Harji Abemada v. R. Crim. App. 177-M-71; 13/8/71; El-Kindy, J.

Harji Abemada v. R. Crim. App. 177-M-71; 13/8/71; El-Kindy, J.

            The appellant was convicted of causing death by reckless driving c/s 44A (1) (a) of the Traffic Ordinance Cap. 168 as amended by section 15 of the Traffic Ordinance (Amendment) act 1964. He was sentenced to 16 months imprisonment and disqualified from holding a driving licence for 24 months. The appellant was the driver of a bus which collided with another vehicle and then struck a wall and overturned. The body of the deceased.

Was found pinned under the bus. An examination of the bus by P. W. 2 showed that at the time of the accident the front offside spring bushes were worn out, the handbrake was not functioning and the front propeller shaft universal bolts were loose. There was no reliable evidence of the state of the footbrake before the accident. Three prosecution witnesses gave evidence that at the time of the accident the bus was being driven at “a high speed”. The identity of the deceased was never established.

            Held: (1) “I am satisfied that (failure to identify the deceased) in not a fatal omission as there was no doubt that it was the body of a human being.” (2)”The learned magistrate held that in driving as he did the appellant was reckless. In coming to this conclusion he held that the appellant drove at a high speed there is no doubt that the learned resident magistrate relied on the evidence of P. w. 3 and P. W. 4 ……..  who alleged that the appellant drove at a “high speed”, but none of them could estimate the speed of the bus. P. W. 2 said that the overturning was due to driving at a high speed. As it was held in Mwinjuma v. R. 1971 H. C. D. 61 opinion evidence as given by the prosecution witness cannot be relied upon to establishes that the appellant’s speed was “high “before or during the incident. The cases of W. Milburn v. R. 2T. L. R. (R) p. 27 and G. M. Daya v. R. (1964) E. A. 529 are relevant on the issue of opinion evidence as to speed.” (3) “The gazette vehicle inspector could not tell whether the brakes were functioning or not before the incident. In the absence of reliable evidence on the state of the brakes before the incident, it cannot be said that the appellant’s explanation (that the accident wad due to the failure of his brakes) was not reasonably probable.” (4) The appeal was allowed.