Rex v Woiaresia (Criminal Revision Case No. 94 of 1941) [1940] EACA 68 (1 January 1940)
Full Case Text
# CRIMINAL REVISION
Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.
### REX, Prosecutor
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# NYANYE WOIARESIA. Accused
## Criminal Revision Case No. 94 of 1941
Criminal Law-Criminal Procedure-Charge of receiving-Plea of guilty by the thief—Correct wording of a charge under section 295 (1) of the Penal Code.
The accused was charged in the Resident Magistrate's Court at Eldoret with being in possession of a watch reasonably believed to have been stolen contra section 295 (1) of the Penal Code of Kenya.
Accused pleaded not guilty, but after hearing the evidence the magistrate found him guilty, and having duly entered a conviction sentenced him to a fine of Sh. 110 or three months imprisonment with hard labour in default.
The case came before the Supreme Court of Kenya for revision.
**Held** $(22-4-41)$ .--(1) That the plea of guilty by the thief was not evidence of the theft as against the accused.
(2) The theft was not otherwise sufficiently proved.
(3) It was incorrect to charge a person with mere possession on a charge under section 295 (1) of the Penal Code.
### Accused absent unrepresented.
# Spurling, Crown Counsel, for the Crown.
JUDGMENT.—While we are of the opinion that a conviction for receiving contrary to section 295 (1) of the Penal Code might properly lie in connexion with property found and fraudulently converted by a thief and passed to the receiver, vide Regina v. Harriet and Anthony Adams, 175 E. R. 637, yet in this case we consider that the conviction cannot stand, as a plea of guilty by the thief is no evidence of the theft as against the receiver and the necessary elements to constitute theft by finding were not proved in this case. Quite apart from this, it is not correct to charge a person with mere possession of stolen property on a charge under section 295 (1) of the Penal Code. The proper charge in this case would have been for receiving the watch knowing or having reason to believe it to have been feloniously stolen.
The conviction and sentence are set aside and the fine, if paid, to be refunded.