R. v. E.D.U. Sawe, Crim. App. 838-M-68 26/3/69, Mustaa J.

 

R. v. E.D.U. Sawe, Crim. App. 838-M-68 26/3/69, Mustaa J.

This is an appeal by way of case stated from the acquittal of the respondent by the learned resident magistrate. The respondent was charged with causing the death of another by dangerous driving contrary to section 44A (1) (a) of the Traffic Ordinance, Cap. 168, as amended by the Traffic Ordinance (Amendment) Act No. 41 of 1964. The following facts were found. While the respondent was driving along School Street his motor vehicle knocked down three pedestrians, including one Safi d/o Mgawe who later died as a result of the injuries sustained. The said Safi d/o Mgawe and the other pedestrians were walking on the correct left side of School Street at the time of the accident, and the motor vehicle went off the road after it had collided with the pedestrians. The Street is overgrown with huge mango trees which make it difficult for a driver to see pedestrians walking on it. The trial magistrate found that there were three ways in which the accident could have happened. First that the respondent deliberately ran Safi d/o Mgawe down. This was rejected outright.  Secondly, the respondent might have seen the pedestrians in good time but believing that they were aware of his approach hoped that they would give way for him to pass. They did not and the accident took place. Thirdly, the respondent, because for the obstruction due to the huge mango trees, might not have seen the pedestrians until it was too late for him to do anything to avoid the accident. The trial magistrate found that: “The evidence before us does not show that things could not have happened in accordance with the third theory. There is thus a doubt about the guilt of the accused for the offence charged.” He also says: “If what happened is sin accordance with the third theory, the blame for this accident would lie on the Township Authorities for keeping a road in town closely overgrown with these huge mango trees which make it difficulty for a driver to know whether there are pedestrians walking along the street.” He therefore acquitted the respondent.

Held: “I will of course accept that the accident occurred in terms of theory No. 3 as propounded by the learned trial magistrate ….. In my view, accepting all the facts as found by the trial magistrate, it is clear the respondent was guilty of the offence as charged. In the circumstances described respondent obviously caused the death of deceased by driving in a dangerous manner. In considering the “circumstances” in a charge of causing death by dangerous driving the test to be applied is purely an objective one. If the driving was in fact dangerous in all the circumstances the driver is liable…… [Citing; Graham Lesile John Ball and John James Loughlin [1966]50 Cr. App. Reports 266 at 270].

Here it is quite clear that the respondent was driving along a road where there were big overhanging trees which make it difficult for a driver to see properly. In the circumstances, it was obviously his duty to drive in such a manner so as not to knock down or run over anybody walking on the correct side of the road. By applying such an objective test it is clear the respondent was driving in a dangerous manner, when he knocked down deceased causing her death. I also refer to Hassan Mohamed Omari v. R. 1959 E. A. (C.A. ) 939 at page 945 …….. In that case, the Court of Appeal would also appear to hold that the test to be applied is an objective one. In my view, therefore, on the facts as found by the trial magistrate he should have convicted the respondent. I, therefore, allow the appeal and send it back to the trial court with a direction to convict.”