A garbage truck driver charged with driving a lorry on Muigai Kenyatta road in Dandora while drunk was acquitted because the prosecution failed to prove he was incapable of maintaining control of the vehicle.
Boniface Kobia, an employee of Richmond Recyclers Company, was charged with driving the commercial truck on a public road while drunk on April 8 last year.
Kobia was facing an additional count of failing to maintain parts and equipment in contravention of Traffic Act.
He was stopped by a policeman outside Dandora police station as he drove from the Dandora dumpsite towards Kariobangi.
Kobia was accused of operating a vehicle with defective passenger door and seat belt and also for failing to maintain the parts of the vehicle.
In his defence, Kobia said he did not exceed the alcohol limits set by his company and the officers did not ascertain the same.
The lorry driver also said that he is not allowed to carry any passengers hence the passenger door is permanently blocked and there is no seat belt for any passenger.
The prosecution had called three witnesses to testify against Kobia but lost after he was acquitted by senior resident magistrate Lewis Gatheru of Makadara law courts.
A breathalyzer test receipt showing Kobia was found to have 0.24mg/l alcohol content in his body was generated and printed and used as a key exhibit in court.
“The prosecution averred that the accused was driving the motor vehicle in question while drunk and produced a Breathalyzer receipt to prove their averment. It is my profound view that a Breathalyzer receipt such as the one produced in court will act as prima farcie proof that the accused was drunk to the extent specified,” Gatheru said.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
“The accused does not deny the contents of the Breathalyzer receipt, driving the said vehicle and on a public road. What I however note are the other elements of the charge including whether the accused was unable to maintain the proper control of the vehicle due to drunkenness,” the magistrate ruled.
But Gatheru said the charge raised two things, whether Kobia was driving while exceeding [alcohol] limits and/or if he was incapable of maintaining proper control of the vehicle.
He said it was upon the prosecution to call witnesses to prove the same but did not.
“It is not alleged that the accused failed to maintain the proper control of the vehicle at any given time. His charges were purely based on breathalyzer test,”Gatheru added.
“The limit set under rule 3[1] is 0.35 micrograms per litre. The accused’s test was well below that at 2.4ml/l. Section 44 applies to private motorists. Even if it exceeded, section 44 requires another ingredient: lack of proper control of the vehicle.”
