Rex v Kifunja (Criminal Appeal No. 530 of 1948) [1948] EACA 86 (1 January 1948)

### APPELLATE CRIMINAL

#### Before SIR BARCLAY NIHILL, C. J.

#### <sup>1</sup> REX. Respondent (Original Prosecutor)

# KIFUNJA s/o KINUTHIA, Appellant (Original Accused)

## Criminal Appeal No. 530 of 1948

Criminal law—Permitting a motor vehicle to be used on a road with insufficient brakes, Traffic Ordinance, 1928, section 13 (a)—Four previous convictions

for like offences-Order suspending Certificate of Competency under section 45—Legality.

Held (6-10-48).—That section 45 of the Traffic Ordinance, which empowers a Court to suspend a Certificate of Competency applies only to the actual driver of a motor vehicle and not to a person who permits the use of his motor vehicle by another. Order suspending Certificate of Competency rescinded.

Madan for the Appellant.

Modi for the Crown.

JUDGMENT.—The appellant was convicted under section 13 (a) of the Traffic Ordinance, 1928, of permitting a motor vehicle owned by him to be used on the road with inefficient brakes. The appellant admitted the offence and was fined Sh. 200. The Magistrate also made an order suspending his Certificate of Competency for 12 months. Against this sentence and order the appellant now appeals.

The appellant admitted four previous convictions for like offences and taking this into account the fine imposed was by no means excessive. His appeal against sentence therefore fails.

As regards the suspension of the appellant's Certificate of Competency the Magistrate exceeded his powers because the provisions of section 45 of the Ordinance which is the section which empowers a Court to suspend a certificate apply only to the driver of a motor vehicle and not to a person who permits his motor vehicle to be driven by another in a condition which constitutes an offence against the Ordinance. Whether this was the intention of the Legislature or not I do not know but it follows inevitably from the wording used. It is interesting to note in this connexion that the wording of the corresponding section in the Road Traffic Act, 1930, differs. In that section the words used are not "when any driver of a motor vehicle" but "any Court before which a person is convicted of any criminal offence in connexion with the driving of a motor vehicle". This appeal is allowed therefore to the extent that the order made by the Magistrate suspending the appellant's Certificate of Competency is hereby rescinded.

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