Msumi, J.: On his plea of guilty, respondent was convicted of causing Death by Dangerous Driving Contrary to Sections 40(1) and 63(2)(a) of the Road Traffic Act. He was sentenced to a fine of shs. 6000/= or three months jail. Dissatisfied with the H sentence the Director of Public Prosecutions is presently appealing against it. And in apparent ignorance of the existence of the appeal by the Director of Public Prosecutions, respondent filed appeal against his conviction. He is arguing that his pleas was not unequivocal. Since the appeal of the Director of Public Prosecutions cannot be I deliberated upon without somehow the court considering whether or not respondent's pleas was unequivocal, notwithstanding its
irregularity, the appeal by respondent was also allowed to be argued upon. A
In the petition of appeal by the Director of Public Procesutions it is argued that the sentence of a fine of shs. 6000/= or three months jail in default is manifestly inadequate and it is also illegal since the law provides for a mandatory minimum sentence of three B years for the offence. As for the belated appeal of the respondent the Republic is submitting that respondent's plea was unequivocal hence the conviction is legally sustainable. But without prejudice to this argument the Republic is praying for order of retrial in case the court finds that respondent's reply to the charge did not amount to C admitting the guilt, but also the facts narrated by the public prosecutor to the court are inconsistent with the alleged offence. To be specific, the learned counsel pointed out the fact that whereas the charge sheet alleges that respondent drove on the extreme left of the road and thereby knocked down deceased, the sketch map of the scene of the D accident produced by the prosecution in support of the facts of the case shows that in fact deceased was knocked down in the middle of the road.
The argument that there is statutory minimum sentence of two years imprisonment for the offence of causing Death is based on the wording of Section 63(2)(a) of the Road E Traffic Act which, as far as material, says:
63 - (2): Any person who is convicted of -
F (a) an offence under Section 40 shall be liable to a term of imprisonment of not less than two years but not exceeding five years and the court may in addition thereto impose a fine not exceeding one hundred thousand shillings ..... (emphasis supplied). G
With respect the correct interpretation of this provision does not support the Republic's view that the Section has created a mandatory minimum sentence of two years imprisonment for the offence committed under Section 40. It is common view that the phrase "shall be liable" when statutory used in the prescription of penalties does not H have compulsory effect. In simple language, what it actually means is that besides other forms of punishment authorised by law, court may impose the prescribed sentence which is usually the maximum. The erroneous view held by the Republic appears to I have been caused by the words "not less than two years" appearing
in the Section. It is true that these words set a mandatory minimum sentence of two A years imprisonment. However, this sentence becomes mandatory only after the court has opted for a custodial sentence as opposed to other types of punishments. If after convicting the accused the court decides to send him to jail, then the term of such B imprisonment should not be less than two years and not exceeding five years. It is not true that in every case where accused has been convicted of causing Death by Dangerous Driving, he must be sentenced to a minimum of two years imprisonment. It is quite lawful for the court to impose a sentence other than imprisonment as it did in this case. C
The second limb of the argument against the sentence is equally not tenable. The learned trial magistrate fully rationalized the sentence he has imposed. Quite correctly the magistrate took into account; as mitigating factors, the fact that respondent was a first offender, he promptly pleaded guilty and the heavy family commitments he has. D Taking those factors in consideration the sentence of shs. 6000/= or three months jail cannot be impugned for being manifestly inadequate.
As regards respondent's plea, it is evident that it is not unequivocal. His statement in E mitigation clearly shows that he did not grasp the nature of the offence at the time when he pleaded guilty to it. It does not appear that all the ingredients of the offence were fully explained to the respondent before his plea was taken. Whenever there is indication that accused intends to plead guilty, court should take effort to carefully explain to him F each and every ingredient of the offence and a plea of guilty should only be entered if his reply to such explanation clearly shows that he has understood the nature of the offence and he is without qualification, admitting it. Except when it is absolutely satisfied that accused reply is nothing but a clear admission of the guilt, court should be warry of G entering a plea of guilty where the nature of the offence is such that may likely lead the accused to think that his alleged offensive conduct is the actus reus of the offence without the other necessary ingredients such as culpable knowledge. Thus in the present case it is evident that what the respondent admitted was the fact that he caused the H death of the deceased. From what he said in mitigation it is clear that he is refuting the allegation that he caused the death of the deceased because his manner of driving at the material time was either dangerous or reckless. To the contrary he is contending that there was no way he could avoid knocking down the deceased. This contention I appears to be supported by the sketch map of the scene
of the accident which shows that deceased was knocked in the middle of the road A and not on the extreme left as alleged in the particulars of the offence. It appears what happened in this case is similar to what transpired in the Republic v Himo [1971] E.A. 351 where George, C.J., as he then was, said:
B In the first place one ought to examine with much care a plea of guilty to a charge of Causing Death by Dangerous Driving. The accused may intend to do no more than to admit that he was responsible for the accident which caused the death.
This observation underscores the earlier warning that as a general principle, court C should be chary of accepting plea of guilty in this type of cases.
I agree with the learned State Attorney that in the event the plea is declared equivocal, an order should be made for retrial. I think it is clear for the interest of justice that D prosecution is given opportunity to prove their allegation against the respondent. In conclusion this appeal is dismissed. However, the conviction is quashed because the plea of the respondent was not unequivocal. The case is referred to the District Court of Tanga for retrial. E
Appeal dismissed.
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