Rex v Kabokia (Cr. App. 1/1932,,) [1932] EACA 21 (1 January 1932)

## APPELLATE CRIMINAL.

Before LUCIE-SMITH, J. and GAMBLE, Acting J.

## $\operatorname{REX}$

(Respondent) (Original Prosecutor)

$\boldsymbol{v}.$

## MZEE WA KABOKIA

(Appellant) (Original Accused).

## Cr. App. 1/1932.

Exclusive opportunity " and general conduct of accused person—Circumstantial evidence.

$Held$ (24-3-32): That although evidence was purely circumstantial<br>and "exclusive opportunity" not proved, the trial Magistrate<br>was justified in taking into consideration the demeanour of<br>accused and witnesses and so transl certainty of guilt as would warrant conviction.

Branigan, Acting Crown Counsel, for Crown.

Finch for Appellant.

Finch submitted there was no evidence against appellant of exclusive opportunity. Relied on $\text{Re} \dot{x}$ v. Walker and another, 6 Cox's Cr. App. 310.

Branigan referred to head-note of $\text{Rev } v$ . Walker (supra) and submitted that case was not on all fours with present facts. Quoted 1908 Cr. App. R. p. 111, Rex v. Lovett and another as to value of circumstantial evidence.

JUDGMENT.—This is an appeal from a conviction and sentence by the learned Resident Magistrate, Kisumu.

The case put forward by the Crown is purely circumstantial and we are unable to agree that "exclusive opportunity" has been proved in respect of the accused.

The learned Magistrate has obviously taken the greatest care in this case and had the opportunity of seeing the witnesses and studying their demeanour. He has even gone to the extent of recording the very good impression which one of the witnesses made on him.

A careful perusal of the record may be said to only convey a sense of very deep suspicion against the accused, but it is not difficult to realize that the actual hearing of the case and the seeing of the witnesses may easily have transformed such deep suspicion into such a degree of certainty of guilt as would warrant the conviction.

In view of the decision in Rex v. Lovett and another, 1 C. A. R, p. 111, we are of opinion that there was sufficient evidence before the learned Magistrate to justify him in leaving the case to himself as jury to decide, and we cannot say that his finding as a jury is unreasonable or against the weight of the evidence.

The appeal must be dismissed and the conviction and sentence herein must be affirmed.

$\, \cdot \,$