Kimani v Reginam (Criminal Appeal No. 456 of 1953) [1955] EACA 317 (1 January 1955)

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## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President). and BRIGGS, Justice of Appeal.

## MAINA s/o KIMANI, Appellant (Original Accused)

REGINAM, Respondent

Criminal Appeal No. 456 of 1953

(Appeal from decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Sherrin, Ag. J.)

Possession—Joint Possession—Penal Code, section 23.

The appellant was convicted of being in unlawful possession of a firearm contrary to regulation $8A(1)(a)$ of the Emergency Regulations. He admitted that he was in company with a man whom he knew to be carrying a pistol and who produced and fired it.

In arriving at a finding that the appellant was in joint possession of the pistol the trial Judge made use of section 23 of the Penal Code which provides: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

It was held in $R$ . $v$ . Thomson that where several persons were found out. together by night for the common purpose of housebreaking, and only one of them was in physical possession of housebreaking implements, all the other members of the party were, in law, in possession of implements of housebreaking, because the possession by one was the possession by all.

Held (12-1-54).—Following R. v. Thomson, the accused was in joint possession of the pistol. Appeal dismissed.

Case referred to: R. v. Thomson, 11 Cox's C. C. 362.

Appellant present, unrepresented.

Le Gallais for respondent.

JUDGMENT (delivered by Nihill (President)).—The appellant was convicted by the Supreme Court sitting in Emergency Assize at Nyeri of being in possession of a firearm and sentenced to death.

The facts as found by the learned trial Judge amount to these. The appellant was walking with two other men when they were met by a police patrol. One of the men who was walking behind the appellant who was leading the three men, produced a pistol and fired it. This man was then killed by the patrol and a little later the appellant surrendered; the third man ran away. The dead man was dressed in a semi-military uniform with flashes on his shoulders bearing the letters "K. A.1.", and there was evidence by a European Police Inspector that he had seen similar flashes on the bodies of dead Mau Mau terrorists. Shortly after the incident a Kikuyu sword in a red sheath was picked up near the spot where the first appellant surrendered. The learned Judge thought it highly probable that this weapon had been thrown away by the appellant before he surrendered. We

might not be prepared to go so far as this but we think it is at least reasonable to infer that it was thrown away by one of the party when they saw the patrol. In a statement made by the appellant when he was charged and to which no objection was taken at the trial by his advocate, he admitted that he was in company with the man who produced the pistol and fired it, and that he knew that he was carrying the pistol in his pocket.

The one point which we have had to consider on this appeal is whether on these facts the learned trial Judge was right in law in making use of section 23 of the Penal Code so as to make it possible for him to find this appellant in joint possession of the pistol. Mr. Le Gallais for the Crown, in supporting the conviction, has cited the English case of $R$ . v. Thomson, 11 Cox's Criminal Cases, page 362, in which the Court of Criminal Appeal held that where several persons were found out together by night for the common purpose of housebreaking and only one of them was in physical possession of housebreaking implements, all the other members of the party were in law in possession of implements of housebreaking without lawful excuse, because in such a case the possession of one was the possession of all. On the facts as found by the learned trial Judge in this case we find nothing to distinguish it in principle from the circumstances set out in $R$ . $v$ . Thomson, for on the evidence which he accepted he was clearly entitled to infer that this appellant was associated with the person who had the pistol for the common purpose of Mau Mau terrorism, and there was the appellant's own admission that he knew that his confederate was carrying a pistol. It can further be inferred that he knew that the pistol was being carried for the furtherance of the common purpose.

In the light of all these circumstances the final inference is irresistible that the possession of the pistol must have been without lawful authority or excuse and that the appellant must have known this. The appeal is accordingly dismissed.