REPUBLIC OF KENYA

IN THE MAGISTRATES COURT AT RUNYENJES

TRAFFIC CASE NO. OF 2015

REPUBLIC

VERSUS
KIRIMI MBAKA....ACCUSED

ACCUSEDS WRITTEN SUBMISSIONS ON NO CASE TO ANSWER

May it please the Court,

INTRODUCTION

The Accused herein is charged with careless driving motor vehicle registration number
KAZ 930C (hereinafter the motor vehicle) contrary to section 49 (1) of the Traffic
Act, and failing to report an accident contrary to section 73 (3) of the Traffic Act. It is
submitted that this Honourable court has the following issues to determine as set out
hereunder.

ISSUES FOR DETERMINATION

In his submissions the Accused highlights the following as the main issue, which this
Honourable Court ought to address and resolve. It is further submitted that in
addressing this issue, other cross-cutting issues will be apparent; however, the accused
seeks to address them for clarity.

1. Whether the accused rode the motor vehicle carelessly and knocked down the
complainant on the 4th day of July 2015 as alleged.

Separate from the main issue, this Honourable Court ought to address the issue
proposed below:

2. Whether an accident happened involving the motor vehicle.

1. Whether the accused rode the motor vehicle carelessly and knocked
down the complainant on the 4th day of July 2015.

The Accused submits that section 49 (1) of the Traffic Act provides thus:

49. (1) Any person who drives a motor vehicle on a road without due
care and attention or without reasonable consideration or other persons
using the road shall be guilty of an offence

It is submitted that the burden of proof is always on the prosecution to prove the case
against an accused person beyond any reasonable doubt. The court in Patrick

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Mureithi Gatimu vs. Republic [2007] eKLR cited the decision of the Court of
Appeal in Ajwang vs. Republic [1983] KLR 337, where the Court of Appeal stated
as follows:

The burden of proving the ingredients of the offence are entirely on the
prosecution and the accused cannot be called to prove his innocence.

The paramount question for determination before your Honour is what constitutes an
offence under the section 49 (1) of the Traffic Act?

In Christopher Nyaga Kiragu vs. Republic [2014] eKLR the court stated thus:

The act of injuring one passenger as result of the careless driving

constitutes an offence.

From the above, the accused therefore humbly submits that the prosecution has to
prove that injury occurred from an alleged act of careless driving by the accused. In
the instant case, PW1 testified that he had an impact, saw the alleged victim lying on
the road, the victim had blood flowing from his forehead and that he was unconscious.
The victims mother further testified that her son was bleeding and that his clothing
was blood stained. The investigating officer also testified to this effect; however, the
testimony from the clinical officer who examined the alleged victim testified that the
childs clothing only appeared dirty. He further testified that there was no appearance
of blood, on the purported victims clothing or anywhere at all, from his assessment of
the alleged victim of the accident and further that only a minor scratch was visible on
the childs forehead.

From the foregoing testimonies, it is noted that they wholly contradict the clinical
officers assessment of purported injuries on the alleged victim. The irresistible
conclusion that this honourable court ought to draw is that doubt exists as to whether
injury on the purported victim is consisted with one obtained from impact of being hit
by a motor vehicle exists.

The Accused refers to the case of SGT Catherine Elizabeth Russell vs. Republic
[2016] eKLR, where Hon. Kasango, J. stated thus, (at paragraph 12):

It is clear from section 49 (1) of the Traffic Act that the offence is directed
at the driver of a vehicle and not the vehicle...

The principle to follow from the above holding is that the offence under section 49 (1)
of the Traffic Act is directed at the driver of a vehicle. From the testimonies by the
prosecution witnesses, the accused submits that that there is no evidence to link the
Accused with the alleged accident. No prosecution witness had the opportunity to
establish that it was the Accused who had caused the alleged accident. None saw the
accused driving the vehicle, which would place him at the purported scene. The
question that subsequently begs an answer is, does doubt exist as to who the driver of
the motor vehicle was at the time if the purported accident? The Accused humbly

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submits that the answer is resoundingly in the affirmative, and urges this Honourable
court to find as such.

2. Whether an accident happened involving the motor vehicle.

Section 73 (3) of the Traffic Act provides that a driver who has been involved in
an accident while driving a motor vehicle on a public road should report the accident,
presumably to the police, within twenty four hours of the occurrence thereof.

In addressing this issue, this Honourable court ought to satisfy itself that the motor
vehicle in issue was damaged guided by the report of the motor vehicle examiner.

The motor vehicle examiner testified that what was evident was a scratch on the left
side of the motor vehicle. This assertion by the motor vehicle examiner contradicts the
testimony by one of the prosecution witness that the alleged victim was hit from the
right side of the motor vehicle.

The motor vehicle examiner further testified that the scratch on the motor vehicle was
not consistent with that of an impact. In essence, no dent was evident as would be
apparent in the event a motor vehicle hit a pedestrian; consequently, the Accused
respectfully submits that there was no accident to report. He; therefore, was not in
breach of section 73 (3) of the Traffic Act.

CONCLUSION

The Accused urges this Honourable court to determine the issues as respectfully
proposed herein-above, and refers to the celebrated case of Ramanlal Trambaklal
Bhatt vs. Republic (1957) EA 334 as cited in Republic vs. Kyalo Musili
Musyimi [2016] eKLR, (at paragraph 11).

The question whether there is a case to answer cannot depend only on

whether there is some evidence irrespective of its credibility or weight
sufficient to put the accused on his defence. A mere scintilla of evidence
can never be enough; nor can any amount of worthless discredited
evidence.

Flowing from this, and the foregoing submissions as highlighted herein-above, the
accused humbly submits that no prima facie case is established against him to connect
him with the offences as alleged; consequently, this honourable court ought to find
that the Accused has no case to answer and acquit him on all counts pursuant to the
provisions of Section 306(1) of the Criminal Procedure Code.

Dated at Runyenjes this 4th day of October 2016

KIRIMI MBAKA
ACCUSED

[3]
Drawn & filed by:
Kirimi Mbaka

To be served upon:
The Director of Public Prosecutions
Runyenjes

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