Rex v Mohamed and Another (Criminal Appeals Nos. 195 and 196 of 1942) [1943] EACA 45 (1 January 1943)

## APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J., AND LUCIE-SMITH, J.

## REX. Respondent

$\mathbf{v}$

## (1) FATUMA BINTI MOHAMED, (2) ASIA BINTI ATHMAN, Appellants<sup>(3)</sup>

## Criminal Appeals Nos. 195 and 196 of 1942

Stealing—Section 273 (e) Penal Code—Defence—Claim of right—Property of deceased emancipated slave.

*inamdar* for appellants.

Dennison, Crown Counsel, for the Crown.

JUDGMENT (5-1-43).—On the finding of fact by the learned Liwali the accused persons, in these two appeals, may be said to have acted under a claim of right in taking possession of the property of their emancipated slave. A claim of right to constitute a successful answer to a criminal charge need only be an honest assertion of what the person putting it forward believes to be a lawful claim and such claim may be unfounded in law or in fact (Rex y, Bernhard, 3) Cox, Part 1. p. 61). There are besides in these two cases errors or omissions of procedure which possibly, did they stand alone, would be insufficient to upset the convictions. The learned Liwali is particularly referred to paragraph 5 of the Circular Letter to Magistrates of Muslim Subordinate Courts in the Coast Province dated 20th September, 1941, which does not appear to have been complied with. And with regard to the Circular as a whole should he be in doubt as to the meaning of any of the paragraphs he should communicate his doubts to the Deputy Registrar, Mombasa, for solution. The appeals are allowed and the convictions and sentences are quashed. The appellants to be released forthwith. The parties are left to such civil action as they may be advised to take. $\mathcal{L}^{\mathcal{A}}(\mathcal{L}^{\mathcal{A}}(\mathcal{L}^{\mathcal{A}})) = \mathcal{L}^{\mathcal{A}}(\mathcal{L}^{\mathcal{A}}(\mathcal{L}^{\mathcal{A}}))$