Rex v Kichuhi (Criminal Appeal No. 277 of 1947) [1948] EACA 15 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

> REX, Respondent (Original Prosecutor) $\mathbf{v}$ . MACHARIA KICHUHI, Appellant (Original Accused)

## Criminal Appeal No. 277 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal law and procedure—Section 360 Criminal Procedure Code—Consolidation of appeals.

The relevant facts appear from the judgment.

Held $(21-1-48)$ .—(1) When the appeals of two appellants are consolidated nevertheless the case of each appellant is separately considered on its own merits.

(2) Section 360, Kenya Criminal Procedure Code, gives a right of appeal to the<br>Court of Appeal for Eastern Africa on questions of law only. The Court of Appeal for Eastern Africa will only accept the facts as found by the Supreme Court.

D. V. Kapila for the Appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—This is a second appeal from the Court of the Resident Magistrate, Nairobi. In the Magistrate's-Court the appellant, who is a taxi-driver, was, along with three other persons. convicted on three counts of theft. The present appellant and one of the other convicted persons appealed to the Supreme Court. The two appeals were consolidated and heard by two Judges sitting together. As regards the appellant the Supreme Court quashed the convictions for theft and the sentences of two years' imprisonment with hard labour on each of three counts which the Magistrate had directed to be consecutive and substituted one conviction for receiving stolen property knowing the same to have been stolen with one sentence of three years' imprisonment with hard labour and an order for police supervision for five years after the expiry of the sentence. As regards the other appellant in the Supreme Court, the two Judges disagreed and his appeal was ordered to be reheard by three Judges. The present appellant appeals to this-Court from the judgment of the Supreme Court.

At this stage it will be convenient to deal with the fourth ground of thisappeal which is in the following terms:-

"The appeals of the appellant and a co-accused having been consolidated, there was no provision in law for the appeals to be separated and judgment to be delivered in the case of the appellant before the rehearing: and the decision of the case of the co-accused."

No authority was quoted by appellant's advocate in support of this ground of appeal and we know of none. When the appeals of two appellants are consolidated that does not mean that the case of each appellant is not to be separately considered on its own merits by the Appeal Court. On the contrary each appellant's case must be separately considered by the Appeal Court. The Appeal Court having considered the case of the present appellant came to the definite decision and gave judgment in accordance with that decision. For the reason that the members of the Court disagreed about the other appellant's appeal it had to be referred to a bench of three Judges for decision. We can find no objection whatever to that course in the Criminal Procedure Code, in the authorities, or indeed in common sense, and we find no substance in the fourth. ground of appeal.

As to the first ground of appeal it is true that the finding of the Supreme Court that the appellant was guilty of receiving stolen property knowing it to have been stolen appears to be contrary to the finding of the Magistrate expressed in paragraph 23 of his judgment in the words: "I don't think fourth accused" (the present appellant) "'received' the generators and horns". In our view, however, the Magistrate by these words was expressing an opinion on the law applicable to the facts not making a finding of fact. The Magistrate came to the conclusion that the facts established in law a case of theft against this appellant and that conclusion of course made it logically impossible for the Magistrate to convict of receiving. It was therefore competent for the Supreme Court to hold as they did that the Magistrate in convicting of theft instead of receiving had made a mistake in law which must be corrected and the Appeal Court made the correction which it thought right.

The next question is whether, on the facts as finally found by the Supreme Court, that Court was right in convicting the appellant of receiving. It has been suggested by the appellant's advocate that this Court on a second appeal may go into the facts and is not bound by the findings of fact of the Court below. We do not agree. There is no right of appeal to this Court except as provided by legislation and that legislation is section 360 of the Criminal Procedure Code which is in the following terms: $-$

"360. Any party to proceedings under this part, other than proceedings by way of revision under section 361 to 366 may appeal to the Court of Appeal for Eastern Africa on a matter of law (not including severity of sentence) but not on a matter of fact."

We reject as untenable the suggestion that an appellant can drive a coach and six through that definitely and deliberately restrictive section by coming to this Court ostensibly on a ground of law and then getting this Court to deal with questions of fact. We are satisfied that we must accept the facts as found by the Supreme Court.

Grounds 2 and 3 of this appeal attack the conclusion at which the Supreme Court arrived on the facts found by that Court. In dealing with these grounds we find it necessary first to define the legal position of the stolen property while it was locked in the boot of the appellant's taxi and the key of the boot was in the appellant's possession. Our view is that the property had been received and retained by the appellant subject, of course, to the right of the passenger from whom the appellant received it to demand its return. In our view the position was the same as if the goods had been deposited in a warehouse, namely, that they were received and retained by the warehouse-keeper subject to the depositor's right to demand the return of goods. The only question then under section 315 (1) of the Penal Code, in the case either of the taxi-driver or the warehouse-keeper, is, whether at the time the goods were received or during the period of retention, the taxi-driver or the warehouse-keeper knew or had reason to believe that the goods were stolen. In either case such knowledge or reason to believe would justify a conviction under section 315 (1) of the Penal Code.

That brings us to the next question which is whether, on the facts found, the Supreme Court were justified in holding that the appellant, at the time he received the goods or during the period of retention, knew or had reason to believe that the goods were stolen.

The facts which the Supreme Court found proved do not touch the actual receiving of the goods by the appellant. There is no evidence as to that except that of the appellant which, if accepted, exonerates the appellant. The facts found by the Supreme Court relate only to the conduct of the appellant subsequent to the receiving when stopped by the police. From that conduct alone the Supreme Court has inferred that the appellant at the time he received the goods must have known or had reason to believe that they were stolen. The final question is whether that inference was justified.

We have given anxious consideration to this final and vital question and in the result we have come to the conclusion that from the conduct of the appellant it can be fairly and justly inferred that the appellant at the time the police stopped him was in fact retaining in the locked boot of his taxi goods which he knew or had reason to believe were stolen. Taking that view of the law and the facts in the case we substitute the word "retaining" for the word "receiving" in the material part of the Supreme Court judgment and otherwise dismiss the appeal. The sentence imposed by the Supreme Court stands.

Before leaving the case we may observe that it would possibly have been strictly more correct if the Supreme Court, with convictions on three counts of theft under appeal before it, had substituted three corresponding convictions of receiving or retaining and imposed three sentences. We consider, however, it is unnecessary to deal with that question which is purely academic and is not raised in the Memorandum of Appeal. Having regard to the previous record of the appellant we are satisfied that substantial justice is done by the one conviction and the one sentence.