Republic v Dancun Louis Okodoi

following a Transit vehicle which was heading to Bungoma. He and his client sustained injuries. That his client fell and sustained injuries on the right leg. That the motor vehicle stopped a few meters ahead and then proceeded and he later came to know that it was being driven by the accused person before court. 5. On cross-examination he testified that the accused person left the queue and hit him. That there was a Nissan ahead of him and he was on the left side facing Malaba direction. That he did not overtake the Nissan and that had he overtaken the Nissan he would have first collided it. 6. In re-examination he testified that there was no Nissan ahead of him. 7. PW2 was one Sharon Wanjiru who testified that on 10th September 2025 at 2100hours she had boarded a motor cycle and was heading to the stage of Grand Bus when she was hit by a motor vehicle. That she saw the Motor cycle heading towards Bungoma direction and they were facing Malaba direction. That there was a lorry also heading to Bungoma direction and the motor vehicle overtook it thus causing the accident. That the motor vehicle did not overtake properly as there was a queue of trailors heading to Uganda. She fell down and was assisted to go to hospital; She was first treated at Apex Hospital and later referred to Bungoma Zion Hospital where she was issued with a discharge summary and a metal was placed on her leg. She reported the accident the same day at the police station and she was issued with a P3 form which was filled at Kocholia Hospital. That she did not know the driver at the time but only came to see him in court. 8. On cross-examination she testified that she was not late and they were next to the trucks which were heading to Uganda. That the accused person overtook from the opposite direction and hit them as he was squeezing himself between the truck and motor cycles heading to Uganda. 9. There was no -reexamination for this witness. 10. PW3 was the clinical officer one Protus Okhonga Wafula of Kocholia Sub-County Hospital who testified that on 24 th October 2025 he saw a patient who claimed to have been involved in a road traffic accident on 10th September 2025 at 2030hours and who was at the time a pillion passenger on the motor cycle. That the vehicle was trying to overtake on the wrong side. She was in Pain and was walking with assistance of crutches. She had scars from stitching on the right side Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 2

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and she had surgery done at Zion Hospital and a plate inserted. The diagnosis was right mid femur fracture and he advised her to see an orthopaedic surgeon. He filled a P3 form with similar information and approximated the age of injuries to be 44 days and degree of injury was grievous harm. 11. On cross-examination he testified that that he confirmed that there was a fracture because there was an Xray Report and Xray film to show that a plate had been inserted and the persons who prepared the report was best placed to give that report. 12. In re-examination he testified that he confirmed that he saw the plate in the Xray and even without the Xray from his own examination he could confirm that the plate was there. 13. PW4 was one Peris Charana the motor vehicle inspector who prepared reports with respect to motor vehicle registration number KBU409H and motor cycle registration number KMCM 996B. That the motor vehicle had damage to the right wing which was dented, front bumper was damaged on the right side and the right lamp was broken. The vehicle had no pre-accident defects. The motor cycle was not damaged and the it had no pre-accident defects. 14. On cross-examination she testified that the motor cycle was hit by the motor vehicle from the driver’s side. That she could not tell how the accident occurred but the Investigating Officer was best placed to explain the circumstances. That the accused person’s vehicle had no pre-accident defects. 15. PW5 was the investigating officer one Peris Njeri Wanjiru who testified that on 10th September 2025 at 2100hours she got a call from one Mr. Gachoki that his daughter had been involved in an accident and taken to hospital. She rushed to Apex Hospital and found one Sharon Wanjiru with a swollen right leg. She interrogated her and she was informed that the she had been hit by a motor vehicle a double cab and which she knew the registration number as KBU and which had a public address system which she could see occasionally in Malaba. She asked who the motor vehicle belonged to and she was told it belonged to Babu. She informed the Deputy Base Commander of the accident and the accused person was asked to avail the motor vehicle at the police station at 2300hours. She interrogated the complainant who informed her that she was heading towards Malaba general direction and the accused person was driving towards Bnngoma direction. There was a queue and the accused person was Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 3

