Drunk driving in Kenya is not an offense as long as you are still in control of the vehicle, a Kiambu Court has ruled.
Kiambu Senior Resident Magistrate Bryan Khaemba made the ruling following a case where a driver, Michael Ngobe Mugo, was charged with the offense of drunk driving.
The accused was charged with the offense of driving a motor vehicle under the influence of alcohol contrary to section 44 (1) of the Traffic Act, which states that:
“Any person who, when driving or attempting to drive, or when in charge of a motor vehicle on a road or other public place, is under the influence of drink or drug to such an extent as to be incapable of having proper control of the vehicle, shall be guilty of an offence and liable to a fine not exceeding one hundred thousand shillings or to be imprisonment for a term not exceeding two years or both.”
However, according to the magistrate, he failed to comprehend whether Mr. Mugo was drunk while driving or whether he was driving under the influence. Additionally, Khaemba needed to know whether as a result of the drinking, the driver was incapable of having control of the vehicle.
The police claimed that the accused did not have proper control of the vehicle he was driving under the influence of alcohol on May 23, 2018, at 8 pm along Banana-Ruaka road in Kiambu.
One of the officers who testified in the case argued that the accused overpowered him and two of his colleagues and were, therefore, unable to arrest him.
In his ruling, Khaemba noted that there was no way a drunk person would overpower three police officers during an arrest.
“Such is not conduct expected from a person who is alleged to be too drunk to control a motor vehicle,” part of the ruling read.
Khaemba ruled that for a charge of driving under the influence of alcohol to stand, the prosecution has to adduce evidence that a motorist cannot control the vehicle.
“In the case, from the facts on the charge sheet and the evidence of the single witness for the prosecution, there is no evidence that the accused was not in proper control of the vehicle or was affected by the drink if any,” the magistrate’s ruling read in part.
The court dismissed the case and added that Mr. Mugo was not affected by the alcohol, which is why the officers failed to arrest him.
“The upshot is that I find that the State was unable to establish a prima facie case against the accused for failing to adduce evidence on the control of the said vehicle or lack of it,” ruled Magistrate Khaemba.
The court further noted that driving under the influence of alcohol, in itself, is not an offense.