Lawyer offers option for family of boy killed by motorist

Wilson Kiambati, the father of Brian Kiambati who was killed by a motorist two years, ago gives an interview at his home in South B, Nairobi, on February 27, 2018. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

What you need to know:

  • Job Nyongesa Wangila was found guilty of causing the death of 21-year-old Brian Kiambati on January 2016.
  • Traffic offences are based on the assumption that the accused was not in control of the situation.

This week’s ruling by a magistrate’s court slapping a fine of Sh350,000 on a surveyor who caused the death of a university student through dangerous driving has sparked debate on whether the law is fair to accident victims.

Job Nyongesa Wangila was found guilty of causing the death of 21-year-old Brian Kiambati on January 2016.

The traffic Act provides that once convicted for causing death by dangerous driving, a person is liable to imprisonment for a maximum of 10 years.

BAIL TERMS

According to lawyer Edward Oonge, the law has made it easy to get away with a serious offence because the accused will face the charge of careless driving or any other.

“The charges under traffic offences also attract lenient bail terms and rarely do the suspects get custodial sentences pending judgment,” Mr Oonge said.

“The sentencing is not as severe as when a person is charged with murder. We need to change the law.”

According to the law, a murder charge can only be proved if the prosecution can show the accused had the intention to kill and effected the killing through a road crash.

TRAFFIC OFFENCES

That way, the vehicle becomes the murder weapon.

Traffic offences however are based on the assumption that the accused was not in control of the situation.

Lawyer Danstan Omari said Wangila could not be accused of murder because he was driving, saw the National Transport and Safety Authority officers and in an attempt to avoid them, hit the student who later died.

“The prosecution could not prove he had the intention to kill or even killed in self-defence so that he can then be charged with manslaughter,” he said.

FINE
Whereas the magistrate strictly followed the law, it is Parliament which should revise it if they wish to make it more punitive to deter drunk and careless drivers.

In Mr Omari’s view, the Sh350,000 fine was too lenient and not sufficient to send a strong warning to other careless drivers.

“Had it been high, it would have sent shock waves showing the Judiciary does not condone such behaviour,” he said.

The fine will be going to the government coffers but it is not enough to repair the damage to the road or refund the resources used by the police who handled the case.

CIVIL CASE
The family of Mr Kiambati now have the option of filing a civil claim against Wangila, the owner of the vehicle and its insurer to seek compensation.

The conviction will be used to justify the claim for damages and the family may raise a claim of the amount they incurred educating the student.

However, even if dissatisfied with the sentence, the parents cannot appeal because it was not their case.

It was a case by the Director of Public Prosecutions (DPP) and as such only the DPP can appeal.