Mwinyijuma v. R. Crim. App. 279-M-70; 20/11/70; El Kindy Ag. J.

 

Mwinyijuma v. R. Crim. App. 279-M-70; 20/11/70; El Kindy Ag. J.

The appellant was charged with and convicted of causing death by dangerous driving c/s 214 (1) (a) of the Traffic Ordinance, Cap. 168 as amended by the 1964 act. He was sentenced to three years in prison. On the material date, the appellant, who was a Medical Officer, was driving a motor vehicle rushing to attend an

expectant mother. As he passed through a trading centre, he overtook another vehicle and in the process knocked down the deceased, who was staggering and appeared in from of him. There was conflicting testimony as regards the speed at which the appellant was driving. Two witnesses who were in the motor vehicle which was overtaken claimed that appellant was driving at 30 m. p. h. and 10-15 m. p. h. respectively whereas appellant claimed that he was driving at 10 m. p. h. The lower court found that appellant was driving at a speed more that 30 m. p. h. since if it was at 10 m. p. h. as appellant claimed, he would have stopped. It was argued on behalf of the appellant that he evidence of the two witnesses in connection with speed should not have been accepted because it was not established in evidence and also that it was not established in evidence and also that it was opinion evidence [Citing W. Milburn v. Regina 2 T. L. R. (R) 27; and G. M. Paya v. R. (1964) E. A. 529].

            Held: (1) “Both these witnesses were in the same vehicle and each person, in his opinion, gave a different assessment of appellant’s speed at the time when he overtook them immediately before the accident. Even if the learned magistrate did not misdirect himself on the evidence, opinion evidence cannot be relied on to establish that the appellant in this case was driving at a speed of over 30 m. p. h.” (2) There was sufficient evidence to show that the appellant was driving dangerously, taking into account the fact that: he did not made an effort to brake; he did not take proper care when he saw the deceased staggering as if drunk; knowing that he was driving within the vicinity of a liquor market, he did not exercise the care of a reasonable person, the test being an objective one (see R. v. SAWE [1968] H. C. D. 180) (3) Since the deceased appeared to have contributed to his own death and since the appellant resorted to dangerous driving in his sincere effort to attend a patient, the proper sentence ought to have been a fine. Sentence of 3 years was manifestly excessive. Sentence reduced so as to result in immediate release. (4) Appeal against conviction dismissed.