Rex v Magige (Criminal Appeal No. 191 of 1942) [1943] EACA 49 (1 January 1943)

## APPELLATE CRIMINAL

# BEFORE SIR JOSEPH SHERIDAN, C. J., AND HAYDEN, J.

#### REX. Respondent

v.

# MARWA MAGIGE, Appellant (Original Accused)

## Criminal Appeal No. 191 of 1942

Criminal Law-Definition of theft-Claim of right-Mens Rea-Penal Code, Section $262(1)$ .

Appellant appealed from a conviction of theft of cattle from his brother-inlaw. Appellant admitted that he had taken the stock in question, but claimed that he was entitled to do so. The Magistrate found that the appellant was suffering from a sense of injustice, but he did not consider the question as to whether the appellant was putting forward a claim of right.

Held (25-2-43).-Following Rex v. Bernhard 31 Cox 61 that a claim of right made in good faith exists where a person honestly asserts what he believes to be a lawful claim, even though such claim may be unfounded in law or in fact. This principle could have been applied to the facts of the case and should have been considered by the trial Magistrate.

Appeal allowed.

Appellant appealed on the ground that he had acted under a claim of right made in good faith. His evidence in the lower Court was as follows:-

"I took Huhuka's cattle because he is my brother-in-law. While 1 was<br>in the Police in Nairobi, Huhuka took a case to recover my sister, who had been Huhuka's wife formerly, but whom I had married to Burui, because Huhuka would not give me more than six head of cattle. I got 18 head of cattle from Burui.

My mother agreed to my sister going back to Huhuka, and Huhuka paid over 22 head of cattle.

When I got leave, I told, my mother that I would not agree to the girl going to Huhuka unless he paid 27 or 28 head of cattle. Huhuka said he would let me have the extra six head when I got back from my work.

When I was discharged, Huhuka gave me the extra six head. Burui then took a case against me, but I had paid 10 head of cattle and was only told to refund him 8 head of cattle. The *askaris* came and took 17 head of cattle. 1 went before the Tribunal and then to the D. C., Kisii, because 9 of the 17 head of cattle were given to Huhuka.

The D. C. told me to wait for him at the Tribunal. When he came, he returned me the 9 head of cattle which had been given Huhuka, and told the latter to sue me.

Huhuka sued me for the 9 head of cattle and won his case.

I appealed, but lost my appeal in the Appeal Tribunal.

I wanted to appeal to the D. C., but had not enough money for the costs, so went home to get the extra amount. When I got home I found that the relatives of Huhuka had told him not to take the cattle, and I gathered he had dropped the case, so did not appeal again. This was in August, 1941. In May, 1942, two askaris came and attached 14 head of cattle. I went before

the Tribunal and then to the D. C. I was told to wait until the Inspection day, which I did. The D. C. gave me a chit to the Chief to return the extra cattle, but he did not do so, so I went and took eight head of cattle from Huhuka myself."

In convicting and sentencing the appellant the only comment made by the Magistrate on this evidence was: "While there can be no doubt that the accused is suffering from a sense of injustice, I do not think he has reasonable grounds for considering himself ill-used and there is certainly no excuse for his taking the law into his own hand".

Appellant in person.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—The Magistrate did not address his mind as to whether the accused in what he did not merely was suffering from a sense of injustice, but was putting forward a claim of right. In a recent case in appeal from a decision of the Liwali of Lamu we had occasion to apply the principle laid down in Rex v. Bernhard, 31 Cox (Pt. 1) 61, where it was laid down by the Court of Criminal Appeal in England that "A claim of right made in good faith exists where a person honestly asserts what he believes to be a lawful claim even though such claim may be unfounded in law or in fact". This principle was also laid down in the two earlier cases of Rex v. Hall, 3 C. & P. 409, and Reg. v. Boden, 1 C. & K. 395.

We apply the principle to the facts of this case, allow the appeal, acquit the accused and quash the conviction, the fine, if paid, being directed to be refunded. The parties aggrieved are left to any civil remedy they may have.