R. v. Amos John, Crim. Rev. 12-A-69, 3/3/69, Platt J.

R. v. Amos John, Crim. Rev. 12-A-69, 3/3/69, Platt J.

The accused pleaded guilty to the charge of failing to comply with his time-table contrary to sections 23(3) and 26(1) of the Penal Code. In a reasoned argument before accepting the plea, the learned Magistrate set out his view why he thought the accused was guilty. He then fined the accused Shs. 50/- or seven days’ imprisonment in default of payment of the fine. The facts were that the accused, being the driver and person in charge of a public service vehicle, drove his bus away from Mashati at 11.15 a.m. on the 20^th July, 1968, instead of 12.00 noon as stipulated in his time-table. He was stopped and later charged. It appears from the accused’s admission that he had no passengers in the bus, since he was going to the hospital for treatment.

            Held: “It was conceded by the learned Magistrate that the accused was not the holder of the licence of the bus; but he argued that he was also guilty by virtue of section 22(a) of the Penal Code. That section provides as follows: “Where an offence is committed, each of the following person is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say (a) every person who actually does the act or makes an omission which constitutes the offence.” I need not, I think, consider in detail the various steps in the learned Magistrate’s argument employing this section, but perhaps I should observe, that the customs’ case to which h referred, raises a type of joint responsibility which was not involved in the problem in the instant case. Suffice it to say that the section seems to me to rule out the liability of the driver in this case, since the act or omission which constitutes the offence is only that of the licence holder. It has been laid down on several occasions that section 26(1) of Cap. 373 provides that only the licence holder can be proceeded against and not the driver nor the conductor of the vehicle. (See Hamed Abdallah v. R. (1964) E. A. pp. 270 and 272, and J.W. Nyamahande v. R. Cr. App. No. 550/68). With respect, I am unable to see any reason for construing section 26(1) of Cap. 373 in any other way. It follows therefore that the bus driver in this case should not have been charged and his plea not accepted. I cannot forbear to point out however, that it seems unnecessary for this argument to have arisen, for it was held in Hamed Abdallah that the licence holder was under an absolute liability to see that the special conditions of his licence, such as the conditions imposed in the time-table, were complied with. Thus whether he knew of the breach or not, he was liable. In the instance case, all that the prosecution had to do was to charge the licence holder on account of the driver’s breach of the conditions.” Appeal allowed.