Gwada v Regina (Criminal Appeal No. 351 of 1952) [1952] EACA 290 (1 January 1952)

## APPELLATE CRIMINAL

## Before SIR HECTOR HEARNE, C. J., AND WINDHAM, J.

#### **WILLIAM GWADA, Appellant (Original Accused)**

### **REGINA, Respondent (Original Prosecutrix)**

### Criminal Appeal No. 351 of 1952

# (Appeal from the decision of the First Class Magistrate's Court at Kisumu— A. D. Shirreff, Esq.)

#### Stock and Produce Theft Ordinance, Cap. 206—Section 10 (1)—Faulty charge.

The appellant was charged with being in possession of stock suspected to have been stolen in that in a proclaimed district he was found in possession of a heifer which may reasonably be expected to have been stolen or unlawfully obtained. The charge was not in terms of section 10 (1) of the Ordinance which does not include the words "or unlawfully obtained". In his judgment the Magistrate referred to the evidence of a witness who considered the circumstances to be suspicious.

Held (28-8-52).—The circumstances must not merely be suspicious but must be considered by the Magistrate himself to have reasonably led to the belief that the stock found was stolen.

Appeal allowed, conviction and sentence set aside.

Appellant absent, unrepresented.

Todd, Crown Counsel, for Crown.

JUDGMENT.—The appellant was convicted under section 10 (1) of Cap. 206. He was charged with the offence "of being in possession of stock suspected to be stolen" in that "in proclaimed district he was found in possession of a heifer which may reasonably be expected to have been stolen or unlawfully obtained". The charge is not in terms of section 10 (1) which does not include the words "or unlawfully obtained" and which refers not to circumstances of mere suspicion but to "circumstances which may reasonably lead to the belief that stock (found in the possession of an accused person in a proclaimed district) has been stolen". In his judgment the Magistrate referred to the evidence of "the chief's askari" who considered "the circumstances to be suspicious" and who arrested the appellant after he had been informed that 'he was a thief'". Crown Counsel properly submitted that "the suspicions" of the chief's askari fell short of the requirements of the section. If the charge had been properly framed, the Magistrate would have realized that the circumstances must not merely be such as to have raised the suspicions of the askari, but must be such as, objectively considered by the Magistrate himself, to have reasonably led to the *belief* that the stock found in the possession of the appellant was stolen.

The conviction and sentence are set aside.