Amani Mazuri Haji v Republic [2015] KEHC 3593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CRIMINAL APPEAL NO. 132 OF 2013

AMANI MAZURI HAJI....…............................................... APPELLANT

VERSUS

REPUBLIC  ……….……............................................RESPONDENT

(From original Conviction and Sentence in Criminal Case No. 5254 of 2013 of the Chief  Magistrate's Court at  Mombasa – Hon. Ruguru – SRM)

JUDGMENT

The appellant was Convicted and sentenced to two (2) years imprisonment on the first count and two months imprisonment on the 2nd Count. In the first Count he  had been charged with causing death by dangerous driving  contrary to section 46 of the Traffic Act.

The particulars being that:-

“On the 3rd day of May, 2013 at around 2100 hours along  new Nairobi – Mombasa road near  Raffia bags Company in Changamwe Mombasa County being the rider of motor cycle registration No. KMCL 902T make Haojin, rode the said motor cycle along the said public road in a  manner which was dangerous to the public having regard to all the circumstances of the case including nature, condition and use of the road and the amount of traffic which is actually at the time of which might reasonably be expected  to be on the road, in that  while overtaking another motor vehicle he changed lane from  left to right without proper clearance of the road and collided with an on coming motor vehicle registration No. KAZ 867 Q make Nissan matatu  causing death to a pillion passenger  namely Mbwana  Mabinu”.

On the 2nd count the appellant was  charged with riding a motor cycle  on a public road without  insurance contrary to  rule 25A (4) of the Traffic amendment rules 2009 Laws of Kenya.

A perusal of the record of proceedings in the lower court do not indicate what language was used in the taking of plea.

Article 50(2) which is  on fair hearing provides,

“Every Accused person has the right to a fair trial, which includes the   right-

(a)  ….......

(b)  To be informed of the charge, with  sufficient detail to answer it.

(c)  …..........

(d)  …........

(e)  ….......

To have the assistance of an  interpreter without payment if the  Accused person cannot understand       the language used at  the trial”.

As pointed out Supra there is no indication of what language was used. It is not shown whether it was English or Swahili language.

The appellant was convicted on his own plea of guilty.  It can it  be safe to say that he actively and substantially participated in the conduct of the proceedings (like exhaustively cross-examining Witnesses).  His role in these proceedings was peripheral in nature.

A perusal  of the facts  by the prosecution only indicate that:-

“he changed his lane from left  to right in view of overtaking a motor vehicle which was  ahead of him, as  a result it collided  with an  on coming motor vehicle”.

It is  not stated in which manner this constituted dangerous driving and as such  the facts  did not disclose the offence of causing, death by dangerous driving driving.

I find  that this is a fair case for retrial.  It is accordingly ordered  that the finding and sentence by the lower court is hereby reversed and Appellant to be tried by a Court of Competent jurisdiction.

Mention before the Chief magistrate  on 15th July, 2015 for plea  taking and  further orders.

Ruling delivered dated and signed this 9th day of July, 2015.

…..................

M.  MUYA

JUDGE

9TH JULY, 2015

In the presence of:-

Learned Counsel for the prosecution Miss Nandi

Learned Counsel for the defence Mr. Omari

The appellant present

Court Assistant Musundi

M. MUYA - JUDGE