Patrick v. R. Crim. App. 262-D-71; 10/6/71; Mwakasendo Ag. J.

 Patrick v. R. Crim. App. 262-D-71; 10/6/71; Mwakasendo Ag. J.

The appellant was convicted of being in possess on of property suspected to have been stolen or unlawfully obtained c/s 312 of the Penal Code. a police officer, from information received, obtained a search warrant and searched the house of one Chololoka. In the course of the search a radio was found. Chololoka said that the radio belonged to the appellant. On being questioned the appellant first said that he had bought the radio from one Edison Onyango. He later changed his story thereby arousing the police officer’s suspicious that the radio was either stolen or unlawfully obtained. He was charged before the District Court where the Magistrate not being satisfied with the appellant’s explanation convicted him.

Held: (1) “Section 312 of the Penal Code is a highly technical section which applies only to cases where the possession of the suspected property is “ejusdam generic” with conveying.” (2) “Commenting on the English case of R. v. Fisher 32 N. S. L. T. 23 their lordships [in Regina v. Msengi s/o Abdullah I. T. L. R. 107] observed that it was clear that section 312 of the Penal Code could not apply for example to property found in a building solely as a result of the execution of a search warrant or other similar process.” (3) Conviction quashed.

Editor’s note: This decision appears to be at variance with the decision in Ali Mohamed Hizam v. R. (1970) H. C. D. 200 which implicitly over-ruled Regina v. Msengi s/o Abdullah 1 T. L. R. 107.