Kimbuga v. R. Crim. App. 255 & 273-D-7; 12/6/70; El-Kindy, Ag J.

Kimbuga v. R. Crim. App. 255 & 273-D-7; 12/6/70; El-Kindy, Ag J.

The two appellants were jointly charged, and convicted of shop-breaking and stealing c/s 296(1) of the Penal Code. The evidence which was accepted by the trial court showed that the shop of the complainant was broken into and various items were stolen. On information received, the two appellants were arrested, and when searched, were found in possession of some new items which the complainant suggested that they resemble the ones stolen from his shop. The appellants claimed the items were there and a witness was called forth to testify. The trial magistrate did not accept the evidence of the appellants, or that of the witness. Retrial Magistrate after reviewing the evidence also found as a fact that one appellant was the guest who was housed by one Adrian in whose house a suit case containing items of new clothing was found.

            Held: (1) “It will be seen therefore that the case against the two appellants depends on the identification evidence of the goods alleged to have been found in possession of the two appellants. The learned trial magistrate was well aware of the problem, but in considering the conflicting claims to the property, he preferred the evidence of the complainant to that of the two appellants because, to quote him, “I choose to be lieve the complainant”. I think this is misdirection. It is not a question of choosing to believe one side as against the other, as if it were a case of determination of right in civil cases. It was a question of the prosecution proving beyond reasonable doubts that the goods found with the appellants were those of the owner. It appears that the leaned magistrate was equalizing the burden of proof – something which he could not do in a criminal case. He was well aware that the complainant could not have any marks on which he could substantiate his claim to the goods, as he claimed them merely on the basis that they “appeared” like those stolen from his shop …… (2) “If such was nature of evidence for identification, then the case against both appellants had not been proved beyond reasonable doubt. I may interpose here and say that it does not appear from the record that the proper procedure for identification of shop goods was followed as it was laid in the case of NASSORO s/o MOHAMEDI v. R. 1967 H.C.D. No. 446. If this procedure had been followed, it might have assisted the prosecution to make up their mind, on the evidence of the complainant, whether it was worth at all to continue with their case in this case where the appellants were also claiming part or all of the goods …..” (3) Appeal allowed. Convictions quashed and sentences set aside.