Professor says Kenya crash driver right to keep quiet

Caitlin Dickson, 19, was one of four people to die in the crash. Photo / Christine Cornege

A criminal law expert says he would have advised a former Bethlehem College student to keep quiet about his part in a tragic bus crash in Kenya until arriving home.

The Tauranga school has revealed that 18-year-old David Fellows was driving the vehicle carrying 16 group members along the Nairobi-Murang'a highway when it rolled into a ditch nearly two weeks ago.

New Zealanders Caitlin Dickson, 19, and Brian and Grace Johnston and the college group's Kenyan driver, Christopher Mmata, were killed. Mr Mmata was initially thought to be at the wheel

That the teenager took part in a deliberate cover-up until he confessed after arriving back home, allowing Mr Mmata to be reported as the driver until then, has sparked controversy and criticism.

But University of Auckland associate professor of law Bill Hodge told the Herald he would have told him to do just that.

"If I'd been advising the young man I might have said, 'look, just get on the plane with your mates and sort things out, get legal advice, don't lie to anybody but get out of there for the time being'," he said.

"Because otherwise you might find yourself in a holding tank with 150 Kenyans and no access to legal advice."

Professor Hodge had researched Kenyan law and said it was still possible Mr Fellows could be extradited back to that country.

There was provision under Kenyan law for a manslaughter charge similar to New Zealand's and one of careless use (of a vehicle) causing death.

"More significantly, and of greater intensity, there's a perverting the course of justice - I don't know whether there would be a factually based charge but he may be exposed to that as well."

It was unlikely Mr Fellows would be extradited on a careless use charge, but it was possible a Kenyan prosecutor might try to "make a statement" over treating locals and foreigners equally, he said.

What exactly happened in the aftermath of the crash remains unclear, with the college claiming the school's liaison representative, Calvine Ominde, told Mr Fellows to keep quiet about the driver swap until after the teen had returned to New Zealand.

But Mr Ominde has denied this, telling media he did not know there had been a driver swap and did not understand "why I'm being blamed" for a cover-up.

College principal Eoin Crosbie said a small number of people had witnessed the change in driver.

A Facebook post by Kerri Tilby Price, a teacher on the trip who was travelling in the car ahead of the minibus, confirmed there were confusing reports about what happened because of some students having no memory of the accident and some remembering only parts.

While college leaders say they were told of the driver swap at the weekend, the Ministry of Foreign Affairs was advised on Monday, about the same time the police were told.

Foreign Affairs Minister Murray McCully said yesterday that the Government was waiting to see whether Kenyan authorities would seek the extradition of Mr Fellows.

"It would be a matter for the New Zealand authorities to consider when they receive a request." additional reporting APNZ