Horestes Mkumba vs Republic (High Court Criminal Appeal No. 43 of 1998) [1999] TZHC 373 (19 November 1999)

IN THE HIGH COURl' OF TANZANIA ·- ' ; AT MBEYA HIGH OOURr CRIMIN.AL .APPEAL NOo 43 OF 1998 (Original Criminal Case (Traffic) Noo 9 of 1997 of the District Court of Rungwe District at Tukuyu Bef~re: DoD. Komba - District Magistrate) HORESTES MKUMBA oooeoeoeooooooeooeo APPELLANT Versus THE REPUBLIC RESPONDENT JUDGMENT MOSHI, J:; The dis.trict court. of Rungwe district at Tukuyu sentenced the apPellant, Horestes s/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 T:ra.ffic 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 attorney for the Republic, Mr. Boniface, declined to support the conviction 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 raiseo. 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 offences of careless and inconsiderate use of motor -;•ehicle 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 a:ny road carelessly or without reasonable consideration for other persons using the road shall be · guilty of an offence. eo•••o•oo•e /2

. . ' ._ ,-- .· '".:-~ . The part.i.culars of--0:ffenc-,::; _in the charge preferred against the appellant read as follows: That Horestes s/o Mkumba charged on 20th day of Novernbe 1997 at about, 12000 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 inconsderably did drive the said moto_vehicle, hence attempted to knock another motor vehicle Reg. No. TZM 5877 make HIACE Mini-bus which was driven by Epimck 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 motor vehicle _- and inci;maiderate 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--· • .i .• or more offences are ·charged in the same count of an indictment, the dictent 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 .. ' 11· ...... 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 -• Republic (180) TLR 324. In the circumstances of this case, it would be unsafe to say that th 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 uBe 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 ~ast, too slowly, inattentively, erratically, or such other manner which having regard to the prevaiJ+i.ng circumstances at the time would pose a danger to other ro:.:id USA.,..c:;" Otherwise a charge would hardly disclose ••••. 0000• /3'

,__,.. In this case, the particulars of the charge did not diGlose ih what manner the using of the motor vehicle by the appellant was careless or inconsiderate. All that is stated is the attempt to·.knock the other motor vehiclel 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 kriown 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 • .. ---