[1941] EACA 44

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent $\nu$ .

## GULAM HUSSEIN JAMAL, Appellant Criminal Appeal No. 11 of 1941

Appeal from decision of H. M. Supreme Court of Kenya.

$\sim$ $\sim$ 1

Criminal Law—Kenya Penal Code, section 296—Possession of property reasonably suspected of having been stolen—Proof of possession.

Appellant and two others were convicted of being in possession in the sense of conveying of two motor tyres reasonably suspected of having been stolen without being able to account for the same. The only point taken by the appellant in his appeal was whether it had been established that the appellant had ever been in possession. He claimed to be a mere intermediary. He had approached one of. the Crown witnesses with an offer to sell two motor tyres. On police instructions the offer was accepted subject to inspection. Appellant had then taken the purchaser by devious ways to a place where the two other co-accused were and on appellant's instructions the purchaser, then, went to another place where he was met by the appellant and his two co-accused, who were there for the purpose of handing over the tyres. The tyres were lying there in a ditch by the roadside when all the accused were afrested. The magistrate found that the accused was "guiltily implicated" in the possession and convicted. The Supreme Court of Kenya on appeal affirmed the conviction holding that the evidence established possession in the accused.

Appellant appealed to this Court.

Held (12-2-41).—That the conviction was right. Rex v. Watson, 12 Cr. A. R. 62, considered.

• Burke for the Appellant.

Brown, Solicitor General, for the Crown.

\* JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.)—It is abundantly clear that the appellant in the part he played in this case was morally guilty, but the question we have to answer is whether what he did falls within the provisions of section 296 of the Penal Code.

The tyres the subject matter of this charge were lying in a ditch by the roadside preparatory to their being taken to Nairobi. As a result of a trap set by the police it was arranged that one R. S. Patel should make an offer for the tyres. which offer was made and accepted. It is obvious that the tyres had been brought from some place to where they were found with a view to carrying out the transaction with Patel, A ditch by the roadside is not a likely spot for the more or less permanent residence of two practically new lorry tyres. There is evidence that the appellant was intimately connected with the transaction; it is not denied that he was the medium through whom Patel was approached; in fact this may be said to be the sheet anchor of his appeal. Patel stated that the appellant said he had two tyres for sale. The ordinary meaning of those words must be that he either alone or in conjunction with others had those tyres somewhere under his sole or

\*Sir Henry Webb, C. J., did not sign the judgment.

joint control. We can see no reason why we should not give this meaning to the words merely because the three accused in their unsworn statements suggest otherwise. It has been argued that the appellant, whatever his suspicions or knowledge that he was engaged in a dishonest act may have been, was only a negotiator and could not be convicted of being in possession in the sense of conveying at the time of his arrest or be held to be in possession at all. We think it is only reasonable to say that he was a party to the tyres being brought to the ditch by the roadside—in fact that is clear from the evidence—and it is also clear that he was at the spot with his two co-accused when the tyres were about to be put into the car on another stage of their journey. Before that stage commenced all three were arrested by the police. It seems to us that the commonsense view is that all three accused, to use the magistrate's expression, were "guiltily" implicated", by which we mean that they were in possession of the tyres in the sense of conveying within the meaning of section 296 of the Penal Code. And the presence of the appellant with the other accused with the property about to be conveyed to Nairobi is sufficient to distinguish the case from Rex v. Watson, 12 Cr. A. R. 62, where it would appear that the prisoner did not have any kind of possession of the property.

We should have been content to leave the judgment here, but in view of this being a majority judgment it is desirable to explain and contrast *Watson's* case in greater detail. In that case the report reveals not only that there was no direct evidence of the appellant having had any of the property in his physical possession or having had any control over it, but also that the jury had not been directed on the point as to whether the appellant was in possession of the stolen property either by himself or jointly. And notwithstanding the little or no evidence as to possession or control the Court of Criminal Appeal said, "Had he (the recorder) directed the jury that if they came to the conclusion upon the evidence that the appellant was in possession of the stolen property either by himself or jointly with the other prisoners, in the sense that he had either exclusive or joint control of it, and the jury had accepted that view on the facts the conviction might have been supported". It is manifest from the judgment that had there been a correct direction and had the jury then found the appellant guilty as a receiver the appeal would have been dismissed. There is nothing then incompatible in a person being a negotiator for disposing of property and at the same time in possession or control of the property. In the present case there was much more evidence to found a case of being in possession or control than in Watson's case and the Supreme Court when considering the appeal had Watson's case before their minds and came to the conclusion that the appellant had joint custody or possession of the tyres. We think that this view was not only a reasonable view but the correct view and that the Court was not precluded from taking that view—just as the jury would not have been precluded from taking it in Watson's case had there been a proper direction.

The appeal is dismissed.