Clemence Mziray v. R., E.A.C.A. Crim. App. 85-DSM-72, 24/10/72.

Clemence Mziray v. R., E.A.C.A. Crim. App. 85-DSM-72, 24/10/72.

Held: (1) While it is not open to the Court of Appeal for East Africa to consider, on second appeal, the severity or sentence, it must consider the lawfulness of a sentence and will interfere with sentences resulting directly from misdirection’s of law.

(2) Sentence of 18 months’ imprisonment for causing death by dangerous driving c/s 44A (1) and 70. Traffic Ordinance, Cap. 168 cannot be supported in law where the accused struck down and killed a person walking by the side of the road, while driving at 40M.P.H. on the correct side.

            LUTTA, J. A. – This is an appeal from a revisional order under section 327 of the Criminal Procedure Code and also from a decision of the High Court refusing leave to appeal out of time. The appellant was, on the 13^th August, 1971, convicted of the offence of causing death by dangerous driving, contrary to sections 44A (1) and 70 of the Traffic Ordinance (Cap. 168) and was sentenced to a fine of Shs. 2,000 or ten months’ imprisonment in default. He paid the fine. The High Court caused a notice of enhancement of sentence to be served on him as it considered the sentence to be inadequate. The matter came before the High Court on the 8^th July, 1972; it set aside the sentence of a fine of Shs. 2,000 and substituted therefore a sentence of 18 months’ imprisonment. The appellant applied to the High Court for leave to file an appeal out of time against the decision of the Resident Magistrate and on 1^st August, 1972, his application was dismissed. He has now appealed against the enhancement of sentence and refusal of the High Court to grant leave to appeal out of time. [The court outlined the submissions of counsel and continued].

            Under section 8(6) (a) of the Appellate Jurisdiction Act (cap. 451) this Court has power to hear an appeal by either party to proceedings under Part X of the Criminal Procedure code: “on a matter of law (not including severity of sentence) but not on a matter of fact.” This is an appeal against enhancement of sentence and the principles on which this Court will act in such an appeal were set out in the case of Desai v. R. (1971) E.A. 416; at p. 419 this Court said: “On consideration we think that while it is not open to us to consider, on second appeal, whether a sentence is unduly severe or unduly lenient, it must be open to us to consider whether a sentence is lawful, and to interfere if it is not. By necessary extension, we think we have jurisdiction to entertain a submission that a trial court, in considering the sentence to be passed, has misdirected itself in law and, if we uphold such a submission and consider that the sentence passed resulted directly form the misdirection, to interfere with that sentence, so as to substitute for it the sentence which the trial court would have imposed had it directed itself correctly.”

            In this case the learned judge, when enhancing the sentence said: “In the present case the accused knocked down an old man who was walking on the edge of the road and in the same direction. Accused’s explanation that he was dazzled by the full lights of an oncoming car was disproved by evidence and rejected by the trial magistrate and with good reasons. Windscreen of the accused’s car was broken but he did not stop after the accident, but was chased by another man in a bus. I have carefully considered all the aspects of the case and bearing in mind the circumstances surrounding the incident in question, I feel a sentence of a fine of Shs. 2,000 or ten months’ imprisonment is far too lenient and not compatible with the gravity of the offence.” The evidence which the trial magistrate accepted, was that the appellant was traveling at a speed of 40 m.p.h. on the Nairobi/Arusha road, well on his left side, with dim lights on and that he did not know whether he had knocked down a human being – that when his windscreen broke he thought he had been hit by a stone. However, the trial magistrate said that a speed of 40 m.p.h. on a tarmac road is “high enough and is enough to cause a death of a person.” That was not the question. A much lower speed may cause death. The question which the trial magistrate had to consider was whether the speed at which the appellant was driving was in the circumstances dangerous. Both the trial magistrate and the learned judge seem to have lost sight of the act that in the particulars of the charge it was alleged that the appellant was driving at a speed which was dangerous to the public, not that he was driving in a manner dangerous to the public, which is the alternative under the section a speed. A speed of 40 m.p.h. on a main road is not in itself dangerous unless there are circumstances that make it so, and no evidence was called to establish those circumstances. We are not concerned with the question whether the appellant was rightly convicted, because he did not choose to appeal against conviction, what does concern us is tat the learned judge has enhanced the sentence because of the gravity of the offence and yet he does not seem to have related the evidence to the charge. The only reasons he gives are, first, that the trial magistrate disbelieved the appellant and, secondly, that the appellant did not stop immediately after the accident. Neither of these factors was relevant to the question before him. We think the learned judge gravely misdirected himself and that if he had not done so, he would not have enhanced the sentence. In these circumstances this Court not only has jurisdiction in this matter but is also entitled to interfere with the sentence. We accordingly allow the appeal, set aside the sentence of 18(eighteen) months’ imprisonment and restore the sentence originally imposed by the trial magistrate.