Rex v Oyoo (Criminal Appeal No. 147 Of 1945) [1945] EACA 45 (1 January 1945)

## APPELLATE CRIMINAL

## BEFORE HORNE, J.

REX, Respondent

$\boldsymbol{\nu}$ .

## MATHAYO OYOO, Appellant

## Criminal Appeal No. 147 of 1945

Criminal law—Unlawful possession of stock—Stock and Produce Theft (Levy of Fines) Ordinance, 1933, s. 10 (1)—Burden of proof.

Observations on the trial of cases of unlawful possession of stock under section 10 of the Stock and Produce (Levy and Fines) Ordinances, 1933.

Kohli for the Appellant.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—Cases under section 10 of the Stock Theft Ordinance are sometimes difficult and I understand that a number of doubtful claims have been made to cattle found in possession of persons within proclaimed districts.

The essential thing is for the magistrate to be satisfied before calling upon the accused that the cattle in question has been found in the possession of the accused in circumstances reasonably leading to the belief that it had been stolen. Such circumstances may exist without any person claiming the animal, but where the circumstances are based upon a claim being made, the magistrate must be satisfied that the claim is an honest one before the accused can be called upon. In this case there is evidence upon which the magistrate could be so satisfied. It is probable that the claimant was not sent out with an askari without producing the "tangazo" giving the description of the stolen animal. But I think it would be preferable if the prosecution in this class of case always put the tangazo in evidence. A claimant may however be in error in picking out a beast from a strange herd two years ago after the theft but that does not often occur among persons used to cattle. And of course magistrates should be on their guard against false claims generally.

In this case once the appellant was called upon he set up that the beast had been bred by him out of a cow owned by him and the onus of establishing that was upon him. It is objected that as the magistrate was in doubt he should not have called a witness to give evidence in rebuttal of the evidence of the appellant and his witnesses. I agree that is the general rule, but if the evidence so called supported the appellant, it would then have settled the case in his favour, and I think the magistrate acted properly in calling the witness even though the defence case had closed. Moreover this evidence would be admissible under section 210 C. P. C.

For these reasons the appeal against conviction is dismissed.

As to sentence the Detention Camp Ordinance provides for a limitation of "six months in all". I vary the sentence to 2 months D. C. and a fine of Sh. 300 in default further 4 months D. C.