DIRECTOR OF PUBLIC PROSECUTIONS v ABDI NYENYE 1984 TLR 37 (HC)

DIRECTOR OF PUBLIC PROSECUTIONS v ABDI NYENYE 1984 TLR 37 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

October 10, 1985

B CRIMINAL APPEAL 4 of 1984

Flynote

Criminal Law - Careless driving - Driver fails to exercise control over a motor vehicle

thereby swerving left and right and consequently sustaining frontal damage -

Whether he is guilty of careless driving c/ss. 63(2)(d) C and 27 (1)(b) of the Road

Traffic Act, 1973.

-Headnote

The respondent was a driver with Dodoma Wine Company. It was alleged that one

day he took his employer's vehicle which suddenly swerved off the road, smashed

into a thicket and sustained D substantial frontal damage. The respondent was

charged with two counts, taking a motor vehicle without the owner's consent and

with careless driving. The District Court acquitted him on both counts. The Director

of Public Prosecutions appealed against the acquittal on the second count.

E Held: (i) The vehicle could not just swerve to the right and left, there must have

been a reason for that development otherwise it amounted to careless driving;

E (ii) there was no evidence to show that the steering system suddenly broke or

gave way.

Case Information

Appeal allowed.

Case referred to:

G 1. Patel v R [1968] E.A. 97.

Senguji for the appellant.

[zJDz]Judgment

H Lugakingira, J.: This was an appeal by the Director of Public Prosecutions from

the decision of the District Court of Dodoma in a traffic charge.

The respondent Abdi Nyenye, was a driver with the Dodoma Wine Company in

Dodoma. On 18.6.83 I he was driving his employer's motor vehicle Reg. No. SU

13037 when, about ten miles from town, the vehicle suddenly swerved off the road,

smashed into a thicket and sustained substantial frontal damage. He was charged

under the

1984 TLR p38

LUGAKINGIRA J

Road Traffic Act, 1973 with taking a motor vehicle without the owner's consent c/s.

62(1) and with A careless driving c/ss.50, 63(2) (d) and 27(1)(b). He was acquitted on

both counts. This appeal was against the acquittal on the second count.

To appreciate the findings of the trial court magistrate and the arguments canvassed

on behalf of the DPP before me, it is desirable to set out the particulars of the charge

in the second count. So far as is B relevant here the particulars alleged that the

respondent

did drive the said motor vehicle on the said road carelessly or without

reasonable consideration for other persons using the road, to wit, he failed to control

the said motor vehicle on the said road as the result he C drove extremely to the left

side and overturned thereby causing damage to the said motor vehicle.

In acquitting the respondent the learned trial magistrate held that neither the charge

nor the D evidence disclosed careless driving. He was prepared to believe the

respondent that the vehicle went off the road because the steering system suddenly

broke. Mr. Senguji who appeared for the DPP argued that the trial magistrate erred in

finding as he did. He submitted that the charge E disclosed the offences as it alleged

specifically that the respondent failed to control the vehicle. He also referred to the

evidence on speed, which was adjudged high, and to the further evidence that before

the accident the vehicle had one defect, namely, a worn out rear tyre. The respondent

reiterated before me that the steering suddenly broke. He maintained that he was

otherwise driving F in a normal and reasonable manner.

After studying the charge and weighting the evidence, I think there is force in Mr.

Senguji's argument. What the charge was expected to disclose is an act or omission

from which careless driving could be inferred. The trial magistrate was apparently

aware of this for he said: G

It is essential that the charge sheet states the act of omission complained of,

that is, what constitutes the careless driving manner ... it is wrong if I agree that

because an accident has occurred the driver must have H been driving carelessly.

This is all correct, and the question is whether in this case the charge did not allege an

act or omission which was consistent with careless driving. I find, with respect, that

the charge was not I wanting as found by the learned magistrate. It alleged that the

respondent "failed

1984 TLR p39

LUGAKINGIRA J

A to control the said motor vehicle." In other words, to put it in the simplest terms,

the respondent let the vehicle drive itself, as it were. That was an omission; and when

a person drives in such a manner as to permit the vehicle freely to make dangerous

swerves, I apprehend that that is a piece of B careless driving. I am therefore unable

to agree with the trial magistrate that the charge did not disclose the offence.