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overtaking a trailer and hit them. He did not stop On 15 th September 2025 the rider of the motor cycle brought motor cycle to the station and it was inspected. She recorded statements and issued a P3 form and the accused person was charged with the offence before court. That the vehicle had been painted and she could not tell the point of impact but from the statements, it would appear that the accused person hit the complainant on the right side. 16. On cross-examination she testified that if there is queue facing Uganda direction and there was a Nissan as the accused person alleged then the accused person could have collided with the Nissan instead. That there was a bystander who witnessed the accident but refused to record a statement. That both the accused person and rider did not stop after the accident. That when the accused person was called he went to the station at 0023hours. 17. On cross-examination she testified that she charged the rider of the motor cycle with riding without a license and without insurance and there was was no charge for careless riding. That the accused person overtook and hit the motor cycle. 18. There was no re-examination for this witness. 19. This marked close of the prosecution’s case. Pursuant to a ruling delivered on 25th June 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. 20. He elected to give sworn evidence and call two witness. However, on the date of hearing he called only one witness. 21. The accused person testified as DW1 and told the court that on 10 th August 2025 he was not inebriated and he was leaving work going to Bungoma. That on getting to equity area in Malaba and while driving at 30km per hour there was a Nissan ahead of him. He saw the motor cycle overtaking the Nissan and it hit his headlamp. He moved ahead and later heard screams but he did not see the motor cycle that it had been alleged that he had hit. That at 2300hours he was later called by a police officer and he took the motor vehicle to the police station. He enquired about the motor cycle and he was told after a week that it had been traced. That his vehicle was not damaged and that is why he enquired about the motor cyle. 22. On cross-examination he confirmed driving at night and testified that he was not overtaking . He did not see the motor cycle which just Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 4

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bumped into him. That he stopped about 200 metres ahead and was informed that the complainant was injured and taken to hospital. 23. DW2 was one Alvin Otwane who testified that on the material date at around 2100hours at equity area and on his way to winkers. That the dirver was not at a high speed . That there was an incoming Nissan matatu and they saw a motor cycle appear abruptly and which hit them on the drivers side. They proceeded with their journey and heard people shouting. That they went to the scene and found that the motor cycle was not there. One Babu took the girl to hospital and he was later informed that the motor cycle resurfaced after a week. That the driver was called to take the vehicle at the police station at 2300hours which he did. 24. On cross-examination he testified that he was seated behind the driver and he could see the front. That he heard vehicle being brushed on the right side. That he could not tell if the motor cycle overtook the Nissan but there was no vehicle ahead of them. That he had boarded a private vehicle which he did not know its make. 25. This marked close of the Defense case and the court reserved the matter for judgment on 10th September 2026 when the judgment was not ready and deferred to 1st October 2026. Analysis and Determination 26. 27. 28. The essential question under this count is whether the prosecution has established beyond reasonable doubt that the accused drove the motor vehicle without due care and attention or without reasonable consideration for other persons using the road. There is no dispute that an incident involving the accused's motor vehicle and the motorcycle occurred. There is also evidence that PW2 sustained injuries and was treated, with PW3, the clinical officer, classifying the injuries as grievous harm. PW4, the motor vehicle examiner, further established that the accused's motor vehicle had no pre-accident mechanical defect. The principal evidence against the accused is that he was overtaking a trailer and, while doing so, hit the motorcycle. PW1, who was riding the motorcycle, testified that there was a queue of traffic towards the customs area and that the remaining portion of the road was being used by traffic moving in both directions. According to him, the accused was overtaking a truck ahead of him when he collided with the motorcycle. Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 5

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29. PW2, the injured passenger, gave evidence substantially supporting PW1's account. The accused, on the other hand, gave a different version. His case was that there was a Nissan which the motorcycle was attempting to overtake and that the motorcycle consequently rammed into his vehicle. DW2 similarly testified that he heard the motorcycle brush against their vehicle but could not confirm the existence, make or registration of the alleged Nissan. 30. The court has carefully considered these competing versions. The difficulty for the prosecution, however, is that its evidence does not satisfactorily establish the precise circumstances of the collision. In particular, no evidence was adduced as to the actual point of impact. PW5, the investigating officer, candidly stated that she could not establish the point of impact and instead relied on the motor vehicle examiner's report. 31. This is significant because the mechanical evidence does not wholly support the prosecution's account. PW4 found damage to the right front bumper and right headlamp of the accused's vehicle, but found no damage to the motorcycle. This is difficult to reconcile with the prosecution's assertion that the motor vehicle hit the motorcycle in the circumstances alleged, particularly when the prosecution case is that the motorcycle was carrying PW2, who sustained a fracture of the right femur. 32. The prosecution did not call any independent eyewitness to the collision. No police officer visited or documented the scene of the accident. There is therefore no scene sketch, measurements, photographs, skid marks, debris pattern or other scene evidence from which the court can independently reconstruct the manner in which the collision occurred. 33. The investigating officer's evidence also raises questions concerning the manner in which the accused was traced. She testified that she was informed of the accident and that the vehicle was subsequently brought to the police station at about 0023 hours after she contacted the accused. Her evidence was that the vehicle was identified from its description, including the public address system fitted to it. The prosecution did not, however, place before the court evidence of how the accused's telephone number was obtained or of any contemporaneous investigation at the scene connecting the accused's vehicle to the collision. Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 6

