Muigai and Another v Regina (Criminal Appeal No. 501 of 1953; Criminal Appeal No. 502 of 1953) [1953] EACA 18 (1 January 1953)

APPELLATE CRIMINAL

Before HEARNE, C. J.

MURAGURI s/o MUIGAI AND ANOTHER, Appellants

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REGINA, Respondent

Criminal Appeals Nos. 501 and 502 of 1953

Criminal Law—Penal Code, section 273—Stolen stock—Proof of possession— Whether facts amounted to recent possession.

Cattle were unlawfully taken from the owner's boma on the morning of 17th May, 1953. The cattle were found at another place at 5 a.m. on 18th May, 1953. An ambush was laid and three persons, including the two accused were seen creeping up to the cattle and waking, or attempting to wake them with sticks. On the appearance of the police, the three men ran away and, after a chase, the two accused were apprehended, charged and convicted of stock theft. The accused had made no attempt to offer an explanation for their possession. They had merely denied possession. Both accused appealed.

Held (24-9-53).—Possession may be found from proved facts. On the facts proved before the magistrate he was correct in finding that the appellants were in possession of the stolen stock.

(2) The appellants having been found in recent possession of stolen property, and having made no attempt to explain their possession, but having merely denied possession, were rightly convicted.

Appeals dismissed.

Rex v. Gulam Hussein Jamal, (1941) 8 E. A. C. A. 44, followed.

Nowrojee for the two appellants.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The evidence in this case is that four oxen, the property of Mr. Lowis, were missing on the morning of 17 May, 1953, from his *boma*, the door of which had been lifted off its hinges; that they were found at another place, Buruburu, at 5 a.m. on 18 May; that an ambush was laid; that at 7 a.m. three persons, including the two appellants, were seen creeping up to the oxen and waking, or attempting to wake, them by striking them with sticks; that on the appearance of the police, the three men ran away, and that in the chase that ensued, the two appellants were apprehended. Believing this evidence and rejecting the defence, the magistrate convicted, and it is difficult to see how he could have done otherwise. The appeal, at any rate the 4th ground of appeal. which was really not argued, was based on a misapprehension that the magistrate regarded the waking of the sleeping beasts as asportation. The asportation was from Mr. Lowis's *boma* to Buruburu. The offence was complete as soon as the cattle had been had been taken out of his *boma*.

The evidence that was led indicated that the three persons including the appellants were found in possession of the cattle, in the sense that they were treating the cattle as their own property. If they had stood their ground on the arrival of the police and offered the explanation that they had accidentally come across the sleeping animals and had beaten them for some purpose of their own. their story may or may not have been believed. But they ran away, and it is a

clear inference that they had crept up to the animals and roused them by striking them for some purpose. It does not require much perspicacity to realize what that purpose was: it was to move the animals of which the three persons were in possession and of which they had assumed control-to move them possibly, indeed probably, to the shops of butchers in Buruburu. This latter is of course merely speculative, that is to say, in regard to whether they intended to move the cattle to the butcher's shop; but, quite apart from that possession may be proved by inference from certain facts, and I am quite satisfied that the magistrate was correct in finding possession from the proved facts, as for instance possession was found from the proved facts in the case of Rex v. Gulam Hussein Jamal reported in 8 E. A. C. A. 44

The accused, therefore, were found in recent possession of stolen animals. They made no attempt to offer an explanation of their possession; they merely denied possession. In my opinion, the appellants were correctly convicted; their sentence is not excessive, and their appeals must therefore be dismissed.