[1983] KEHC 39 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT NAIROBI

crim app 785 of 82

STEPHEN CHEGE …………………………………………APPELLANT

AND

REPUBLIC………………………………………………..RESPONDENT

CORAM: PORTER AG J

(appellant absent, unrepresented,

M B Mbai (State Counsel) for Respondent.

Possessing or conveying suspected stolen property - reasonable suspicion - whether the charge should state that the suspicion was reasonable - whether possession perse is evidence of guilt - account of possession of the property - when is the accused guilty of the offence.

Right of the accused - right to know the fact of the case against him - whether referring for convenience to other files sufficient.

Procedure - search - detention - power of police officer - admission of the offence by accused - procedure of the accused when facts are readout to the court.

The accused/appellant was convicted by the learned District Magistrate of the 1st class at Nairobi of conveying suspected stolen property contrary to Section 323 of the Penal Code Cap 63 of the Laws of Kenya and sentenced to 2 years’ imprisonment. He was detained by two police officers as per the powers conferred upon them under Section 26 of the Criminal Procedure code Cap 75 of the Laws of Kenya.

The police had suspected that the goods that the accused had were stolen. The charges did not state that the suspicion was reasonable.

Upon the charge being read to him the accused admitted the offence. The prosecution stated that the facts of the case were as per Criminal Case No 1898 of 1982. No other facts were given and there was no evidence that the accused knew of the allegations made against him except those set out in the charge. He appealed to the High court against both the conviction and the sentence.

Held:

1. Each case should be considered on its own merits and reference to other files is not sufficient. The facts of the case must be stated.

2. The charge must clearly state the offence as set out under Section 323 of the Penal Code. It is not enough that the accused had in possession or was conveying in any manner anything which might be reasonably suspected of having been stolen or unlawfully obtained but if he admits to these facts and failed to give an account to the satisfaction of the court of how he came by the same, then and only then would he be guilty an offence.

3. When the appellant admitted the offence all he admitted was that he had been detained by the police officers under Section 26 of the Criminal Procedure Code and that he was found conveying the items which were suspected to be stolen or unlawfully detained. He did not admit that the suspicion was reasonable.

4. The Magistrate should have treated accused’s plea as a not guilty one and proceeded to hear the evidence. The conviction cannot stand.

Conviction squashed and sentence set aside.

Cases

Koech v Republic [1968] EALR 109

Statutes

1. Penal Code (Cap 63) Section 323

2. Criminal Procedure Code (Cap75) Section 26

Advocates

MB Mbai for Respondent

JUDGMENT

The appellant was convicted by the learned District Magistrate of the 1st class at Nairobi of conveying suspected stolen property contrary to Section 323 of the Penal Code and sentenced to two years imprisonment. He now appeals against that conviction and sentence on the three grounds of appeal relating to conviction and the one ground of appeal relating to sentence set out in the grounds of appeal. State Counsel does not support the conviction.

The accused was charged under Section 323 of the Penal Code which reads as follows:

“Any person who has been detained as a result of the exercise of the powers conferred by Section 26 of the Criminal Procedure Code and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained and who does not give an account to the satisfaction of the court of how he came by the same is guilty of a misdemeanor.”

Section 26 of the Criminal procedure Code which is referred to in Section 323 of the penal Code roads as follows:

“Section 26(i) A police officer or other person authorized in writing in that behalf by the Commissioner of police may stop, search and detail …( c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.”

In the present cane the charge sets out … (a) that the accused was detained by two police officers as a result of the powers conferred to them under Section 26 of the Criminal Procedure Code (b) That a velvet coat, a pair of sandals, a blouse, a water jug, a pair of stockings and two head caps were found being conveyed by him and (c) that the police suspected these items to have been set out that that suspicion was reasonable. When this charge was read to the accused he replied “(I admit the offence}” the prosecutor then stated that the facts in this case were “(as per criminal case 1898/82).”

No other facts are given and there is no note on the file to state whether the accused was present when the facts in that case were read out to the court. There is therefore nothing on the record to show that the accused knew of the allegations which were made against him apart from those which were set out in the charge. Although one appreciates of the August 1, 1982 the court were over burdened with charges similar to this one arising from the looting which took place nevertheless this file read in isolation does not show that even the semblance of justice was done to this accused. Each case is required to be considered on its own merits and the practice of referring for convenience to other files should be discontinued forthwith.

I suspect that on this ground alone it would be proper to quash this conviction. However there are further matters of procedure which have not been followed in the court below.

In the case of Koech v Republic [1968] EALR at page 109 it was pointed out that under Section 323 of the Penal Code the offence with which an accused is charged was not that he had in possession or was conveying in any manner anything which might be reasonably suspected of having been stolen or unlawfully obtained but that if he admitted to those facts and failed to give an account to the satisfaction of the court of how he came by the same then and only then would he be guilty of an offence. When the appellant said that when the charge was read to him that he admitted the offence all he was admitting was that he had been detained by the police officers under Section 26 of the Criminal Procedure Code and that he was found conveying these items which were suspected to have been stolen or unlawfully obtained.

He has not admitted that that suspicion was reasonable. He has not been asked as he should have been under the authority of the Koech case whether he had an account of his possession of the goods. In his grounds of appeal he obviously has something to say. It is not for the learned District Magistrate or for me to jump to any conclusion as to whether what he says is true or not. Such decisions can only be made on the hearing of evidence. The District Magistrate in this case should clearly therefore have treated this as a not guilty plea and proceeded to hear evidence.

Clearly the conviction cannot stand. It is quashed and the sentence is set aside. I have considered whether I should order a retrial in this matter. For similar reasons to those set out in the Koech case I am of the view it would not be proper to do so.

D C PORTER

AG JUDGE

28TH JANUARY 1983