Rex v Ocharo and Another (Con. C. 68/1931.) [1931] EACA 29 (1 January 1931)

# CRIMINAL CONFIRMATION.

Before SIR JACOB BARTH, C. J.

### REX

### $\boldsymbol{v}$ .

### OKUOYO s/o OCHARO. 1.

#### $2.$ MUNGANE s/o OYUGI.

## Con. C. $68/1931$ .

The Penal Code, sections 369-71—accessories after the fact.

The Stock and Produce Theft Ordinance (Cap. 79).

$Held$ (23-3-31):—That an accessory after the fact is not liable to the statutory fine of ten times the value of the stock, because he is not guilty of the stock and Produce Theft Ordinance (Cap. 79).

ORDER.—Accused II in this case has been sentenced to six months hard labour and a fine of Sh. 600, or in default three months hard labour, on a conviction of being accessory after the fact to a stock theft under section 369, Penal Code. The evidence shows that he assisted accused I to drive the stolen stock, but there is no evidence that he received or assisted accused I in order to enable him to escape punishment (v. 369 There is therefore no evidence that accused II was an $\mathbf{P}.\mathbf{C}.)$ accessory after the fact. The basis of an offence under sections 370 and 371 Penal Code is that the person charged assisted the principal offender to escape justice.

Assuming that accused II was properly convicted of being an accessory after the fact, it would be improper to impose part payment of the statutory fine of ten times the value of the stock on him because he is not guilty of theft as defined by the Stock and Produce Theft Ordinance.

The conviction and sentence on accused II are reversed, and that accused is ordered to be discharged from custody.

The result of The conviction of accused I is affirmed. the Magistrate's judgment is that accused I is fined Sh. 600 less than the statutory fine under Cap. 79. The sentence on accused I is confirmed subject to the Magistrate having the accused before him and passing a sentence of fine according to the law.