Masumbuko Athuman vs Republic [1991] TZHC 2 (31 January 1991)


Chipeta, J.: The appellant, Masumbuko Athuman, was charged before Kigoma District Court with the offence of causing death by dangerous driving contrary to sections 40(I) and 63 (a) of the Road Traffic Act. 1973. He was convicted as charged and was sentenced to two years imprisonment. He was further disqualified from driving for a G period of three years. He now appeals.
The evidence on record reveals that just before the accident, the deceased, who was a child, had been playing with one Almasi Juma (P.W.I) aged 14 years, some ten paces from Kigoma - Kasulu road. The deceased threw an orange peel at P.W.I, and when the latter tried to retaliate, the deceased ran away to go across the road, and as he H did so, a lorry which was being driven by the appellant knocked him. He died shortly afterwards from the injuries he received as a result of the accident.
The appellant stopped the motor vehicle a short distance (78 feet) from the point of impact and ran away for fear I of mob justice.

A There were two eye-witnesses: P.WI is the only one who said that the appellant was "driving at a high speed". P.W.2 never talked about the speed of the motor vehicle.
In his defence the appellant said that he saw the deceased from a distance of 12 to 15 paces.
B On the evidence on record, and as rightly pointed out by Mr Bilaro, learned state attorney, the speed at which the appellant was driving cannot be said to have been established. A court cannot convict a person of dangerous or careless driving when the finding of dangerous or careless driving is based solely on opinion evidence about his C speed where such opinion is arrived at on quite insufficient data. (See Daya v Republic, [1964] E.A 529).
In the present case, P.W.I simply said that the appellant was "driving at a high speed". That cannot suffice to prove the fact of speed.
D Was there, then, any other evidence to prove dangerous driving on the part of the appellant? As I understand the law, a conviction for careless or dangerous driving must be base on a finding of fact that the driver charged with the offence was guilty of some act or omission which was negligent and which was a departure from the E standard of driving expected of a reasonable prudent driver. The duty of drivers is to keep a reasonable look out for obstructions or traffic ahead in time to avoid a collision. But, as Law, J pointed out in the case of R. v Wallace, [1958] E.A 582, at page 585:
F The duty is keep a reasonable look-out, and not to have to anticipate unreasonable or dangerous behaviour on the part of other drivers.
G To put it differently, the offence of dangerous driving is not an absolute office but involves a finding of fault on the part of the driver. In other words, the test to be used is the objective test (See Mkwenye v Republic. [1973] LRT n. 50; and Khalif v Republic, [1973] E.A. 364). In the words of Onyiuke, J in the case of Pyarali v Republic [1971] E.A. 169, at page 171:
H .. if the manner of actual driving produces a situation, which viewed objectively, that is to say, which a reasonable man would consider dangerous then that driving is dangerous ...
I To put it in another way, when a driver who is in control of his vehicle, does an act which any reasonable person would

say is a dangerous piece of driving or a dangerous manoeuvre, then that driving is dangerous. A
So, the mere fact that an accident has happened does not necessarily mean that a particular driver has driven dangerously. For instance, if a driver, through no fault of his own, is faced with a sudden emergency and, is taking B evasive action to avert an accident, collides with another vehicle or knocks down a pedestrian, such a driver cannot be said to be guilty of dangerous driving.
In the present case, the prosecution alleged that what constituted dangerous driving was that the appellant "drove recklessly faster on the said road". But, as pointed earlier, the evidence as to speed was no more than opinion C evidence based on insufficient data. From the evidence, it appears to me that the deceased tried to cross the road when the appellant's motor vehicle was already very near, and so the appellant was faced with a sudden D emergency through no fault of his own.
For these reasons, I respectfully agree with Mr Bilaro, learned state attorney that the appellant ought to have been given the benefit of the doubt. The appeal accordingly succeeds. The appellant's conviction is hereby quashed E and the sentence and order of disqualification are set aside. The appellant shall be released from custody forthwith unless otherwise lawfully held.
Appeal allowed. F


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