Morjaria v. R. Crim. App. 64-N-71; 15/10/71; Duffus, P. Lutta & Mustafa JJ. A.

Morjaria v. R. Crim. App. 64-N-71; 15/10/71; Duffus, P. Lutta & Mustafa JJ. A.

The appellant was convicted of handling stolen goods c/s 322(2) of the Kenya Penal Code. it was established that the Nakuru industries Ltd. hired a lorry to transport 76 bales of blankets and 27 boxes of suiting materials. The lorry was duly loaded and the driver, one Mugo drove it out of the factory gates to a laundry called “Fellows”. There the driver met Kiare to whom he suggested that he wanted to sell the goods in the lorry. Then both of them went to one Shah and offered him the goods for sale. Shah brought the appellant who agreed to buy part of the goods. The appellant then directed Mugo to drive the lorry to appellants’ store in Nakuru but since there was not enough space, the goods were off loaded at three different places as directed by the appellant. Throughout this time appellant was accompanied by Shah and his son, Dilip in his pick-up. Before the driver Mugo drove off with the balance of the goods. The appellant paid him Shs. 8,400/= in cash-part of the money obtained by Cashing a cheque with Shah. For the appellant it was contended that the phrase “otherwise than in the course of stealing” was an element in the offence of handling and as such it had to be proved that the appellant did not receive the goods in the course of stealing. Secondly it was argued that there were at least a single count of stealing was bad in law and lastly it was argued that there was misdirection on accomplice’s evidence and on the issue of corroboration.

            Held: (Mustafa J. A.): (1) “In respect of the offence of handling stolen goods contrary to section 322 of the Penal Code the person who receives such stolen goods must do so after the said goods have been stolen (in terms of submisection 3(a) of section 322) by another party and the person him self must not be connected with the stealing or assists in stealing such goods he cannot be guilty of handling; he can only be guilty of theft. The role a person plays in the way the obtains the goods is of paramount importance. Has he obtained the goods in the course of stealing them, or has he obtained them from somebody or some place, after the goods have already been stolen? For a person to be convicted of handling by way of receiving the prosecution must en has not obtained possession of or received the goods as a result of his role and conduct as a thief, but as a dishonest receiver or possessor of such stolen goods. That, in our view, is what the phrase “otherwise than in the course of stealing” essentially means. Applying that test to the facts as found by the trial magistrate in this case, can it be said that the appellant could have received the goods “in the course of stealing”, that is, did the appellant at any stage steal or assist in stealing such goods? We do not think so. The driver Mugo was entrusted with the goods to be transported to Ksumu and 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 was then standing in the owner’s shoes in relation to the goods and exercising an owner’s right. Mugo had then already converted the goods to his own use and since he had acted dishonestly he had committed the offence of stealing, see section 268(1) of the Penal Code. In this case mugo sold the goods, but it would not have mattered even if no sale had taken place. The offence of stealing was complete.” (2) “Mr. Kapila has submitted that there were at least three separate and distinct offences of receiving and a single count of receiving was bad in law. We see no merit in this submission. 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 “all these acts of receiving formed part of the same transaction and were properly charged in one count”. We agree with that conclusion. The off loading of the goods at three different points in three different lot was merely the mechanics employed in taking he good off the lorry for convenience of storing and to avoid detection and was part of the same transaction and formed one offence. There was no duplicity in the charge and no prejudice or embarrassment could have been caused to the appellant.” (3) “The trial magistrate clearly accepted the evidence of Dilip and believed fully what he said. Dilip’s complicity in the matter was mild and passive, and his testimony would not require the same amount of corroboration as that of a person who was actually concerned in the offence itself, see R. v. Wanjera (1944)  11 E. A. C. A. 93 at 95. Is there any corroboration of Dilip’s evidence? We are satisfied there is, there is the evidence of Ramniklal Shah from whom the appellant obtained Shs. 2,900/= at

1. 30 in the morning, a most unusual hour for such a transaction. Dilip ha said that the appellant had brought back Shs. 2, 900/= from Ramniklal Shah and that this sum former part of the sum of Shs. 8,400/= that the appellant gave to the driver Mugo. There is again the letter Ex. P. 5 which the appellant addressed to Dilip’s father Shah and which Dilip received. That letter referred to an alleged loan of Shs. 17,000/= given by the appellant to Shah. The trial magistrate found that the signature of evidence do not offer strong corroboration, but are, in our view, sufficient to corroborate Dilip’s testimony because Dilip’s complicity was so slight.” (4) Appeal dismissed.