[1956] EACA 11

## APPELLATE CRIMINAL

### Before SIR KENNETH O'CONNOR, C. J

### ISMAIL BIN FARAH, Appellant

# . $\nu_{\star}$ . THE QUEEN, Respondent

## Criminal Appeal No. 316 of 1956

Criminal Law-Penal Code, sections 270, 389 and 390. Attempt to steal-Necessary ingredients of the offence—Attempt as defined in section 389 of the Penal Code.

The accused was charged with attempting to steal a coat from a parked car which was securely locked. He was seen "hovering around it and trying to open a window". He was convicted. On appeal it was argued that an attempt to open the door of the car was equivocal in its nature and that it did not constitute an attempt to steal the coat which was in it.

Held (2-1-57).—(1) The necessary ingredients of an attempt as defined in section 389 of the Penal Code are:-

$(a)$ an intention to commit an offence;

(b) a beginning to put the intention into execution by means adapted to its fulfilment; and (c) a manifestation of the intention by some overt act. $\cdot$

$\cdots$

$\mathcal{M}^{\mathcal{A}}(x) = \mathcal{M}^{\mathcal{A}}(x)$

(2) In the present case the accused had tried to force the window of the car, had acted furtively, moved off as soon as the police arrived, and had denied falsely tampering with the car at all. $\mathcal{L}_{\mathcal{A}}\left(\mathcal{A}\right)$ $\mathcal{A} = \{1,2,3,4\}$ The company of the party $\pmb{\cdot}$

(3) Upon these facts the Magistrate could reasonably regard the accused as having the specific purpose of stealing the coat. Para the companies with the

Appeal dismissed.

Cases cited: R. v. Eagleton, Dears, 515, 538; R. v. Roberts, Dears, 16, 539; R. v. Cope, 16 Cr. App. R. 77; R. v. Bloxham, 29 Cr. App. R. 37; R. v. Robinson, (1915) $-2$ K. B. 342. $\overline{a}$

[*Editor's Note*.—The test adopted by Park, B., in $\dot{R}$ , v. *Eagleton* (supra) and followed in $R$ . v. *Robinson* (supra), namely "whether there was any further act on the prisoner's $\ldots, \ldots$ part remaining to be done", is not law in Kenya. It is expressly negatived by section 389 of the Penal Code according to this decision.] $\epsilon_{\rm{max}} = \epsilon_{\rm{max}}$

$\mathcal{F}(\mathcal{A})$

$G. S.$ Sandhu for the appellant.

Keysell, Crown counsel, for the Crown.

Reported by: A. Q. Malik, Esq., Resident Magistrate, Nairobi.

JUDGMENT.—The appellant and one Warsame s/o Jarma were, on 4th October, 1956, convicted of an attempt to steal a greatcoat from a motor vehicle contrary to sections 270 and 390 of the Penal Code. The appellant was sentenced to 18 months' imprisonment with hard labour. Against his conviction the appellant appeals. $\mathcal{L}^{\text{max}}_{\text{max}}(x) = \mathcal{L}^{\text{max}}_{\text{max}}(x)$ $\mathcal{L}(\mathcal{L}) \to \mathcal{L}(\mathcal{L})$ مالو معربة العداد

I take the following statement of the facts from the judgment of the learned $\mathcal{A}_{\mathcal{A}}(f) = \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}(f) + \mathcal{A}_{\mathcal{A}}$ trial magistrate: — **Second Margaret** "The two accused, Ismail Bin Farah and Warsame Jarma, are charged $\mathcal{A}^{\mathcal{A}}$ with attempting to steal a coat from car KBZ 86 on the evening of 20th September, 1956. First witness left his car outside the Avenue Hotel on the evening in question. His wife's coat was inside and the car was securely

locked. The following morning first witness found signs on the front window $\mathcal{L} = \{ \mathcal{L} \in \mathcal{L} : \mathcal{L} \in \mathcal{L} \}$ of attempts to open it. $\langle \mathbf{H}_{\mathcal{A}} \rangle = \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A}} \mathbf{1}_{\mathcal{A$

$\mathcal{F} = \{ \mathcal{F} \mid \mathcal{F} \in \mathcal{F} \}$

$\varphi\approx\pi^2$

$\mathcal{A}_{\mathcal{A}}$