Bryan Khaemba, a senior resident magistrate at Kiambu Law Courts, on Friday, ruled that drunk driving was not an offence as long as the driver was capable of being in control of the vehicle.
While making the ruling in a traffic case against Michael Ngobe Mugo who was arrested and charged for drunk driving in May 2018, Khaemba stated that the police failed to show that the accused was drunk.
The judge argued 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.
He stated that all that was presented before him was that Mugo was driving under the influence of alcohol, which in itself is not an offense.
According to the magistrate, he could not understand whether the driver was drunk while driving or whether he was driving under the influence.
More so, he wanted to understand whether as a result of the drinking, the driver was incapable of having control of 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 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.
"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," the Act states.
