Rex v Nyamwibi (Confirmation Case No. 120 of 1940) [1940] EACA 40 (1 January 1940)

## CRIMINAL CONFIRMATION

BEFORE SIR JOSEPH SHERIDAN, C. J., THACKER, J. AND BARTLEY, J.

## REX. Prosecutor

$\nu$

## CHERUIYOT ARAP NYAMWIBI, Accused

## Confirmation Case No. 120 of 1940

Criminal law-Stock and Produce Theft (Levy of Fines) Ordinance, 1933, section 10—Unlawful possession of stock in a proclaimed area—Elements of offence.

Accused was convicted on a charge which read as follows: -

"Un'awful possession of one ox in proclaimed area contrary to section 10 of Ordinance 18/33 in that on the 1st day of December, 1939, in location 9 of the Kipsigis Reserve Sotik District, Nyanza Province you were found in unlawful possession of one ox the property of a Masai named Kiponongozi Ole Olesi, the value of the said ox being Sh. 83 you thereby committed an offence."

In convicting the accused the magistrate directed himself as follows:-

"Assuming that the accused did buy it which cannot be proved or disproved there are suspicious features" and "The fact that the headman and Police suspected the beast as soon as they saw it proves that the accused had reason to suspect it".

The other facts appear from the judgment.

$Held$ (6-3-40).—(1) That the charge did not disclose the essential ingredients of an offence against section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933, since it was an essential ingredient of this offence not only that the accused should be found in possession of stock in a proclaimed district but also in circumstances which may reasonably lead to the belief that such stock had been stolen.

(2) The finding of stock in suspicious circumstances or in circumstances which led a headman and a police constable to suspect that the stock was stolen is not a finding in the circumstances required by the section. The circumstances in which the stock is found must give rise to more than suspicion. The circumstances must be such as may reasonably lead to the belief that the stock has been stolen.

(Conviction set aside and acquittal ordered.)

Accused absent unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The charge sheet in this case reads: "Unlawful possession of one ox in proclaimed area contrary to section 10 of Ordinance No. 18/33, in that on the 1st day of December, 1939, in location 9 of the Kipsigis Reserve. Sotik District, Nyanza Province, you were found in unlawful possession of one ox the property of a Masai named Kiponongozi Ole Olesi: the value of the said ox being Sh. 80 you thereby committed an offence."

The charge as stated does not disclose the essential ingredients of an offence against section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933.

This section provides that if any stock is found in the possession of any person in a proclaimed district in circumstances which may reasonably lead to the belief that such stock has been stolen such person shall be deemed to have stolen the same and shall unless he proves affirmatively (the onus being on him) that the possession was lawful, be liable to the penalty prescribed for. theft. It is an essential ingredient of this offence not only that the accused should be found in possession of stock in a proclaimed district but also in circumstances which may reasonably lead to the belief that such stock has been stolen. It is only when these conditions are present that the accused can be put on his defence.

In this case the trial magistrate clearly did not have this essential ingredient of the offence in his mind and this is only natural as it was not set out in the charge. In his judgment he writes: -

"Assuming that accused did buy it which cannot be proved or disproved, there are suspicious features."

Again the magistrate writes:-

"The fact that the headman and Police suspected the beast as soon as they saw it proves that the accused had reason to suspect it."

The finding of an ox in suspicious circumstances or in circumstances which led a headman and a police constable to suspect the animal is a stolen one is not a finding in the circumstances required by the section. The circumstances in which the animal was found must give rise to more than suspicion; the circumstances must be such as may reasonably lead to the belief that the ox has been stolen.

At the time the ox was found in the herd of the accused it was not known that any such ox had been stolen. The police constables and a location headman found the ox. The ox had its ears cut four times and was branded with the letter P. One police constable gave evidence that both Kipsigis and Masai cut the ears of oxen as the ears of this ox were cut; the other constable said that some Kipsigis so cut their oxen, but the headman said it was unusual for Kipsigis to cut in this fashion. There can be little doubt that the real reason for the ox being seized was because it was branded with the letter P. The police constable stated "We seized the ox because of that brand." The headman also said in his evidence "We seized the ox because of the brand, I have never seen this brand before in this district.

The brand in question turned out to be one used by the Veterinary Department but the Veterinary Officer who gave evidence could only say that the brand was "probably put on by a Veterinary Officer for the purposes of identification". This officer however also gave evidence that the Veterinary Department do brand oxen with the letter P followed by a number when oxen are inoculated for pleuro-pneumonia and it is significant that before this evidence was given the accused asked the first prosecution witness the following question, "Do the Veterinary Officers brand P when inoculating for pleuro?"

The headman and one of the two constables gave the additional evidence that the ox looked like a Masai beast and the headman added, "We took the ox to Chemagel because I was sure it was a Masai beast".

The accused had told the policeman and the headman that he had bought the ox from arap Maina. This man was searched for but could not be found.

Quite apart from the possibility of the accused being prejudiced by the manner in which the charge was framed we are not satisfied that the magistrate would or must inevitably have come to the same conclusion had he rightly directed himself as to the law on the facts set out.

Learned Crown Counsel submitted that the conviction should be altered to one under section 295 (1) of the Penal Code.

We are of the opinion that the evidence does not prove that the accused knew or had reason to believe the ox to be stolen. Nor do we consider that a conviction could be had under section 295 where the only charge against the accused was under section 10 of Ordinance No. 18 of 1933.

We set aside the conviction and sentence and acquit the accused who must be released forthwith: the fine, if paid, being directed to be refunded.