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
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 Brelevant 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
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 well-known 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,
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
A