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34. It is also noteworthy that the motorcycle rider did not remain at the scene or immediately report the matter to the police. According to PW5, he presented himself at the police station about five days later, on 15th September 2025. The rider was thereafter charged with driving without a licence and without insurance. While those matters do not, of themselves, establish that he caused the accident, they are circumstances that required the prosecution to undertake a careful and objective investigation of the competing accounts rather than assume that the accused was responsible merely because his vehicle was identified. 35. I have also considered the accused's contention that he was travelling at approximately 30 kilometres per hour. There is, indeed, no independent evidence establishing the speed at which the accused was driving. The prosecution did not call evidence from an eyewitness estimating the speed, nor was there any expert reconstruction of the accident from which the court could draw such an inference. I therefore cannot make a finding of excessive or dangerous speed merely from the occurrence of the accident. 36. The prosecution's case also refers to the accused overtaking a trailer. Overtaking, in itself, is not proof of driving without due care and attention. The prosecution was required to establish that the manner in which the accused undertook the manoeuvre was such that, in the circumstances prevailing on the road, it amounted to a failure to exercise the requisite care or reasonable consideration for other road users. The evidence concerning the traffic queue and the use of the road by vehicles travelling in both directions is relevant to this inquiry. However, in the absence of evidence establishing the position of the vehicles, the point of impact, the relative movements of the vehicles or the precise manner in which the accused overtook, the court is left with competing accounts which cannot safely be resolved in favour of the prosecution. 37. The court is also mindful of the physical condition of the accused's vehicle. The broken right headlamp and damaged right front bumper demonstrate that the vehicle was involved in some impact. They do not, however, establish by themselves that the accused was driving without due care and attention. Equally, the fact that PW2 was injured establishes injury but does not establish who was responsible for the collision or that the injury occurred in the precise manner alleged by the prosecution. Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 7

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38. The defence version is not necessarily required to be independently proved. The prosecution must succeed on the strength of its own evidence. Even if the court were to find the accused's account unconvincing in some respects, that would not relieve the prosecution of its burden of proving beyond reasonable doubt that the accused drove without due care and attention. 39. In the final analysis, the prosecution has proved that an accident occurred involving the accused's motor vehicle and the motorcycle and that PW2 sustained injuries. What remains insufficiently proved is how the collision occurred and, more importantly, whether it was attributable to a failure by the accused to exercise due care and attention or reasonable consideration for other road users. 40. The absence of scene evidence, the inability of the investigating officer to establish the point of impact, the absence of independent eyewitness evidence, the absence of evidence regarding the accused's speed, and the apparent inconsistency between the alleged collision and the motor vehicle examiner's finding that the motorcycle had no damage cumulatively leave a reasonable doubt regarding the prosecution's case. 41. The court must be careful not to convert what may potentially constitute a civil claim arising from a road traffic accident into criminal liability without proof of the statutory ingredients of the offence. A conviction cannot rest merely upon the fact that an accident occurred and that one of the persons involved was injured. 42. I therefore find that the prosecution has not proved beyond reasonable doubt that the accused drove the motor vehicle without due care and attention or in a manner amounting to the particulars set out in the charge sheet. 43. Accordingly, the accused person is entitled to the benefit of the doubt. He is therefore acquitted under section 215 of the Criminal Procedure Code. Cash Bail to be refunded to the Depositor upon proper identification. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 1ST DAY OF OCTOBER 2026. In the Presence of Dancan Louis Okodoi the Accused Person and Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 8

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Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE 01.10.2026 Judgment Traffic Case No. E207 OF 2025 Hon. A.Z Ogange-R.M pg. 9

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