Rex v Onyancha (Cr. Conf. Case No. 834/1937) [1938] EACA 193 (1 January 1938)

# CRIMINAL CONFIRMATION

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

### REX, Prosecutor

#### v.

# NYABORO s/o ONYANCHA, Accused

### Cr. Conf. Case No. 834/1937

Criminal Law-Stock theft offence-Unlawful possession of stock-Stock and Produce Theft (Levy of Fines) Ordinance, 1933, section $10$ .

The accused was charged before the second class Court at Kisii "under section 255 of the Penal Code (read with section 10 of Ordinance $18/33$ ) with theft of one heifer, the property of an unknown native owner, on or about $10-5-37$ . The theft being executed in North Mugirangi near the Kisii border".

The magistrate convicted the accused on his plea of: "I admit stealing the beast. I do not know who the owner is", and sentenced him to two years' hard labour and to pay a fine of Sh. 100 in default six months' hard labour.

There was no proof of the ownership of the heifer.

Held (22-1-38).—That section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933, does not merely shift the onus of proof in cases of stock theft but creates a definite offence, the penalties for which are identical with those prescribed for theft.

Accused absent unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.-We have had under our consideration the construction to be placed upon section 10 of the Ordinance 18/33, The Stock and Produce Theft (Levy of Fines) Ordinance, 1933. It seems to us that the effect of the section is not merely to shift the onus of proof but to create a definite offence the penalties for which are identical with those prescribed for theft; and so we hold. The provision has a parallel in section 4 of the Coconut Industry Ordinance, Cap. 153 of the Laws of Kenya. The conviction and sentence are confirmed.