[1983] KECA 39 (KLR)
The Court of Appeal held that the appellant was in possession of the uncustomed goods by his own admission of transporting them to Kisumu. The prosecution proved the goods were dutiable and that no customs duty had been paid. The exemption forms produced by the appellant were rejected as they were not in his name...
Source-derived case information.
- Citation
- [1983] KECA 39 (KLR)
- Parties
- Appellant: Thomas Ochieng Ajwang; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 31 of 1983
- Procedural Posture
- Criminal Appeal / Second Appeal (court of Appeal)
- Outcome
- appeal dismissed
- Legal Topics
- Possession of Uncustomed Goods, Burden of Proof, Interpretation of Customs Law
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Ochieng Ajwang
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Second Appeal (court of Appeal)
Legal Issues
- 1 Whether the appellant was in possession of uncustomed goods within the meaning of section 185(d)(iii) of the Customs and Excise Act.
- 2 Whether the prosecution proved all elements of the offence beyond reasonable doubt.
- 3 Whether the exemption forms produced by the appellant were sufficient to establish a defence.
Ratio Decidendi
The Court of Appeal held that the appellant was in possession of the uncustomed goods by his own admission of transporting them to Kisumu. The prosecution proved the goods were dutiable and that no customs duty had been paid. The exemption forms produced by the appellant were rejected as they were not in his name and contained alterations. The court found that the appellant's line of defence indicated knowledge that the goods were uncustomed. The magistrate properly considered the evidence without shifting the burden of proof to the appellant. Consequently, all elements of the offence under section 185(d)(iii) of the Customs and Excise Act were established beyond reasonable doubt, and the...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
( Coram: Kneller, Hancox JJA & Chesoni Ag JA )
CRIMINAL APPEAL NO. 31 OF 1983
BETWEEN
THOMAS OCHIENG AJWANG.......................................................................APPELLANT
AND
REPUBLIC...................................................................................................RESPONDENT
JUDGMENT
The appellant, Thomas Ochieng’ Ajwang, was convicted of being in possession of uncustomed goods contrary to section 185(d)(iii) of the Customs and Excise Act (cap 472) and was sentenced to pay a fine of Kshs 8,000 or to serve six months’ imprisonment if he failed to pay the fine.
The subject-matter of the charge were sixty-eight gas cylinders which it was agreed were brought into Kenya from Uganda by boat. They were first landed at Uyoma, were then transported to Uholo market and from there the appellant transported them to Kisumu in his motor vehicle registration No KLY 010.
The appellant’s first appeal in the High Court (Patel J) was against the conviction and sentence of a fine. The trial magistrate’s order of forfeiture of the motor vehicle was set aside as the learned judge found that the gas cylinders were not imported into Kenya by the motor vehicle, which was correct, as the evidence had it that they were brought into the country by boat. Thomas has now appealed to this court from the High Court decision.
Although Thomas admitted bringing the cylinders to Kisumu it appears when they were seized by the police they were at the MPS transport company office and not in Thomas’ possession. They were with Musembi (PW 6) who had stored them pending their transportation to Nairobi.
Section 185(d)(iii) of the Act provides as follows:
“185(d)(iii) Any person who acquires, has in his possession … any goods which he knows, or ought reasonably to have known to be uncustomed goods, shall be guilty of an offence …”
The prosecution must prove the following ingredients of the offence under the foregoing provision. That -
a) the accused was in possession of the goods,
b) the goods were dutiable,
c) he knew or ought reasonably to have known the goods were uncustomed ie duty had not been paid.
The two lower courts found that the appellant was in possession of the goods on his own admission, and the prosecution proved that the goods in question were dutiable. The defence agreed that no customs duty had been paid but argued that duty was exempted under section 143 of the Act. The trial magistrate rejected the forms tendered in evidence by the defence to prove exemption because they were not in the appellant’s name and they contained alterations. Being a criminal case the appellant did not have to prove his innocence but he produced evidence, the forms, which were a matter specially within his knowledge. He was therefore to show that the forms related to him. The magistrate considered the forms with the whole evidence without placing any burden of proof on the appellant, and it was not indeed suggested that he had done otherwise in this appeal. It is apparent from the line of defence adopted by the appellant that he knew the goods were uncustomed. The case against the appellant was therefore proved as required by law and we order this appeal to be dismissed.
Dated and Delivered at Kisumu this 19th day of July 1983.
A.A.KNELLER
...................................
JUDGE OF APPEAL
A.R.W.HANCOX
..................................
JUDGE OF APPEAL
Z.R.CHESONI
.........................................
AG. JUDGE OF APPEAL
I certify that this is a true copy
of the original.
DEPUTY REGISTRAR