Mahela v. R Crim. App. 156-M-71; 17/12/71; Makame, J.

Mahela v. R Crim. App. 156-M-71; 17/12/71; Makame, J.

The appellant pleaded guilty on two counts: (1) Driving without insurance, c/ss 4(1)(2) and 19 of the Motor Vehicle Insurance Ord., Cap. 169; and (2) driving a motor vehicle with defective springs, c/ss 30(1) (k) and 69, Traffic Ord., Cap. 168. He appealed against the order for disqualification which was made consequent on his conviction on the first count. It was established that he was employed as a driver on a vehicle owned by two persons. The insurance policy had in fact expired. When he was asked to advance special reasons, if he had any, against disqualification, the appellant said “I ask for leniency because it is my hoe for earning a living. I have nothing else except that I have children at home.”

            Held: (1)”Quite properly, the magistrate held that these were not special reasons but, in my view, as the charge-sheet disclosed that the appellant was an employed driver and because the appellant was unrepresented, the magistrate could reasonably have ‘participated’ and asked the appellant if he knew whether the vehicle was not insured. The chances are that the appellant would have said, as he asserts now on appeal, and convincingly in my view, that he did not know then that the policy had expired. This would have been a “special reason” as was held in Rex vs. Mtumwa Ahmed 1 T.L.R.99. Singleton, J. said in Blows vs. Chapman [1947] 2 All E.R., p. 576, quoted with approval by Saidi C.J. in R. vs. Richard Mbilinyi, Dar es Salaam Criminal Revision No. 68/71: “It is not, I think, the duty of a workman to ask his employer each day ‘Is this vehicle insured”’ I respectfully agree. Accordingly I set aside the order for disqualification and order that the appellant’s driving licence should be restored to him.” (2)”On the same count the present appellant was sentenced to pay a fine of Shs. 100/-. Although the appellant did not appeal against the fine, it is just and opportune to consider the matter. In Ahmed’s case, Mahon, J. reduced the fine from Shs. 100/- to one of Shs. 20/-. The substantial reduction must be indicative of the learned Judge’s view that the accused in that case was not to blame, and indeed he remarked. ‘The charge contained in the second count could very properly have been disposed of, I think, under the provisions of section 38 of the Penal Code.’ For

Myself, accepting the view of Singleton, J., as I do, I do not see why the appellant in this case should pay a fine at all, as he is not to blame. Accordingly, I order that the fine on this count, which has been paid, should be refunded to the appellant and I substitute for it, an absolute discharge.”