BENJAMIN ROBI GITHENJI vs REPUBLIC [2001] KEHC 247 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPEAL NO.636 OF 2001

BENJAMIN ROBI GITHENJI ……………………...…. APPELLANT

VERSUS

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

JUDGEMENT

Benjamin Robi Githenji (the appellant) was charged with causing death by dangerous driving contrary to section 46 of the Traffic Act and failing to stop after accident contrary to section 73 of the same Act. He was convicted as charged after a full trial and sentenced to serve two and half years imprisonment for causing death by dangerous driving and fined Shs.500 or in default to serve one month imprisonment. He has appealed against sentence only, essentially on the ground that the sentence meted out was extremely harsh in the circumstances of this case.

The appellant was employed at RUSINGA SCHOOL as a driver. On the 14th June, 1999 at about 6. 00 a.m. he was driving the said school’s bus registration No. KAD 618Y Isuzu towards Buru Buru to go and collect children. While driving along Argiwings-Kodhek Road within Nairobi he crashed a pedal cyclist James Anaya Ombima who was riding in the opposite direction, causing his death instantly.

The facts which the prosecution proved beyond reasonable doubt, accepted by the trial magistrate and which the appellant has not denied, are that the accident occurred because the appellant, while driving at high speed, was in the process of overtaking motor vehicle Reg. No.KAJ 797 G driven by John Oyagio Muga (PW 2) when he crashed to death a pedal cyclist who was riding towards the opposite direction, and who was on his proper side. The road at the point of impact is marked with a yellow continuous line at the middle, signifying that overtaking of other motor vehicles at that spot is prohibited by the traffic Rules.Besides, the appellant has also accepted that he did not stop after the accident. His defence that it was the matatu driver (PW 2) who crashed the deceased was rejected by the trial magistrate.

The offence of causing death by dangerous driving under Section 46 of the Traffic Act carries a maximum, but not a mandatory, sentence of ten years imprisonment. In Govid Shamji V. Republic (unreported) Criminal Appeal No.30 of 1975 (Nairobi) Madan and Cheson JJ had this say about the principle of sentencing persons convicted of a traffic offence under Section 46 of the Traffic Act:

“The offence of causing death by dangerous driving is not an ordinary type of crime. While it cannot be given an aura of protection by putting it in a glass case of its own, the people who commit this offence do not have a propensity for it, neither is it a type of crime committed for gain, revenge, lust or to emulate other criminal s. In a case of causing death by dangerous driving, a custodial sentence does not necessarily serve the interests of justice as well as the interests of the public. There are of course cases where a custodial sentence is merited, for example, when there is a compelling feature such as an element of intoxication or recklessness.”

In my view however the decision of LANTON L.J. in R.V. GUILFAYLE (1973) 2 All.E.R.844 has a compelling and commanding analysis of cases falling under Section 46 of the Traffic Act and set down acceptable principles of sentencing in relation to this offence which I find favour with. His Lordship LANTON had this to say:

“The experience of this court has been that there have been many variations in penalties. Some variations are inevitable because no two road accidents are alike, but there are limits to permissible variations and it may be helpful if this court indicates what they are. Cases of this kind fall in two broad categories.

First, those in which the accident has arisen through momentary inattention or misjudgment. Secondly, those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users or his passengers or with a degree of recklessness. A subdivision of this ca tegory is provided by the cases in which an accident has been caused or contributed to by the accused’s consumption of alcohol or drugs.

Offenders too can be put into categories. A substantial number have good driving records, a fair number have driving records which reveal a propensity to disregard speed restrictions, road signs or to drive carelessly, and a few have records which show that they have no regard whatsoever for either the traffic law or the lives and safety of other road users. In the judg ement of this court, an offender who has a good driving record should normally be fined and disqualified from holding or obtaining a driving licence for the minimum statutory period or a period not greatly exceeding it, unless of course there are special r easons for not disqualifying. If his driving record is indifferent the period of disqualification should be longer, say two or four years, and if it is bad, he should be put off the road for a long time.

For those who have caused a fatal accident through a selfish disregard for the safety of other road users or their passengers or who have driven recklessly, a custodial sentence with a long period of disqualification may be appropriate, and if this kind of driving is coupled with a bad record the period o f disqualification should be such as will relieve the public of a potential danger for a very long time indeed”.

The above legal principles of law were cited with approval by our Court of Appeal in the judgement of Porter JA (as he then was) in ORWERYO MISIANIV.R. 1979 KLR 285 where it held that, although the maximum penalty for causing death by dangerous driving is five years (amended to ten years) a custodial sentence does not necessarily serve the interests of justice as well as the interests of the public, but there are cases where a custodial sentence is merited, for example, when there is a compelling feature such as an element of intoxication or recklessness.

This appellant in my view has been shown to have been driving at high speed before the accident and to have started to overtake another vehicle when it was prohibited by the road traffic rules to do so. After he crashed the deceased, he failed to stop. The appellant no doubt drove in a manner, which showed a selfish disregard for the safety of other road users, and this amounted to a high degree of recklessness. This was a proper case for custodial sentence and called for a long time of disqualification. I will, however, direct that the period of disqualification shall run from the date the sentence of 21/2 years is served i.e. from the date of the appellant’s release from prison custody.

This appeal against sentence is accordingly dismissed.

It is so ordered.

Dated at Nairobi this 4th July, 2001.

A.G.A. ETYANG’

JUDGE