Horestes Mkumba vs Republic (High Court Criminal Appeal No. 43 of 1998) [1999] TZHC 234 (19 November 1999)

IN THE HIGH COURP OF TANZANIA • AT MBEYA HIGH COURT CRIMINAL APPEAL NO. 43 OF 1998 (Original Criminal Case (Traffic) No. 9 of 1997 of tue District Court of Rungwe District at Tukuyu Befjre: D.D. Komba - District Magistrate) HORESTES MKtJMBA • S 0 0 0 0 a • 0 S APPELLA1'T Versus THE REPUBLIC • • • • o o a a a a 0 a • a 0 • • RESPONDENT J1JD4ENT sLy MOSHI, J. The district court of Rungwe district at Tukuyu sentenced the appellant, Horestes s/o Mkuntha, to a fine of shs.20,000/ or two years imprisonment in default, consequent upon a conviction for one count of Careless andInconsiderate use of a motor vehicle, contrary to sections 50(1), 27(b) and 63(d) of the Road Traffic Act 1973. The conviction and sentence aggrieved the appellant, hence this appeal which was preferred and argued before me by his learned advocate, Mr. Mushokorwa. The learned state attoThey for the Republic, Mr. Boniface, declined to support the )flViCtiOfl of the appellant. This appeal raises two points of law which were fatal to the conviction of ie appellant. They obtain in the charge. They were raised in the memorandum of appeal by Mr. Mushokorwa, and Mr. Boniface agreed with him. They were, firstly, that the charge preferred against the appellant was bad for duplicity to the prejudice of the appellant and; secondly, that the particulars of the offence charged disclosed no offence known to law. The off ences of careless and inconsiderate use of motor vehicle are created by section 50(1) of the Road Traffic Act 1973, hereinafter called the Act, which is couched in these words: Any person who uses parks or stands a motor vehicle or trailer on any road carelessly or without reasonablc consideration for other persons using the road shall be guilty of an offence. /2

The Partipulpxw. o'. .offece In the charge preferred against the appellant read as follows: That Horestes s/o Mkurnba charged on 20th day of November 1997 at about 12,00 hi's, at Kyimo bus stand along Tukuyu - Mbeya road being a driver and incharge of a motor vehicle Reg. No. TZM 6959 make Toyota DCM Mini-bus carelessly and inconsiderably did drive the said motor vehicle, hence attempted to knock another motor vehicle Peg. No. TZM 5877 make HLACE Mini-bus which was driven by Epimack s/o Mrema. I would, with respect, agree with both learned counsel that the charge in this case was bad for duplicity. Section 50(1) of the Act creates two distinct offences, that is to say, careless using, parking or standing of motor vehicle and inconsiderate using,. parking or standing of motor vehicle. Duplicity in law means the charging of two or more separate offences in the same count. Where two or more offences are charged in the same count of an indictment, the indictment is, to that extent, bad for duplicity. The law relating to duplicit' is intended to avoid subjecting an accused person to an unfair trial, so that he may know exactly what case he has to answer, The case in point decided by thié öóut Cited and relied upon by both, learned counsel is MussaAsakwe v. Republiö (1980) TLR 324. In the circumstances of this case, it would be unsafe to say that the appellant was not in any way prejudiced by this error in the charge. Secondly, a charge under section 50(1) of the Act ought to disclose in what maimer the using, parking or standing of the motor vehicle was careless or inconsiderate. The offences of careless or inconsiderate use of a motor vehicle are not absolute offences at alL. it is essential, therefore, that the particulars of the charge disclose the act or omission complained of, that is, what constitutes the careless or inconsiderate manner of the accused's mode of driving; for instance, that the, accused was driving too fast, too slowly, inattentively, erratically, or such other manner which having regard to the prevailling circumstances at the time would pose a danger to other rrr. 'is - -. Otherwise a charge would hardly disclose the offence—. SEE P.v. OmariLsuinail (1970) HCD 341. .90000..• /3

-3- p In this case, the particulars of the chargé did not disclose in what manner the usIng of the motor vehicle by the appellant was careless or inôonsiderate. All that is stated is the attempt to knock the other motor

46 vehicle. This was damned inadequate. The mere fact of an attempted accident did not mean that the motor vehicle was being used carelessly or without reasonable consideration for other persons using the road. In the circumstances, would, with respect, agree with both learned counsel that the particulars of the charge preferred against the appellant disclosed no offence known to law. For the reasons I have given, I allow the appeal, quash the conviction, and set aside the sentence imposed thereon. It comes out from the record that the appellant paid the fine, so the same should be refunded to him. / .c , r I-; U •.'. •.: •z JZ; (:' •:';; N V • \ AT I'EYA. -- 19 November 1999. ]3.P. MOSHI J1JDGE

• For Appellant: Mr. Mushokorwa, advocate.
• For Republic: Mr. Mulokozi, S.A.