11thAugust, 2015

Att: CLIENT

Dear Sir/ Madam,

LEGAL OPINION ON PASTOR MAINA NGANGAS CONTROVERSIAL TRAGIC ROAD ACCIDENT
We hereby render our opinion on the abovementioned saga that has enraged the general public over the last
two weeks and has caught the attention of the Director of Public Prosecutions (DPP) who is in the process of
preferring charges against the Man of God.
Introduction
Pastor Nganga, is a renown evangelist and proprietor of Neno Evangelism Ministry Church located at the
heart of Nairobi along Haile Selassie Avenue. On the 26th of July 2015, the Pastor is said to have been
involved in a tragic accident that claimed the life of a woman and injured two others. However, Pastor
Nganga has vehemently denied the allegations and accused the media of witch hunting tactics.
The witnesses present at the scene of the accident on the fateful day say that they indeed saw Pastor
Nganga flee from the Range Rover vehicle after colliding with a saloon car. He is said to have hopped on to
another car within his entourage and driven off. Other facts arising are that the Pastor was drunk and was
driving the car recklessly at an ungodly speed.
The DPP is yet to charge the Pastor in court, nonetheless below is a summary of various statutes and
charges likely to be preferred against him.
1.

THE CONSTITUTION OF KENYA, 2010

The Constitution is the supreme law of the land. Article 26 explicitly states that every person has
the right to life. This is an inherent right found under the Bill of Rights.

2.

PENAL CODE

Manslaughter

Section 202 and 205 of the Penal Code states that any person who by an unlawful act or
omission causes the death of another person is guilty of the felony termed manslaughter and
is liable for imprisonment for life.

Causing grievous harm

Section 234 provides that any person who unlawfully does grievous harm to another is guilty
of a felony and is liable to imprisonment for life. Grievous harm is defined under the Act as
any harm which amounts to a maim or dangerous harm, or seriously or permanently injures

health, or which is likely so to injure health, or which extends to permanent disfigurement, or

to any permanent or serious injury to any external or internal organ, membrane or sense.

Reckless and negligent acts

Section 243 and 244 state that any person who, in a manner so rash or negligent as to
endanger human life or to be likely to cause harm to any other person drives any vehicle or
rides on any public way is guilty of a misdemeanor and is liable to imprisonment for 6
months.

Destroying evidence

It is said that the Pastor had his phone records erased, an action that casts even more
suspicion into this case.
Section 116 provides that any person who, knowing that any book, document or thing of any
kind whatsoever is or may be required in evidence in a judicial proceeding, willfully removes
or destroys it or renders it illegible or undecipherable or incapable of identification, with
intent thereby to prevent it from being used in evidence, is guilty of a misdemeanor.

3.

TRAFFIC ACT

Driving under influence of drink

Section 44 of the Act states that 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 a 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 imprisonment
for a term not exceeding two years or to both. Furthermore, if the person is convicted of this
offence, he may be disqualified from holding or obtaining a licence for a period of 12 months
from the date of conviction. This is period can be prolonged at the sole discretion of the court.

Causing death by driving or obstruction

Section 46 provides that any person who causes the death of another by driving a motor vehicle
on a road recklessly or at a speed or in a manner which is dangerous to the public, or by leaving
any vehicle on a road in such a position or manner or in such a condition as to be dangerous to the
public, having regard to all the circumstances of the case, including the nature, condition and use
of the road and the amount of traffic which is actually at the time or which might reasonably be
expected to be on the road, shall be guilty of an offence and be liable to imprisonment for a term
not exceeding ten years and the court shall exercise the power of cancelling any driving licence
or provisional driving licence held by the offender and declaring the offender disqualified for
holding or obtaining a driving licence for a period of three years starting from the date of
conviction or the end of any prison sentence imposed under this section, whichever is the later.

Reckless driving

Section 47 states that any person who drives a motor vehicle on a road recklessly, or at
speed, or in a manner which is dangerous to the public, having regard to all the circumstances
of the case, including the nature, condition and use of the road and the amount of traffic which
is at the time or which might reasonably expected to be on the road, is guilty of an offence and
liable for a first conviction, to a fine not exceeding one hundred thousand shillings, or to
imprisonment for a term not exceeding two years.
Furthermore, where a person is convicted of aiding, abetting, counselling, procuring or
inciting the commission of an offence under this section, and it is proved that he was present
in the vehicle at the time, the offence of which he is convicted shall be deemed to be an offence
in connection with the driving of a motor vehicle and be disqualified from holding or
obtaining driving licence.
An alternative charge to reckless driving is found under Section 49 which is driving without
due care and attention or without reasonable consideration for other persons using the
road. Such persons shall be guilty of an offence and liable if it is a first offence, to a term of
imprisonment not exceeding one year or a fine not exceeding one hundred thousand
shillings.

Section 48 of the Act gives the court power to convict persons for reckless/dangerous driving
or causing death by driving/obstruction while on trial for manslaughter. This means that if
the Pastor is standing trial for manslaughter, then the same court has power to convict him on
traffic offences.

In conclusion, the greatest challenge for the DPP is gathering enough evidence to incriminate the Pastor.
This is because the eye-witnesses account is the only evidence that places the Pastor at the scene on the
fateful day. In spite of this, we await the final charges to be brought forward by the DPP. Lastly, it is
important to note that this is a mere forecast.

Yours sincerely,
FOR WAMBASI & COMPANY, ADVOCATES
CARL M. WAMBASI, Advocate
cwambasi@wambasiadvocates.com