Rex v Kachilichili (Criminal Appeal No. 157 of 1946) [1946] EACA 62 (1 January 1946)

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent

ν.

## KIBERENGE s/o KACHILICHILI, Appellant Criminal Appeal No. 157 of 1946

Criminal Law—Unlawful possession of stock in a proclaimed district—The Stock and Produce Theft (Levy of Fines) Ordinance, 1933, Section 10-Constituents of offence—Burden of proof.

The appellant was found in possession of five head of cattle in a proclaimed district and because he had neither a veterinary pass nor market receipts for them he was called upon to justify his possession. He failed to do so and was convicted of unlawful possession of stock in a proclaimed district.

He appealed.

Section 10 (1) of the Stock and Produce Theft (Levy of Fines) Ordinance. 1933, provides: -

"If any stock is found in the possession or on the premises of any person in a proclaimed district in circumstances which may reasonably lead to the belief that such stock has been stolen, such person shall be deemed to have stolen the same and shall, unless he proves affirmatively (the onus being on him) that the possession was lawful, be liable to the penalties prescribed for theft."

Held $(17-7-46)$ —(1) Before the onus can be placed on a person found in possession of any stock in a proclaimed district to prove affirmatively that such possession is lawful the<br>prosecution must first show that the circumstances are such as to reasonably lead to the belief that the stock has been stolen.

(2) Mere suspicion is not sufficient to shift the onus on an accused person to justify his possession.

Appeal allowed.

Rex v. Cheruiyot arap Nyamwibi, XIX K. L. R. 37 referred to.

Appellant absent, unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—Before the onus can be placed on a person found in possession of any stock in a proclaimed district to prove affirmatively that such possession was lawful the prosecution must first show that the circumstances of the possession were such as to reasonably lead to the belief that the stock had been stolen.

The cattle in this case were not proved to have been stolen and the Magistrate inferred from the absence of a veterinary pass and market receipts that the appellant possessed them "in suspicious circumstances".

The absence of those documents might raise some suspicion, but as was decided in Rex v. Cheruiyot arap Nyamwibi, 19 K. L. R. 37, "the circumstances in which the animal was found must give rise to more than suspicion; the circumstances must be such as may reasonably lead to the belief that the ox has been stolen". Had the Magistrate in this case correctly directed himself as to the law we doubt if he would inevitably have come to the same conclusion.

Indeed we do not think that on the facts of this case the circumstances of the possession can reasonably lead to the belief that the cattle in question had been stolen. No case was, therefore, made out against the appellant, and he was wrongly called upon to prove that his possession was lawful. The Magistrate's attention is drawn to his having taken into consideration certain facts said to be within the knowledge of the court (see the opening passage of his judgment). Such facts must be supported by evidence before being considered as they are not within the category of facts of which a court is entitled to take judicial notice.

Appeal allowed. Conviction and sentence quashed. Accused ordered to be released and the fine, if paid, ordered to be refunded. The cattle exhibited in the case are directed to be returned whence they came.