[1980] KECA 11 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Law, Miller & Potter JJA)

CRIMINAL APPEAL NO. 77 OF 1979

BETWEEN

JOSEPH MBITHI MWAULA..........................APPELLANT

PETER MULILI MUTHOKA...........................APPELLANT

AND

REPUBLIC....................................................RESPONDENT

(Appeal against the dismissal by Hancox J on 10th December 1979 in Criminal Appeal Nos 510 and 546 of 1979)

JUDGMENT OF THE COURT

The first appellant Joseph was convicted in the Court of the Resident Magistrate at Machakos on three counts of handling stolen cattle, contrary to section 322(2) of the Penal Code, and was sentenced to three concurrent terms of seven years’ imprisonment. The second appellant (Peter) was convicted in the same trial on two counts of stock theft, contrary to section 278 of the Penal Code, and was sentenced to two concurrent terms of seven years imprisonment and to six strokes of corporal punishment on each count. They both appealed to the High Court (Hancox J). Joseph’s appeal succeeded on one count, but failed and was dismissed on the other two counts. Peter’s appeal was dismissed in toto. This being a second appeal, it is confined to points of law.

Peter’s appeal presents no difficulty. He was convicted of stealing three head of cattle on the night of 11th January 1979, and six head of cattle on the night of 9th February 1979. There was direct evidence, acceptable to both courts below, that Peter was seen in possession of these animals, in each case on the morning after they were stolen. We see no reason to think that he was wrongly convicted, and his appeal is ordered to be dismissed.

The appeal of Joseph has caused us much concern. He stands convicted, on two alternative counts, of handling stolen property, in that he dishonestly received the cattle stolen by Peter, knowing or having reason to believe them to have been stolen. Joseph gave evidence on oath at the trial. He sated that, on 13th January 1979, he bought the three head of cattle from Peter, who wanted Shs 2300 for them. After some bargaining, a price of Shs 1630 was agreed upon and paid by Joseph. These three animals, which were not grade cattle but ordinary native cattle, were valued by their owner at Shs 4000. There was no other evidence of their value. According to Joseph, Peter said that the cattle were his, and that he wanted to sell them as he needed money to pay school fees. The sale took place openly, in the cattle enclosure at Kangundo trading centre. Joseph deposed that he had no reason to believe the cattle had been stolen.

As regards the six head of cattle, the subject of the other count and which Peter has been convicted of stealing, Joseph deposed, that on 10th February 1979, he was looking after his own cattle when he saw Peter and another man driving the six head of cattle along a road. Peter asked Joseph to look after these beasts, four bulls and two cows, while he went to look for a cow which had strayed. Joseph agreed, and took the six animals to his home together with his own cattle. Next day he again saw Peter who, instead of removing the cattle, said that he was still looking for the stray one. Joseph then for the first time began to suspect that the cattle had been stolen, and reported the matter to the police at Kangundo. This part of his story is corroborated by PC Mandime from Machakos police station, who deposed that on 14th February 1979 Joseph was sent to him from Kangundo with two other persons who “had been treated as witnesses”, Doubt was, however, cast at the trial on the truthfulness of the remainder of Joseph’s evidence by the testimony of Shem, a butcher at Kangundo, who deposed that on 10th February 1979 Joseph asked him to come to his home to look at four bulls which Shem described and which correspond to the four bulls which were part of the six head of cattle which were stolen by Peter. These six head of cattle were valued by their owner at Shs 7800, and in Shem’s opinion the four bulls were worth Shs 5000. Shem and Joseph went back to Shem’s butchery where they were joined by Peter, who agreed to sell the four bulls to Joseph for Shs 2800, Joseph paid Shs 1200 there and then to Peter, and promised to pay the balance later.

If Shem’s evidence is true, then Joseph’s evidence that he was merely looking after the cattle as a favour to Peter cannot be true, as Joseph had bought four of them from Peter at little more than half their market value. The trial magistrate described Shem as a completely independent witness who was a witness of truth. Hancox J made no specific finding as to Shem’s truthfulness; but he seems to have accepted his evidence as true and reliable, as he acted on it.

The position as we see it is that Joseph, having admitted being in possession of property proved to have been recently stolen, should not be convicted of handling if his explanation for such possession was one which is reasonable and which might possibly be true; he did not have to convince the Court that it was in fact true; (Kipsaina v The Republic[1975] EA 253). This is much the same as saying that a person accused of handling is entitled to be acquitted if, on consideration of the evidence as a whole, a reasonable doubt is raised whether, at the time he received the property, he did so with a guilty mind, knowing or having reason to believe it to have been stolen. No onus is placed on the accused person in this respect; but if he has offered an explanation, it will only avail him if it is both reasonable and credible.

Mr Jaffer for the appellant Joseph summarised the grounds of appeal as follows: there was no proper evaluation of the evidence by Hancox J, and both courts below erred in that they reversed the onus of proof and placed it on Joseph. We see no merit in the first part of this submission. The first appellate judge reviewed the evidence in detail, and correctly held, as regards Joseph, that “the issue in this case was solely whether the prosecution had established guilty knowledge”. As regards the second part of Mr Jaffer’s submission, he cited parts of the judgment of the Resident Magistrate which, he submitted, indicated that the magistrate had in effect placed the onus of proving his innocence on Joseph. For instance, early in the judgment this passage occurs:

None of the [appellants] disputed the fact that the cattle mentioned in the three counts belonged to the respective owners and that they had been stolen from their bomasduring the material nights. They did not dispute the identity and ownership of all the cattle. I therefore find all these as facts.

