[1951] EACA 137

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and LOCKHART-SMITH. J. of A.

HATHIBHAI SOMABHAI PATEL, Appellant (Original Accused No. 2)

$\mathbf{1}$

REX, Respondent (Original Prosecutor)

Criminal Appeal No. 200 of 1950

(Appeal from the decision of H. M. Supreme Court of Kenya—Sir Barclay Nihill, C. J., and Modera, J.)

Sections 262 and 263 (2), Penal Code—Special owner—General owner—Lost property.

The appellant who was a clerk in the E. A. Railways and Harbours, took away two tins of ghee which were in a package without any identification marks and which had in some unknown manner found their way into the Railway Goods Office, Kisumu. He was convicted of theft and appealed on the ground that the Railway was not the "Special Owner" and there was no proof that the tins of ghee were "the property of any person".

Held (21-1-51).—That the Railways were "special owners" as defined by section 263 (2) Penal Code and the tins of ghee were "the property of any person" as defined by section 262 Penal Code and the appellant was rig

Cases referred to: Hibbert v. McKiernan, 64 T. L. R. 256.

A. R. Kapila for the appellant. $A$

Todd, Crown Counsel, Kenya, for the Crown.

JUDGMENT.—This is an appeal from a judgment of the Supreme Court of Kenya in its appellate capacity, which Court had dismissed an appeal from a conviction by the Resident Magistrate, Kisumu, of theft of goods in transit under section 274 $(c)$ Penal Code.

The facts are that the appellant, who was a clerk with long service in the East African Railways and Harbours, removed and took away two tins of ghee which were in one package without any identification marks, but which had, in some manner unknown, found their way into a Railway Goods Office, Kisumu Pier. Evidence was given by a Mr. Morris, Assistant Traffic Superintendent, to the effect that, where unmarked packages are found on railway property, such as a goods office or a shed, they are first entered in a "Shortage and Excess Book", and if inquiries fail to trace the owner, or the owner does not come to claim his property, they are then sent to the Lost Property Office at Nairobi, where they are kept for a certain period. If, at the end of that 'period, they are not claimed they are sold and the money credited to a railway compensation account.

Mr. Kapila, who has said everything that can be said on behalf of the appellant, contends that the Railway were never the "special owners" within the meaning of that term under section 263 (2), Penal Code, or that, even assuming the Railway were the "special owners", the property was not property capable of being stolen, having regard to the first paragraph of section 262 of the Penal Code, inasmuch as there was no proof that the tins of ghee were "the property of any person". Mr. Kapila suggested that the property had probably been abandoned by the true owner who might have been anxious to avoid being found out in, and prosecuted for, moving ghee without a permit. The argument proceeds that, assuming the property was abandoned, then the mere fact that it was found in a Lost Property Office does not make it property capable of being stolen. This Court is in fact asked to hold that a person who steals from a Lost Property Office cannot be convicted of theft. This is a startling proposition.

The appellant's advocate in this Court advanced an argument based on section 262 of the Penal Code that, even where there was a "special owner" of an article, such article was not under section 262 capable of being stolen unless there was also an owner of such article in the ordinary sense of the word "owner". We consider that such an argument is fallacious when the sections of the Penal Code dealing with theft are read and considered together as in our view they must be. These sections clearly visualize a "general" owner, that is to say an "owner" in the ordinary sense of the term and a "special owner", that is an artificial "owner" as explained in the last paragraph of section 263 (2). Wherever in regard to a particular article there is an "owner", whether "general" or "special", that article for the purpose of the theft sections of the Penal Code must in our view be regarded as the property of that owner although in the case of the "special" owner it is only his property subject to the rights of the "general" owner. Taking that view of the theft sections, we find it unnecessary to arrive at the ridiculous result which would follow if we were to hold that an article to be capable of being stolen must have at the time of the theft a "general" as well as a "special" owner; that is to say, that anyone could steal with impunity from the Railway Lost Property Office unless the Crown could prove that the particular property taken from the "special" owner, the Railway authority, had also a<br>"general owner" at the time of the theft. We are satisfied from the wording of the sections that the Legislature intended no such absurd result.

Mr. Kapila seeks to differentiate the present case from the case of *Hibbert v*. McKiernan, Vol. 64 T. L. R. 256 and Archbold (32nd edition), pages 43, 535 and 550, in that in the Hibbert case the golf club did not allow unauthorized persons to enter the golf course and thus the golf club claimed property in abandoned golf balls found on the course, whereas in the present case the Railway claim no property in the ghee. The decision in Hibbert's case, depending as it did on trespass, is of little help in the present case.

In section 263, sub-section (2), the term "special owner" is defined as including any person who has a charge or lien upon the thing in question or any right arising from or depending upon holding possession of the thing in question. It seems to us that had any person approached the Railway and claimed the ghee, and if the Railway were satisfied that the claimant was the true owner the Railway would have been entitled, before handing over the ghee, to require payment of demurrage or storage charges. Once that is admitted it seems clear beyond argument that the Railway were "special owners" within the definition of section 263 (2).

Even therefore if in truth (and this is mere surmise) the ghee had been abandoned we agree with learned Crown Counsel (Mr. Todd) when he argued that the Railway were "special owners". (It is true that the definition of larceny in section 1 (2) (iii), Larceny Act, 1916, is not in terms the same as the definition of theft in the Kenya Penal Code (see Archbold, page 540.)

The evidence in the present case established that the Railway had a right arising from or dependent upon holding possession of the ghee, namely, the right after a period to sell this ghee. For the foregoing reasons we think the conviction was justified by the evidence and that the Supreme Court of Kenya as well as the trial Magistrate came to a correct conclusion.

The appeal is dismissed.