Mansukh N. M. Norjaria v. R. E. A. C. A. Crim. App. 64/71; 15/10/71; Mustafa J. A.

Mansukh N. M. Norjaria v. R. E. A. C. A. Crim. App. 64/71; 15/10/71; Mustafa J. A.

            The appellant was convicted of handling stolen goods c/s 322(2) of the Kenya Penal Code. The Nakuru Industries Ltd. hired a lorry belonging to Bahati Transporters to transport 76 bales of blankets and 27 boxes of suiting material to customers in Kisumum and Kisii. The driver one Mugo drove it out of the factor gets and went to one Shah and offered to sell him the goods. Shah brought the appellant who agreed to purchase half the goods for Shs. 24,000/-. Eventually the appellants paid Shs. 18,400/= and on his instructions a quantity of the goods was off-loaded at three different places. The advocate for the appellant argued that the prosecution had to prove that he appellant did not receive the goods in the course of stealing and that if the appellant received the goods during acts which were in the course of stealing, he could not be convicted of handling, but only of theft.

                        Held: (1) “We do not accept the view that the phrase “otherwise than in the course of stealing” imports a new element or ingredient tin the offence of handling by way of receiving. It has long been the law that a thief of stolen goods cannot be convicted as receiver ………… the driver Mugo was clearly a bailee of the goods. When Mugo offered to sell the goods to the appellant, Mugo had determined in his own mind to sell the goods for his own benefit contrary to the terms of the bailment ………. Mugo had then already converted the goods to his

            own use and since he had acted dishonestly he had committed the offence of stealing. [Rogers v. Arnott (1960) 2 Q. B. 244 cited with approval]. In this case we are satisfied that the theft was at any rate complete when the driver Mugo offered to sell some of the goods in the lorry to Shah and the appellant.: (2) “Since we have found that the stealing was complete when Mugo made the offer, all subsequent activities in relation to the goods by the appellant could only relate to the offence of handling by receiving and not to any activities related to stealing or ‘in the course of stealing’.” (3) “Mr. Kapila has submitted that there were at least three distinct and separate offences of receiving and a single count of receiving was bad in law ………… After the offer was made by Mugo and accepted by the appellant the evidence adduced showed that the appellant directed Mugo’s lorry to his own store to off load the goods. It appeared that there was insufficient space for the lorry to get into the compound. As a result the goods were off-loaded at three different places in three different lots. The High Court on first appeal had held that ‘all these acts of receiving formed part of the same transaction and were properly charged in one count.’ We agree with that conclusion.” (4) “[W]e thinks that the trial magistrate had directed himself correctly on the onus of proof. It is true that the trial magistrate had used the words “Where a prima facie case has been made out, an accused person remains silent at his peril”. However there is not the slightest indication that the trial magistrate inferred from such silence the appellant’s guilt.” (5) “An accomplice has to a larger or lesser degree participated in the crime, and his evidence is suspect. If his evidence is disbelieved, that is the end of the matter. Indeed if the evidence of an independent witness is disbelieved, that would be the end of the matter too. However, if the evidence of an accomplice is believed then further stages set in. a court would then normally look for corroboration of the accomplice evidence. Such corroboration would have to be found in other independent evidence on a material particular linking the accused with the offence. The court would then decide whether the accomplice evidence supported by corroboration is sufficient to sustain a conviction. That of course would depend on the background and circumstances in each case. Or there may be no corroborative evidence available. In such an event the court will have to decide whether to reject the accomplice evidence or whether it is one of those exceptional cases where the accomplice evidence is so cogent and reliable that the court would after warning itself, be prepared to base a conviction on it.”