John s/o Ogutu v. R. Crim. App. 319-A-70; 12/3/71; Bramble J.

John s/o Ogutu v. R. Crim. App. 319-A-70; 12/3/71; Bramble J.

The appellant was convicted of being in unlawful possession of Moshi c/s 30 of the Moshi (Distillation and Manufacture) Act 1966 and sentenced to two years imprisonment. Two prosecution witnesses testified that they had experience of such cases for years and that the tin contained moshi because of the smell. The appellant admitted that “the tin contained pombe’.

            Held: (1) “The question of experience is for the court to find on the evidence adduced. There is no evidence as to the nature and field of the experience from which the court could make a finding of fact. If a witness relies on smell for his identification he must state the nature of the smell and reasons why he came to the particular conclusion [Gatheru s/o Mjangwa v. R. (1954) E. A. C. A. p. 384 followed].” (2) Appeal allowed and conviction quashed.