Rex v Mugut (Cr. R. 44/1933.) [1933] EACA 26 (1 January 1933)

## CRIMINAL REVISION.

## Before THOMAS, J., and GAMBLE, Ag. J.

## REX (Original Complainant)

11.

## CHEMWA ARAP MUGUT (Original Accused). Cr. R. $44/1933$ .

Penal Code, section 361—Definition of Attempt—Section 362—

Attempt to commit a felony or misdemeanour.

$Held$ (25-3-33).—That the admissible evidence against the accused went no further than to show that he had started forth with others armed with spears and clubs, and that this did not constitute an attempt to steal. Intention distinguished from attempt under the Penal Code.

A. D. A. MacGregor, K. C., Attorney General, for Crown.

Accused absent, unrepresented.

The Attorney General did not support the conviction. The charge was entering Kajulu Location with intent to steal. That is not an offence in law. When they arrived there, the villagers were awake and making a noise, and their intention did not become an attempt. At what stage does intention become attempt? Although the plea was an admission of the intention to steal the accused were not warned as to the legal meaning of the word "attempt". The plea therefore was in fact one of not guilty.

THOMAS, J.—The charge in this case was one of entering the Kajulu Location, Central Kavirondo, during the month of January, about the 5th, with intent to steal. Section 362, Penal Code, and section 255, Penal Code.

That charge might have been better expressed, but it would seem to be sufficient to charge the accused with an attempt to steal.

The first accused pleaded as follows: "I admit I went into Kajulu to steal at night, but the village whither I went was aroused, and I did not steal anything."

The second accused said: "I did not go to steal."

The admissible evidence against the second accused went no further than to show that he had started forth with others, armed with spears and clubs. There would seem to have been an uproar cr alarm and a pursuit.

Such evidence, it is needless to say, is insufficient to support a conviction. The conviction against the second accused is accordingly quashed, and he is ordered to be set at liberty in respect of this conviction.

The case against the first accused is somewhat different in view of his plea. He has admitted the intention to steal, and the entering of a location for this purpose. The accused is a Nandi, and I understand that the Nandi are not allowed out of their cwn location without a pass. The case would therefore seem to be rather different from the ordinary case of inspection of premises with a view to stealing.

The point is possibly a very fine one, and although I am doubtful that it is quite covered by the case of Rex v. Kanjeri and Karombi, E. A. L. R. Vol. 6, p. 69, I have come to the conclusion that it should not be pressed against the accused, who is not represented.

In that the conviction against him has been confirmed, I would suggest that he should be treated similarly to the other accused and be granted a free pardon, should the legal advisers of the Crown so recommend.

GAMBLE, Ag. J.-I agree.