Rex v Kichuhi and Another (Criminal Appeal No. 236 of 1947) [1947] EACA 68 (1 January 1947)

## APPELLATE CRIMINAL

#### Before THACKER and DE LESTANG, JJ.

#### REX, Respondent (Original Prosecutor)

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# (1) MACHARIA S/O KICHUHI, (2) FAISON WAWERU S/O KIARIE, Appellants (Original Accused)

### Criminal Appeal No. 236 of 1947

Criminal law—Theft—Receiving.

The appellants were found with others within twelve hours of the commission of three thefts in a motor car in which some of the stolen property was discovered in a receptable of which the first appellant had the key. They were convicted of theft.

Held (10-9-47).—The evidence against the first appellant was insufficient to convict him of theft but sufficient to convict him of receiving. The Court was divided in respect of the second appellant.

D. V. Kapila for the Appellants.

Lowe. Crown Counsel, for the Crown.

JUDGMENT.—The two appellants, together with two other Africans, Gitau and Kiarie, were charged on three counts as follows:-

- (a) In that on the night of $3/4$ th May, 1947, the accused did steal from the car of Col. Durrant at Limuru, Central Province, one generator and two horns valued at Sh. 200, the property of the said Col. Durrant. - (b) In that on the night of $3/4$ th May, 1947, the accused did break and enter the garage of Mr. E. J. Ford, Limuru, in the Central Province, and did steal from the motor car therein a generator valued at Sh. 150, the property of the said Mr. Ford. - (c) In that on the night of 3/4th May, 1947, the accused did break and enter the garage of Mr. Peacock, Limuru, in the Central Province, and did steal from the motor car therein a generator valued at Sh. 150, the property of the said Mr. Peacock.

Gitau and Kiarie, who have not appealed, pleaded guilty to all three charges. The two appellants pleaded not guilty but were convicted on all three counts.

The proved facts are that during the night of 3rd/4th May three generators and a pair of horns were stolen from the cars of Colonel Durrant, Mr. Peacock and Mr. Ford. All three gentlemen live close to each other in Limuru. Colonel Durrant's car was in an open garage and a pair of horns and a generator were removed from it. The cars of Mr. Ford and Mr. Peacock were in locked garages which were broken into and a generator removed from each car. The thefts must have taken place at approximately three o'clock in the morning as it was about that time one of the thieves, Kiarie, was arrested close to the scene of the thefts with a generator which was proved to have come from Colonel Durrant's car. On the day following the thefts at about 11.30 a.m. the police stopped a taxi close to Gigiri Camp on the Limuru-Nairobi Road about five miles from Nairobi. It was travelling in the direction of Nairobi. In it were both appellants and Gitau, and when it was stopped Gitau and appellant Faison were crouching down on their seats as if trying to hide themselves from the police. Appellant Macharia, who is normally employed to drive this particular taxi, was driving it at the time. Appellant Faison was sitting in the front seat next to the driver, and the other occupant, Gitau, was in the back of the vehicle. The police found nothing in the body of the car and decided to search the luggage boot. Appellant Macharia said he had no key to open it, but eventually when the police threatened to break it open he produced a key and opened the boot. In it were found wrapped up in a dirty piece of sack two generators and a pair of horns which were proved to belong respectively to Messrs. Ford and Peacock and Colonel Durrant. The appellants and Gitau, together with the taxi, were taken to Tigoni Police Station where, on being searched, a screw-driver was found on appellant Faison, and a number of spanners on Gitau.

In our view those facts do not conclusively prove that appellant Macharia had participated in the breakings and thefts.

By his evidence and that of his witnesses this appellant was able to show that the Magistrate was not justified in holding that he took part in the actual thefts. The presence, however, of the stolen parts in the locked boot of his car, coupled with the denial that he had the key, are consistent only with his possession' of the stolen parts with guilty knowledge. Any person, let alone a taxi driver, receiving parts of this nature from a native must know that they have been stolen. While the evidence therefore does not support the conviction of the appellant Macharia for the offences charged, had the Magistrate correctly directed himself he could not have failed to convict him of receiving stolen property knowing the same to have been stolen.

We therefore quash the conviction and sentence of appellant Macharia and substitute a conviction for receiving stolen property knowing the same to have been stolen or unlawfully obtained contrary to section 315 (1) of the Penal Code. In view of his bad record we sentence him to three years' imprisonment with hard labour and order him to be subject to police supervision for five years on his release.

As regards appellant Faison, as my learned brother and I are not in agreement as to his appeal, an order has been made for the rehearing of his appeal by three Judges of the Supreme Court.