Gitarey v. R. Crim. App. 239-A-70; 22/2/71; Kwikima Ag. J.

Gitarey v. R. Crim. App. 239-A-70; 22/2/71; Kwikima Ag. J.

The appellant was convicted of two counts of shop breaking and stealing c/ss 296(1) and 265 of the Penal code. He was arrested on suspicion and found in possession of shirts and trousers. His conviction was based on the identification of the complaints of their clothing. One stated in evidence that he saw some “Flamingo” shirts at the police when the appellant had been detained and that: “I know these are my shirts because there is no shop which sells “Flamingo” and these were bought from Moshi.” The other stated: “If I am shown the clothes I can identify them.” The issues on appeal were (a) whether the clothes seized from the appellant had been identified sufficiently by the purported owners; (b) where the doctrine of recent possession applied.

            Held: (1) “The proper procedure where the accused claims the goods to be his property is to ask the complainant in court to describe the goods before being shown them as per Nassoro Mohamed v. R. 1967 H. C. D. 446. It is also necessary to itemize in the charge the goods stolen. This was held in the same case. in the present charge the appellant was merely alleged to have stolen “13 shirts” from faru and “various clothes valued at Shs. 1,359/- from Obed. Furthermore, it is not sufficient for a complainant to describe his stolen property by the manufacturer’s brand like “flamingo” or “Gossage” because, as PW 1 rightly stated, “these can bought by anybody from any (shop). It will not do to identify them by the colour of the material either. Special marks or features must be given, as per Bawari s/o Abedi v. R. 1967 H. C. D. 11”. (2) “In the absence of sufficient identification the trial court could not invoke the doctrine of recent possession as it impliedly did in this case.” (3) Appeal allowed, conviction quashed.