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section 47 of the traffic act kenya

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Section 47 of the Traffic Act, Cap 403 of the Laws of Kenya, deals with the offense of driving a motor vehicle while under the influence of alcohol or drugs.

1. Introduction

The Traffic Act, Cap 403 of the Laws of Kenya, is a comprehensive piece of legislation that governs road traffic and vehicles in Kenya. It aims to promote road safety by establishing a legal framework for vehicle registration, driver licensing, traffic rules, and offenses. Section 47 of the Traffic Act is a crucial provision that addresses the serious issue of drunk driving, which is a major contributor to road accidents and fatalities in Kenya.

2. Section 47 of the Traffic Act

Section 47 of the Traffic Act states:

47. Driving under the influence of drink or drugs.—(1) Any person who, when driving or attempting to drive a motor vehicle on a road, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding two years or to a fine not exceeding one hundred thousand shillings or to both.

This section criminalizes the act of driving or attempting to drive a motor vehicle while under the influence of alcohol or drugs to the extent that the driver is incapable of having proper control of the vehicle. The offense is punishable by imprisonment for a term not exceeding two years, a fine not exceeding one hundred thousand shillings, or both.

3. Elements of the Offense

To establish a violation of Section 47 of the Traffic Act, the prosecution must prove the following elements beyond a reasonable doubt:

The accused was driving or attempting to drive a motor vehicle on a road: This element requires the prosecution to demonstrate that the accused was operating or attempting to operate a motor vehicle on a public road.
The accused was under the influence of drink or a drug: This element requires the prosecution to prove that the accused was intoxicated by alcohol or drugs. This can be established through various means, such as:
- Observation of the accused's behavior: Police officers may observe the accused's behavior, such as slurred speech, unsteady gait, bloodshot eyes, or erratic driving.
- Breathalyzer test: A breathalyzer test can measure the amount of alcohol in the accused's breath.
- Blood or urine test: A blood or urine test can determine the presence and concentration of alcohol or drugs in the accused's system.
The accused was incapable of having proper control of the vehicle: This element requires the prosecution to demonstrate that the accused's intoxication impaired their ability to safely operate the motor vehicle. This can be established through evidence of the accused's driving behavior, such as swerving, speeding, or failing to obey traffic signals.

4. Defenses to the Offense

While the prosecution must prove all elements of the offense beyond a reasonable doubt, the accused may raise certain defenses to challenge the charges. Some common defenses include:

Lack of intoxication: The accused may argue that they were not intoxicated at the time of the alleged offense. This defense may be supported by evidence such as witness testimony, video footage, or medical records.
Medical condition: The accused may argue that their behavior was caused by a medical condition, such as a seizure or diabetic episode, rather than intoxication. This defense would require medical evidence to support the claim.
Improper administration of breathalyzer test: The accused may argue that the breathalyzer test was administered improperly, leading to an inaccurate result. This defense would require evidence of procedural errors or equipment malfunction.
Entrapment: The accused may argue that they were entrapped by law enforcement officers, meaning that they were induced to commit the offense by the police. This defense would require evidence that the police instigated the offense.

5. Case Laws

Several case laws in Kenya have interpreted and applied Section 47 of the Traffic Act. These cases provide valuable insights into the legal principles governing the offense of driving under the influence.

Republic v. Ngotho (Criminal Appeal E033 of 2022) [2023] KEHC 23755 (KLR): In this case, the Court of Appeal upheld the conviction of the accused for driving under the influence of alcohol. The court found that the prosecution had presented sufficient evidence to prove that the accused was intoxicated and incapable of having proper control of the vehicle. (Source: http://kenyalaw.org/caselaw/cases/view/270867/index.php ↗)
Lwangu v. Republic (Criminal (Traffic) Appeal E018 of 2021) [2022] KEHC 10074 (KLR): In this case, the Court of Appeal overturned the conviction of the accused for driving under the influence of alcohol. The court found that the prosecution had failed to prove that the accused was intoxicated beyond a reasonable doubt. The court also noted that the breathalyzer test used in this case was not properly calibrated. (Source: http://kenyalaw.org/caselaw/cases/view/235460/index.html ↗)
Wawira v. Republic (Criminal Appeal 47 of 2019) [2023] KEHC 24055 (KLR): In this case, the Court of Appeal upheld the conviction of the accused for driving under the influence of alcohol. The court found that the prosecution had presented sufficient evidence to prove that the accused was intoxicated and incapable of having proper control of the vehicle. The court also noted that the accused had admitted to consuming alcohol before driving. (Source: http://kenyalaw.org/caselaw/cases/view/278096/index.html ↗)

6. Consequences of Conviction

A conviction for driving under the influence of alcohol or drugs under Section 47 of the Traffic Act can have serious consequences for the accused, including:

Imprisonment: The accused may be sentenced to imprisonment for a term not exceeding two years.
Fine: The accused may be fined up to one hundred thousand shillings.
Suspension or revocation of driving license: The accused's driving license may be suspended or revoked for a specified period.
Criminal record: A conviction for driving under the influence will be recorded on the accused's criminal record, which may affect their future employment or travel opportunities.
Increased insurance premiums: Insurance companies may increase the accused's insurance premiums due to the conviction.
Civil liability: The accused may be held liable for any damages or injuries caused by their driving while intoxicated.

7. Importance of Road Safety

Driving under the influence of alcohol or drugs is a serious offense that poses a significant threat to road safety. It impairs judgment, reaction time, and coordination, making it extremely dangerous to operate a motor vehicle. The consequences of drunk driving can be devastating, resulting in accidents, injuries, and even fatalities.

8. Conclusion

Section 47 of the Traffic Act is a crucial provision that aims to deter drunk driving and protect the public from the dangers it poses. The offense is punishable by severe penalties, and the courts have consistently upheld convictions in cases where the prosecution has presented sufficient evidence. It is essential for all drivers to understand the risks associated with driving under the influence and to make responsible choices to ensure their safety and the safety of others on the road.

9. TLDR

Section 47 of the Traffic Act in Kenya criminalizes driving under the influence of alcohol or drugs. The offense is punishable by imprisonment, fines, and suspension or revocation of the driving license. The prosecution must prove beyond a reasonable doubt that the accused was driving while intoxicated and incapable of having proper control of the vehicle. The accused may raise defenses such as lack of intoxication, medical condition, or improper administration of breathalyzer tests.

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