Ask a lawyer:
if a driver hits a pedestrian at what point can they be charged with manslaughter?

Table of Contents

1. Introduction

2. Manslaughter 2.1. Unlawful Act Manslaughter 2.2. Gross Negligence Manslaughter

3. Application to a Driver Hitting a Pedestrian

4. Conclusion

Introduction

This response will address the question of when a driver who hits a pedestrian can be charged with manslaughter in Kenya. It will delve into the legal definition of manslaughter, specifically focusing on the two main types: unlawful act manslaughter and gross negligence manslaughter. The response will then apply these legal principles to the scenario of a driver hitting a pedestrian, outlining the factors that would be considered in determining whether manslaughter charges are applicable.

Manslaughter

Manslaughter is a criminal offense in Kenya that involves the unlawful killing of another human being without malice aforethought. It is a less serious offense than murder, which requires the element of malice aforethought, meaning the intention to kill.

The Penal Code, Cap 63, Laws of Kenya, defines manslaughter in Section 202 as follows:

"Any person who unlawfully kills another without malice aforethought is guilty of manslaughter."

There are two main types of manslaughter in Kenya:

2.1. Unlawful Act Manslaughter

Unlawful act manslaughter occurs when a person commits an unlawful act that is dangerous and results in the death of another person. The act must be unlawful and dangerous in the sense that it carries a risk of some harm to another person.

The key elements of unlawful act manslaughter are:

• An unlawful act: The act must be a criminal offense, not merely a civil wrong.

• Dangerousness: The act must be objectively dangerous, meaning that a reasonable person would recognize that it carries a risk of some harm to another person.

• Causation: The unlawful and dangerous act must be the cause of the death.

2.2. Gross Negligence Manslaughter

Gross negligence manslaughter occurs when a person's conduct falls far below the standard of care expected of a reasonable person, and this negligence results in the death of another person.

The key elements of gross negligence manslaughter are:

• Duty of care: The accused must have owed a duty of care to the deceased.

• Breach of duty: The accused must have breached that duty of care.

• Gross negligence: The breach of duty must have been so serious as to amount to gross negligence.

• Causation: The gross negligence must have caused the death.

3. Application to a Driver Hitting a Pedestrian

In the context of a driver hitting a pedestrian, the question of whether manslaughter charges are applicable will depend on the specific circumstances of the incident. The prosecution would need to prove beyond a reasonable doubt that the driver's actions met the elements of either unlawful act manslaughter or gross negligence manslaughter.

Unlawful Act Manslaughter:

• Unlawful act: The driver's actions could constitute an unlawful act if they were driving recklessly or dangerously, such as exceeding the speed limit, driving under the influence of alcohol or drugs, or failing to obey traffic signals.

• Dangerousness: The act of driving recklessly or dangerously would be considered dangerous as it carries a risk of harm to others, including pedestrians.

• Causation: The prosecution would need to prove that the driver's unlawful and dangerous act directly caused the pedestrian's death.

Gross Negligence Manslaughter:

• Duty of care: Drivers have a duty of care to all road users, including pedestrians.

• Breach of duty: The driver would have breached their duty of care if they failed to exercise reasonable care and skill while driving, such as driving at an excessive speed, failing to keep a proper lookout, or failing to take appropriate action to avoid a collision.

• Gross negligence: The prosecution would need to prove that the driver's negligence was so serious as to amount to gross negligence, meaning that it was a "wanton disregard for the safety of others."

• Causation: The prosecution would need to prove that the driver's gross negligence directly caused the pedestrian's death.

4. Conclusion

In conclusion, a driver who hits a pedestrian can be charged with manslaughter in Kenya if the prosecution can prove beyond a reasonable doubt that the driver's actions met the elements of either unlawful act manslaughter or gross negligence manslaughter. The specific circumstances of the incident, including the driver's actions, the pedestrian's actions, and the surrounding environment, will be crucial in determining whether manslaughter charges are applicable.