Rex v Sumba (Criminal Appeal No. 129 of 1942) [1943] EACA 43 (1 January 1943)

## APPELLATE CRIMINAL.

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

#### REX. Respondent

$\mathbf{1}$

# HENRY WILSON s/o SUMBA, Appellant

### Criminal Appeal No. 129 of 1942

Stealing by an agent—Section 277. (b) Penal Code—Number of charges involved— Multiplicity—Prejudice—Suggested procedure.

#### Appellant absent, unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT (5-1-43).—The appellant was convicted of an offence *contra* section 277 (b) of the Penal Code and sentenced to two years' imprisonment with hard labour. In his finding the Magistrate found the accused guilty of stealing an aggregate sum of Sh. 67. From the conviction and sentence the appellant appeals.

The the the charged involved 29 persons, but acting under section 137 (i) the charge only specified the gross amount of property in respect of which the offence. was alleged to have been committed.

It would appear that the Crown only support the conviction in so far as the Sh. 6 tax paid to the accused by the witness Omuga s/o Asienga and the sum of Sh. 8 paid by Ngata s/o Nanderia. In all the other cases there was no evidence whatever that the amounts had not been accounted for.

We then have to consider the cases of Omuga and Ngata. The former says that he paid the accused Sh. 8, for which payment he was only given a Sh. 2 rate receipt, while the latter says he paid Sh. 8 but got no receipt at all.

The Revenue Officer says he has no record as regards rates, and that payments of rates in 1941 were supposed to be recorded on "field sheets" given to the clerks. We have no evidence as to what became of these "field sheets" when completed. Presumably they would be returned to some person in authority and could have been produced in Court. The witness goes on to state that "according to his Register" Ngata was told to pay Sh. 6 reduced tax which he paid for 1938-40, but that he was "not marked off in my register as paid for 1941". The witness does not tell us how or by whom this register was kept and did not, perhaps could not, say definitely whether Ngata's tax for 1941 was paid in or not. The witness admits that he saw the accused at Mumias in February, 1941, but cannot remember if accused asked for rate receipt books.

As regards Omuga the Revenue Officer says that according to his Register he was liable to pay Sh. 12 tax, but had not paid since and including 1939. What the witness must have meant was that he had no record of Omuga having paid or that the accused had accounted for any such payment. Our previous remarks as to how and by whom the Register was kept apply to the case of Omuga.

Did the matter end there we think that there would be a certain amount of doubt as to the guilt of the accused on the above two counts, though we are not prepared to say whether such doubt would be sufficient to entitle the accused to an acquittal. The possible doubt referred to above is, however, carried very

much further by the evidence of Libunyu, who says: "I paid (in 1941) Sh. 8 to accused, being Sh. 6 reduced tax and Sh. 2 rate. I received receipt for rate, but have never received tax receipt". From that the Court was expected to infer that<br>the accused had pocketed the Sh. 6. Luckily for the accused this possible inference is completely shattered by the Revenue Officer, who states that Libunya is marked off in his Register as having paid tax for 1941.

It appears to us in the absence of evidence to the contrary that there must be reasonable doubt as to whether the accused did not account for the payments made to him by Omuga and Ngata, but that for some reason or other their names were not marked off in Mr. Pike's Register. The accused is entitled to the benefit of that reasonable doubt and for this reason if for no other we allow the appeal. The conviction is quashed and sentence set aside.

In cases of this sort, where various sums of money paid by a number of<br>persons are involved, we would stress the desirability of very careful investigation and preparation before a charge is finally framed. In this case there were 29 charges, of which 27 could not be proved, a fact which might well have entitled the accused to an acquittal on the grounds of multiplicity and prejudice, and we would also stress the desirability of cases of this kind being tried by a Resident Magistrate where possible.