Horestes Mkumba vs Republic (HC Criminal Appeal No. 43 of 1998) [1999] TZHC 288 (19 November 1999)

IN~~ HGH CQU,Rr OF, ';I'ANl4 - · ---- -- ' ' .AT MBEYA ·,, . •,· · HIGI:J: o:>URT CRIMIN.AL .APPEAL NO. 4 3 OF 1998 (Original Criminal Case (Traffic) No. 9, of, 1997 of t:1e District Court of Rungwe District at Tukuyu Befre: D.D. Komba - District Magistrate) HORESTEE MKUMBA ~~ELI.ANT Versus .. 'HE REPUBLIC aooeoeoeooooooooo••••• RESPONDENT JUD<m:NT MOSHI, J. The district court of Rungwe district at Tukuyu setenced the appellant. ,, Horestes /o Mkumba, to a fine of shs.20,000/= or two years imprisonment in default, consequent upon a conviction for one count of Careless and Inconsiderate use of a motor vehicle, contrary to sections 50(1), 27(b) and 63(d) of the Road Traffic Act 1973• The c,:nviction and sentence aggrieved the appellant, hence this, appeal which was preferred an argued before me by his learned advocate, Mr. Mushokorwa. The. ' learned state·attorney for the Republic; Mr. Boniface, declined to support the convietion of the appellant. This appeal raises two points of law which were fatal to the conviction of the 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, first:cy, that .the charge preferred against the appellant was bad for duplicity to the . . -- .. - prejud;i.ce. o:t:. tlti-,appe.;I.lant and, secondly, that the particulars of the offence charged die;losec:l:pp .qffence known to law. . ' ' . -- -· . -. . . The offe:o.J.es, oft careless and inconsiderate use of mo'tor vehicle are created by sectio 50(1) of.the Road Traffic Act 1973, hereinafter cc.lled the Act, which is couched in these words: Any person who uses 1 parks or stands a motor vehicle or trailer on any road carelessly or without reasonabl~ consideration for other persons using the road shall be ·

• ,· guilty'oi an offence~ 1' .. '- • 0 ••• 0 • 0 0 • • :;2

; ; , ; • I i:, : ~ ,., .... _,, 2 ,J:, ~ : '• .. :--./;-.:'. -}. . ~ .. The pat'ticu.1,ars.o! offence in'the"charge preferred against the appellant read as follows: That Horestes s/o Mkumba charged on 2oth day of November 1997 at about 12.00 hrs. 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 Reg. No. TZM 5877 make HIACE Mini-bus which was driven by Epimack s/o Mrema. I would, with respect, agree with both learned counsel that the charge in distinct this case was bad for duplicity. Section 50( 1) of the Act creates two , : ! .. offences, that is to say, careless using, parking or standing of mot-or vehicle and incoru.;iderate 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 duplicity 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 this court cited and relied upon by _both learned counsel is Mussa Asakwe v. Republic (19'8o{T~ {, .. .:. 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 manner 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 es!3ential, therefore, that the parHcW.ars of the charge disclose the act 0r omission complained of, that is, what constitutes the careless or inconsiderate manner of the accused's mode of driving; for instance, t~;:i:he accused was·driving ton f'ast, too slowly, inattentively, erratically, or such other manner which having regard to the prevailling circumstances at the time would pose a danger to other r0;:i~ n,<=:; 0 ,:-c, ,, Otherwise a charge would hardly disclose the offence- SEE R.v. OE,i Isumail (1970) HCD 341. •••ooo••• /3

• 3 .. In this ease, the particul8.l'iS o.f the charge did not disclose in what manner the using of the motor vehicle by the appellant was careleGs or inconsiderate. All that is stated is the attempt to knock the other motor 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, I 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. AT MBEYA. 19 November 1999. For Appellant: Mr. Mushokorwa, advocate. For Republic: Mr. Mulokozi, S.A. B.P. MOSHI JUDGE.