[1940] EACA 65

# CRIMINAL CONFIRMATION

### Before HAYDEN and BARTLEY, JJ.

REX. Prosecutor $\mathbf{v}$ . KIPSOI ARAP SOIYOT, Accused

## Confirmation Case No. 418 of 1941

Criminal Law and Procedure-Section 10 of the Stock and Produce Theft Ordinance No. 18 of 1933—Onus of proof.

The accused was charged before the second class magistrate at Kericho with being in unlawful possession (in a proclaimed area) of a cow knowing, or having reason to believe, that the same was stolen contra section 10 Stock and Produce Theft Ordinance (No. 18 of 1933). The accused pleaded not guilty. The magistrate after trial found the accused guilty and convicted him and sentenced him to a sentence of six months simple imprisonment and to a fine of Sh. 300, in default of which a further three months simple imprisonment.

The magistrate in his judgment held that, although the cow was found in a Lumbwa herd branded with a Kisii brand, and that this was the factor which first led to suspicion, this was a matter of no great significance as the claimant of the cow was a Masai.

He held, however, that the fact that the animal was proved in Court by the prosecutor to have been a stolen one was alone sufficient to place the onus on the accused of proving his admitted possession of it to be lawful, and that this onus the accused had failed to discharge.

The case came before the Supreme Court for confirmation.

Held (17-5-41).-(1) That the presence of a Kisii branded animal in a Lumbwa native herd in the absence of any reasonable explanation was sufficient to place the onus on the accused to prove his possession lawful.

(2) That it was extremely doubtful if the mere fact that the beast found in accused's possession was later found to be a stolen one was sufficient. The Court's opinion expressed to the contrary.

(3) In view of (1) supra the conviction and sentence confirmed.

#### Accused absent unrepresented.

#### Spurling, Crown Counsel, for the Crown.

ORDER.—The accused, who is a Lumbwa, was found in possession of a cow branded with the brand of the Kisii tribe during a search for stolen stock on the 9th February, 1941. The border guard and tribal policeman who found the cow in accused's possession arrested him and seized the cow as they considered the circumstances described afforded reasonable grounds for belief that the stock was stolen.

In our view in the absence of a reasonable explanation the finding of a Kisii branded cow in a Lumbwa's herd is a circumstance which may reasonably lead to the belief that the cow was stolen and is sufficient evidence to place on the accused the onus of proving that his possession was lawful under section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933.

The evidence at the trial which the magistrate believed proved that the cow actually was stolen from a Masai who had bought it from a Kisii. In view of this evidence the magistrate in his judgment said, "Although the cow was first suspected because it has the K brand of Kisii cattle, this fact is in this case of no great significance, as the claimant of the cow is a Masai". The magistrate proceeded apparently to direct himself that as however the prosecution had proved the cow to be actually a stolen animal this alone was sufficient to place the onus on the accused to prove lawful possession under the Ordinance.

We do not agree with the magistrate that as the ownership of the cow was proved to be in a Masai this made the circumstance that a Kisii branded cow was found in the possession of a Lumbwa of no great significance. Our view has already been expressed and we see no reason for altering it because in this particular instance the cow had been purchased by a Masai.

Although it is unnecessary for the purpose of this case to decide whether or not the magistrate was correct in considering that the mere proof that a cow proved to be stolen was found in a person's possession is sufficient to place on him the onus of proving lawful possession under the above quoted Ordinance we will express the opinion that this is not so. Our view is that to bring the case within section 10 of the Ordinance the cow must be found in possession or on the premises of the accused in circumstances which reasonably lead to the belief that the cow was stolen. Those circumstances must therefore exist and be present at the time when the cow was found, and the mere proof that it was afterwards found out that the beast was stolen is not sufficient. Had the magistrate properly directed himself in this case he must inevitably have come to the same conclusion. The conviction and sentence are affirmed.