant’s action, and had remained unnoticed but for the appellant’s action of dropping her to the ground. Criminal law nonetheless prescribes that we must take our victims the way we nd them, hence the egg shell, or thin skull rule. The deceased may have had a fragile neck or skull or indeed any other health condition, but she had not died from the same and only died after she was pushed by the appellant. It is worth noting that the deceased was pronounced dead on arrival at Maralal District Hospital before any other intervention. This makes the appellant directly responsible for the act that caused the deceased’s death. (Emphasis added) 36. Guided by the authority above on the thin skull rule, whether the deceased was a licenced rider, whether the deceased wore a helmet or a reector jacket at the time of the accident is not of concern to this court on the cause of the deceased’s death. The Accused Person must take the deceased as he found him. 37. The proximate and primary cause of the deceased’s death, therefore, was the Accused Person’s driving of the motor vehicle on the road herein. 38. It is against this backdrop that this court nds that the prosecution proved beyond reasonable doubt that the Accused Person caused the deceased’s death by driving a motor vehicle on the road herein. b. Whether the Accused Person was Driving the Motor Vehicle in a Manner Dangerous to the public when the Accident Occurred 39. The prosecution’s case is that the Accused Person was dangerously driving the motor vehicle herein when the accident occurred. The Accused Person disputed this position. 40. In Pyarali V Republic [1971] EA 169, dangerous driving was dened as follows; “ the test of whether a piece of driving is dangerous is objective and if the manoeuvre itself is dangerous the degree of negligence or care of the driver is irrelevant.” 41. Guided by the authority above, the question which this court needs to answer at this stage is whether, from an objective point of view, the Accused Person was dangerously driving the motor vehicle when the accident occurred. This is to mean that this court must answer the question of whether, considering the circumstances under which the accident occurred, a reasonable person walking along the streets and footpaths of Bungoma would conclude that the Accused Person was dangerously driving the motor vehicle when the accident occurred. 42. The sketch plan produced by PW7 shows that the point of impact was o road on the left-hand side of the road while one faces the Bungoma general direction. PW3, who witnessed the accident, conrmed https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 6

page 6 of 9

as much. PW4 and PW6, who visited the scene after the accident, also conrmed that the accident occurred on the left side of the road as one faces the Bungoma general direction. 43. The contents of the sketch plan and the above prosecution witness's testimony on where the accident occurred were not controverted by the Accused Person. This proves beyond reasonable doubt that the deceased was on the correct side of the road when the accident occurred. 44. There is nothing on the record to suggest that there was trac build-up along the road at the time of the accident which forced the Accused Person to drive his motor vehicle o-road. 45. Further, whereas the Accused Person conceded that visibility was poor at the time the accident occurred, he testied that he was driving the motor vehicle at 90 – 100km/hr when the accident occurred. Clearly, such a speed is not a speed at which a reasonable person ought to drive a motor vehicle when visibility is poor. It should be remembered that the Accused Person admitted that he could still see whatever was ahead of him despite the visibility challenges. 46. The fact that the Accused Person was driving the motor vehicle o road when the road was clear at a speed of 90 – 100 km/hr at a time when visibility was poor, coupled with the fact that the Accused Person could still see whatever was ahead of him but still knocked the deceased from behind, when subjected to the objective test explained above, leaves no doubt in this court’s mind that the Accused Person was driving the motor vehicle in a manner dangerous to himself and other road users when the accident occurred to the extent that he could not brake or swerve on time to prevent the occurrence of the accident. c. Whether the Accused Person was at Fault in Causing the Dangerous Situation 47. “Fault” was dened by the Court of Appeal in Orweryo Missiani v Republic [1979] KLR 285 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 it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sucient.”(Emphasis added) 48. This court’s reading of the authority above is that fault is established against a driver if the circumstances of the case point to an irresistible conclusion that the Accused Person failed to exercise due care and skill expected of a competent and experienced driver, thereby causing the dangerous situation which caused the accident. 49. This court has already made a nding above that there was no reason whatsoever for the Accused Person to drive o road when the accident occurred. The sketch plan on record also shows that there was no bend around the scene of the accident which could have caused the Accused Person to lose control of the motor vehicle herein. 50. Whereas the Accused Person sought to blame the deceased for causing the accident by suddenly joining the road, the sketch plan on record does not show any feeder road or exit road near the scene of the accident. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 7

page 7 of 9

51. Further, the certicates of examination and test of vehicle/ inspection reports on record (Pexh. 4 and 5) show that the motor vehicle hit the motorcycle from behind, causing damage to the motorcycle’s rear near side/ left side. 52. This court takes the view that had the deceased suddenly joined the road, given that the motor vehicle was being driven on the left side of the road, the motor vehicle would have damaged the motorcycle either on the front left side or rear right side.In any event, even if the deceased joined the road suddenly, the Accused Person had a duty to brake on time and swerve to prevent the occurrence of the accident. The sketch plan does not show any skid marks to suggest that the Accused Person applied the brakes to prevent the occurrence of the accident. 53. In the circumstances, the Accused Person’s evidence that the deceased suddenly joined the road leading to the accident lacks any basis. 54. The motor vehicle’s inspection report herein also shows that the motor vehicle the Accused Person was driving when the accident occurred did not have any pre-accident defects, meaning that the said motor vehicle’s headlights were fully functional when the accident occurred. The Accused Person also admitted that despite the visibility challenges, he could easily see whatever was ahead of him. This shows that the Accused Person could easily have seen the deceased even if the deceased’s motorcycle’s rear lights/brake lights were on or o, or even if the deceased was wearing a reector jacket or not. 55. The law in this jurisdiction is that where a driver hits another motor vehicle or road user from behind, such a driver is deemed to have been prima facie at fault in causing the accident (see Ngamenya v Republic [2018] KEHC 3632 (KLR)). The Accused Person did not dislodge the prima facie case of fault established against him by the prosecution. 56. The fact that the motor vehicle the Accused Person was driving did not have any pre-accident defects also shows that the said motor vehicle’s mechanical failure did not cause the accident herein. The Accused Person must be blamed for causing the accident. 57. Given the analysis above, and taking the totality of the circumstances of this case into consideration, this court nds and holds that the Accused Person was at fault in causing the accident herein by losing control of the motor vehicle, thereby knocking the deceased o the road from behind while driving the motor vehicle herein at an unreasonable speed when visibility was poor. Accused Person’s Defence 58. This court has duly considered the Accused Person’s defence while determining whether the prosecution proved its case beyond reasonable doubt. The prosecution’s evidence on record dislodged the Accused Person’s case. It is against this backdrop that this court dismisses the Accused Person’s defence in its entirety. Determination 59. The upshot of the above is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the oence of causing death by dangerous driving contrary to section 46 of the Traffic Act. 60. It is so ordered. JUDGMENT READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 14TH DAY OF SEPTEMBER 2026 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 8

page 8 of 9

T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Mulwa for the ODPP Mr. Nakhurenya for the Accused Person Accused Person C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/901/eng@2026-09-14 9

page 9 of 9