Edson Kitwika vs Republic (Criminal Appeal No. 8 of 1996) [1999] TZHC 223 (3 September 1999)

• ,.. IN THE HIGH COURT OF TANZANIA MMYA APPELLATE JURISDICTION (Mfl REGISTRY) CRINAL APPEAL NO. 8 OF 1996 (ORIGINAL CRflIINAL TRAFFIC CASE NO. OF' 1995 OF THE DISTRICT COURT OF RUNGM , DISTRICT AT TUKIJYIT) EDSON KITWIKA ...... .. . . •.. ..... . . . ..4PPELLANT VERSUS TI-S HPUBLIC. • *' e •. • .•. • . •. . •. • •• ; . RESPONflENT

• JUDGEMENT Tiis appellant Ed-son Kitwika pleaded guilty to the offence of Traifio prescribed under ss. 40, 63(2)(b) and 27(1) (a) of the t: Trafi3 Act o± 1973.* tInder. these sections the punishment prescribed, is an imprisonment of 1 year minimum upto 3 years maxirau: lnlpris.)nment or a fine of shs.10,0001= minimum or shs330,000/= maximum. . The learned Mr, .Mbise Advocate for the appellant has contended. that since the facts gvcn were in ICiswahili the words co'ering the 'dangerous driving through ig}7 i'pae pr1fl13h1V - that • "Uendesha ji gari we hatari" could have moanthe driving was dangrcus, reôkless or noglint. '. •• Th intended charge for the appellant to face was under section 40 of the Traffic Aet which is one of dangerous drivi.n and the facts given in the manner he was driving his motor vhic1' bus at high speed ma town area of Kiwira minor settlement in which he knocked a pedestrian police officer also supported the . . . ./2

o ft 2 particulars of 6 ffendà -arid the statement of:offnce. I . therofor dont see any grounds for i'zàxiñg'tho conviction for driving dangorously under s.' 40 of the 'Trtffidct since the plea of guilty was quite une quivoccil. The arguments of the learned Mr. I,Tbiso tdvocate of the appellant thrt the appellant pleaded guilty t'ndor 1I ioivthat he wouJ4 betthished with a more fir rather than an inp'isorinent term is not relevant to his plea of guilty be cause at the time o.f pie a ding guilty the stance of sentence hd'not yet been reached and ho was wrongly. foreseeing what the court would do to him after conviction when he was not the magistrate himself. It would be different if there was a as person such1a police officer or police investigator or official wo of the oottonvinced him to plea guilty with an assurance that he would ge t a -"light purn shrient, In that si tus ti n hi s pie a of guilty undr those óircumstances inightbe taken to have been equivocal, That was not'the case heio where the appellant, on his own -volition pleaded guiltyo The leanied 1trs. Makuru,Soriior thto rney's 'arguen. ' what was orronously thtated in the sttothónt of 'offonóe .'was.the ttng, of socion 63(2)(1) of thr--' - Trdffic Jct instetd of s"63(2) (a) of the same •Traffi Act. This error is curable under, section. 388 of the C.P.A. which I hereby cure for, it touches on the d'111no uiiishab10 ±àther on the ingrecUentsof the offence itsolf The lèarxec1 Mr. 'Mbise 'Advocato 'has pryed' that the cure to be done by this court should be to alter the charge iñits statement of offe'nce from one of "bausing "death by dangerous driving

'2 3 • under c eti. on 40 to one of causing aeath by careless driving under section .ft of the Traio Jet, That kind of, alteration in the cha sheet Can't be dono by the ooirtfor the cburt ..................................... .aftc? all. .: an bi - the r'ino 4 offence of cauin death by caress driving undev 00,41 of Craff, A.i.ince the appellant roady bomerl phargod with a .. serious of kiced dah by dazinrous 4riving c/s 10 of the Traffi.c Alti lia t124 P**ULeD oa.fqb u,bri tuti oil is not waraitod ±or the appela4 1o.ckod dc de.stu who was at the riiAdle of the ore çue cs.ibJs faj the apeliant to ha hJ.in from, a di;t4nec and breakal in time or doto i1 2 l4 .fl tarEi eg 'that the drivi S AllOgOd in the statomcait. of affenc and. Q5. sippod by the f -a eta given ba the pros4tion . ha appea. nA.- .is iIaa uritous for. ' - the 2 ro ars imprisonment is the minira2m and the tX'ial court' s ore t4m n. J.ng ix atbe. .tha3. a fine was qui10 justified, Thp, dead deceased had a right to.be alivo.now. as the appellant is end. the deceased's early termination of his life and employment as a po1ie officer at the perna1',.Whims of the appellant is qtiitc unacceptable in. our ..coinmunity and has always had to public oitry. .1fter all, it is wrong to issue that had he been convic - ed for eareless driving and thereby causing• he death would have attracted a lesser sentence than 2.years imprison- ment which is still lawfully within the range of a sontonco of 1 —. 3 years prescribo.d under se:ction 41 and[63.(2)() of the e. 9 • • S

p Traffic act, ? T:,3ppOai against, conviction rdsonton, is eustainod, The 3ppOal'iS h'rnissoa. / N / EL.K. UIJDGE 3.9,96 1-2

Corr.rn HorMviipopo, J ' ppe11nt— p'esent in person - For i,ppo11antMr, I\Tbise 4c1voate 11. •-3bsent ]Ir. .u1okva, Ste ttomey 'or 1he RepiJ1ic - pxsent C/C: E.uL8 ..- Qourt: Judgenent de1ivcroc). Right of pp1 explained,

) 4 E.L.K. MVIIPOPO 4--.

• JTDGE - --

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