What is more, I think there was evidence from which careless driving could be

inferred. I do not propose to say anything about alleged speeding for that was an

opinion which the evidence does C not clearly demonstrate. However, there was a

sketch plan, Exhibit C, which shows that the vehicle suddenly swerved to the right

and then to the left to end up in a thicket. The sketch plan and what it shows were

not disputed by the respondent. But vehicles do not decide suddenly to swerve this

way or that. There must be some reason for that sort of behaviour, and in the absence

of a plausible D explanation the only reasonable inference is that the driver was

driving carelessly. This is not the same thing as judging issues from the mere fact of

the accident. We are here presented with a stated omission, namely, failure to

exercise control over the vehicle, and the explanation which would be E expected is

whether the behaviour of the vehicle was for reasons beyond the driver's control.

In these remarks I am fortified by the observations of the Court of Appeal in Patel v

R. [1968] E.A. 97. In that case the appellant was charged with driving in a manner

dangerous to the public c/s 47(1) F of the Kenya Traffic Act. He had been driving in

a cautious and orderly manner on a wet road when, suddenly, his car skidded to the

right and collided with a car which was being driven in the opposite direction. At the

close of the prosecution case the trial magistrate ruled that the appellant had no case

to answer. The State appealed to the High Court which reversed that decision and the

G appellant appealed to the Court of Appeal. The Court upheld the decision of the

High Court and said, inter alia;

Now before the accident, as we have already said, the road was wet and the car

was being driven in a H normal way at a reasonable speed; and then it suddenly

skidded or swerved across the road in front of an oncoming vehicle. It is well-known

that cars, even on a wet road, do not skid or swerve without reason. It is also wellknown

that for no reason at all cars do not turn into an oncoming vehicle. Unless an

explanation is I given which shows that for all practical purposes the driver of the

car was not, for reasons beyond his control,

1984 TLR p40

LUGAKINGIRA J

in control of it, turning immediately infront of an oncoming vehicle is, on the

face of it, a patently A dangerous manoeuvre.

That case was concerned with dangerous driving but the principles elucidated therein

are not inapplicable to careless driving.

As I have said, the respondent's vehicle could not just swerve to the right and left.

There must have B been a reason for that development, otherwise it amounted to

careless driving. The prosecution alleged that the vehicle swerved because the

respondent was exercising no control over it. I think, with respect, that case had

been made out and the onus was cast on the respondent to account for C the swerve

by an explanation which could show that it all happened for reasons beyond his

control. I am thus of the view, unlike the trial magistrate, that the evidence equally

disclosed the offence.

The respondent's explanation was that the steering system suddenly broke or gave

way. If that D could be established it could afford a good defence to the charge. It

would show that the respondent lost control of the vehicle for reasons beyond his

control. But was the explanation true? There was evidence from Inspector James

Kombo that the only defect before the accident was a E worn out rear tyre. He also

tendered his inspection report, Exhibit B, which testified to the same state. The report

does not speak of a broken steering system either before or after the accident, but in

Item 10 thereof it speaks only of steering arms being bent after the accident. The

respondent never challenged that evidence except as to whether Inspector Kombo

went to the scene of F accident, which was irrelevant. In stating that the steering

might have broken the trial magistrate never made reference to the evidence of

Inspector Kombo and it is doubtful that he would have found as he did if he had done

so. There was therefore no explanation for the swerve the vehicle G made and the

only inference is that the respondent was not exercising proper control, which

amounted to careless driving.

It follows that the appeal succeeds and I allow it accordingly. I set aside the

respondent's acquittal on the second count and substitute a conviction. H

The respondent is to be summoned before the trial court for sentencing and

consequential orders in accordance with the law.

Appeal allowed. I

1984 TLR p41

A