Saudi s/o Sefu v. R., Crim. App. 185-M-68, 27/6/68, Seaton J.

Saudi s/o Sefu v. R., Crim. App. 185-M-68, 27/6/68, Seaton J.

Accused was charged on four counts under the Traffic Ordinance, two of which were (i) causing death by reckless or dangerous driving [ s. 44 (A)(1) of Act 41 of 1964 of the Laws] and (ii) using a motor vehicle on the road with defective tyres [ss. 30(1)(i) and 69 of Cap. 168]. Accused was driving a Land-Rover to Nzega carrying twelve cases of empty Fanta bottles and about fifteen passengers. On the way a rear left hand tyre burst and this was replaced by another which apparently quite worn. The journey was resumed and the passengers requested the accused to drive slowly because of their overcrowded condition; also, the turn-boy warned accused that the replaced tyre had a protruding piece of metal. The accused however neither reduced his speed nor mended the replaced tyre. On the way, the replaced tyre also burst on a slope of a hill, and the vehicle over-turned. Three passengers were killed and the rest were injured. A question arose whether the charge was defective, since it joined in one count the charge of causing the death of three separate persons and the charge of causing the injuries of the rest.

            Held: (1) The joinder of the three deaths and injuries to the other persons was not prejudicial to accused in the circumstances of the case. Accused was full aware of the substance of the case he had to meet and the defective charge did not occasion failure of justice and was curable under section 346 of the Cr. P. C. (2) The duty of care owed by motor-drivers to users of the highway is not to drive recklessly, not to drive at a dangerous speed and not to drive a vehicle in a dangerous condition. This duty of care extends both to passengers and other members of the public independently using the road. Appeal dismissed.