We agree with Mr Jaffer that this passage is open to grave objection. It was not Peter’s case that the cattle had not been stolen, or properly identified. His case was that he had not stolen them. In the same way, it was not Joseph’s case that the cattle had not been stolen, or properly identified. His case was that when he received the cattle, he did not know, or have reason to believe, that they had been stolen. The fact that the appellants did not dispute ownership and identification did not amount to proof of these matters, and justify the finding “I therefore find all these as facts”. Even a statement made by a person accused of handling, but who has pleaded “Not Guilty”, that he knew or believed the goods to have been stolen, does not amount to proof that they were in fact stolen; see R v Hulbert(1979) 69 Cr App Rep 243. A fortioriit is wrong to base findings of fact that goods were stolen on a mere failure to dispute or challenge evidence to this effect tendered by prosecution witnesses. Nor, with respect, can we entirely agree with Hancox J’s approach to this question:

But the task of approaching those facts is made that much easier if they are not disputed, and it is indeed in the interests of accused persons that this should be so, because it enables the Court to concentrate on other matters, of equal or greater importance to the accused, which are disputed and the subject of his defence.

The true position is that, as a general rule, facts which have to be proved to establish the guilt of an accused person in a criminal case must be proved beyond all reasonable doubt by the prosecution, on the evidence considered as a whole. There is no short cut, or “much easier” way, in criminal cases. Certainly we know of no authority for the proposition that proof beyond all reasonable doubt of any material fact can be established in the course of a criminal trial by mere silence in respect of it by an accused person. To hold otherwise would be tantamount to saying that when an accused person pleads “Not Guilty” and takes no further part in the trial, the prosecution is relieved of the burden of proving inculpatory facts beyond all reasonable doubt. However, it is clear from reading the whole of the magistrate’s judgment that he accepted the evidence of the owners, both as to the stealing of their cattle and the identification of those subsequently recovered, which evidence amply supports the finding erroneously and prematurely arrived at in the passage from his judgment quoted above.

As regards the three cattle, the subject of the first count of handling on which Joseph was convicted, his explanation seems to us to be both reasonable and possibly true. The cattle concerned were not grade cattle, but inferior animals. Joseph bought them openly, in the presence of witnesses, at the place where cattle are ordinarily bought and sold, at a price arrived at after bargaining, which price has not been shown by independent evidence to be so inadequate as to justify the inference that he knew or must have believed the cattle to have been stolen. Thereafter he kept the cattle with his own, at his home, for about one month, until they were seized by the police. We think that his conviction on this count was wrong in law, and we allow his appeal on this count, quash the conviction, and set aside the sentence.

The second count on which Joseph was convicted relates to the six cattle stolen by Peter on 9th February 1979. Joseph’s explanation for being in possession of these cattle on the following day was that he was merely looking after them for Peter. The trial magistrate found this explanation to be “totally unworthy of any credibility whatever” in the light of Shem’s evidence, which he believed, that he was present (on 10th February 1979) when Joseph bought four bulls out of the six cattle from Peter for an agreed sum of Shs 2800, and that he paid Shs 1200 on the spot and promised to pay the balance later. If this is true, then Joseph’s explanation has been shown to be untrue, and justified the trial magistrate’s finding that he was convinced “beyond any reasonable doubt” that Joseph received the six cattle dishonestly, knowing them to have been stolen.

Mr Jaffer submitted that Shem’s evidence should be rejected as being the uncorroborated evidence of an accomplice, or of a person in the position of an accomplice. It was not suggested at the trial that Shem was an accomplice, nor was it made a ground of appeal either to the first appellate court or to this Court that he should have been treated as an accomplice. We see no reason to differ from the trial magistrate’s finding that Shem was an honest independent witness and a witness of truth, a finding with which Hancox J on first appeal impliedly agreed, as he reviewed Shem’s evidence in detail and acted upon it in dismissing Joseph’s appeal. This being so, Joseph’s explanation for being in possession of the six stolen cattle on the day after they were stolen cannot possibly be true, and both courts below were justified, in our view, in drawing the inescapable inference that Joseph’s possession of these cattle was dishonest as he must have known, or have had reason to believe, that they had been stolen.

Joseph’s appeal on this count must, in our opinion, be dismissed. To summarise, Peter’s appeal against both counts on which he stands convicted fails and is dismissed, and we so order. Joseph’s appeal succeeds on the first count, but is dismissed on the second count, on which he stands convicted, and we so order. The effective sentence which Joseph has to serve remains at seven years’ imprisonment with hard labour, which is the minimum sentence prescribed by law.

Order accordingly.

Dated and delivered at Nairobi this 7th August 1980

E.J.E LAW

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JUDGE OF APPEAL

C.H.E MILLER

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JUDGE OF APPEAL

K.D POTTER

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR