Rex v Muthoni (Criminal Appeal No. 357 of 1948) [1948] EACA 83 (1 January 1948)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J.

#### REX, Respondent (Original Prosecutor).

$\nu$ .

# JOSEPHINE MUTHONI w/o ISHMAEL ITHONGO, Appellant (Original

Accused)

## Criminal Appeal No. 357 of 1948

Criminal law—Liquor Ordinance, 1934—Unlawful possession of liquor, section 41 (2)—Selling liquor without a licence, section 44—Inference that sale took place, section 47 (1)—Factors establishing prima facie evidence of sale, section 48—Onus of proof.

The appellant was convicted under the Liquor Ordinance of selling intoxicating liquor without a licence, and of being in unlawful possession of intoxicating liquor. On the first count there was no direct evidence that a sale took place but the trial Magistrate inferred from the general circumstances that such was the case. The facts appear sufficiently from the judgment below. On appeal

Held $(1-10-48)$ .—(1) That a room in a dwelling-house with a table, some chairs and a bench and a few glasses on a table from which the persons sitting in the room were drinking is not a place "containing bottles, casks or vessels so displayed as to induce a reasonable<br>belief that liquor is sold or served therein" following section 48 of the Ordinance.

(2) That to prove that an unlawful sale took place under section 44 the onus is on the prosecution; it is necessary to adduce positive evidence either direct or circumstantial from which a sale can be reasonably inferred.

Appeal on the first count allowed.

Appeal from conviction for unlawful possession dismissed.

Morgan for the Appellant.

Modi for the Crown.

JUDGMENT.—The appellant, a women named Josephine Muthoni wife of Ishmael Ithongo, was convicted by the Resident Magistrate, Nairobi, of two offences against the Liquor Ordinance, 1934. On the first count she was charged with selling intoxicating liquor without a licence contrary to section 44 of the Ordinance and on the second count with being in possession of intoxicating liquor contrary to section 41 $(2)$ . As I have already indicated the evidence fully supports the conviction on the second count and the appeal so far as it relates to that count is dismissed. On the first count there was no direct evidence whatsoever that a sale of intoxicating liquor had taken place but the learned Magistrate felt able from the general circumstances to infer that such was the case.

The sole point for my consideration is whether he was reasonably justified in so doing. In order to determine this question it is necessary to set out the facts in some detail. On the evening in question about 9.30 p.m. a police inspector visited the appellant's house where he found four people sitting round a table in a room drinking. One of the glasses contained what appeared to be brandy and the others appeared to have contained beer. The appellant was standing near a cupboard and the only other furniture in the room besides the table were some chairs and a long bench. The inspector stated that the general appearance suggested a bar to him, but he seems to have drawn that inference principally from the fact that four persons were seated at a table with glasses in front of them and the appellant herself was standing. In an adjoining room were found a very large number of empty beer bottles, six full bottles of beer, some brandy in a bottle and two empty brandy bottles. As the learned Magistrate correctly directed himself it was not essential for the Prosecution to prove that any money had actually passed in order to establish a sale. Under section 47 (1) of the Ordinance a Court can convict if satisfied that a transaction in the nature of a sale actually took place and section 48 sets out some factors which when found may be deemed to be prima facie evidence of an unlawful sale. These may not be exhaustive but they are of a kind which quite clearly suggest either that the house or premises is a place where the public expect to be able to buy intoxicating liquor or where there is liquor concealed or more liquor than is reasonably required for the person residing on the premises is found. None of the factors set out in this section were in fact present in the instant case unless it can be said that the inspector's impression that he was in a bar can be said to constitute proof that the house of the appellant was fitted with a bar. It seems to me to fall far short of it. A room in a dwelling house with a table, some chairs and a bench and a few glasses on a table from which the persons sitting in the room were drinking is surely not a place "containing bottles, casks or vessels, so displayed as to induce a reasonable belief that liquor is sold or served therein" to quote the wording of section 48 which is the draftsman's attempt to explain what he means by a bar. The operative words are "so displayed". The only actual liquor found on the premises besides a very small quantity of brandy was six full bottles of beer. It would be quite impossible to hold and 1 do not think that the learned Magistrate has done so that this amount constituted an unreasonable amount for the two occupiers of the premises. What the Magistrate appears to have done is to accept as prima facie evidence of an unlawful sale the fact that a large number of empty beer bottles were found in another room. As has been already pointed out this factor is not one of those mentioned in section 48 and for the good reason I suspect that it provides too slender a basis taken by itself upon which a Court could reasonably be satisfied that a transaction in the nature of a sale had taken place. A person may keep a large number of empty bottles which may have contained liquor which has been lawfully consumed by himself or his guests long after their contents have been emptied or he may have a dozen and one reasons for keeping empty bottles. It is a big jump to infer that because he has empty bottles he has sold the contents to all and sundry. In point of fact the appellant's husband had an explanation of the presence in his house of so many empty bottles. It appeared that he had been granted a beer licence from 1st July and he was collecting bottles because he knew that as an African the brewery would be unlikely to supply him with any beer unless he surrendered bottle for bottle. This does not strike the Court as an explanation so unreasonable as to demand rejection.

The appellant's defence was that the persons sitting at her table were her guests and that she had supplied them with beer as her guests. The Magistrate disbelieved her but even if he thought she was lying it is not enough for a conviction unless the Prosecution were able also to adduce positive evidence either direct or circumstantial from which a sale could reasonably be inferred. In the opinion of this Court the circumstantial evidence falls far short of that. It is not enough to warrant a conviction under the Ordinance that a Magistrate should consider it more likely that a sale took place than that it did not. The appellant was charged with an unlawful sale and it was a necessary ingredient of that charge to prove a sale. The onus to do that lay upon the prosecution and it was not discharged. The appeal against the conviction on the first count is accordingly allowed and the conviction quashed. The fine imposed in respect of the conviction on this count, if paid, to be remitted.