Mopuyan s/o Olendotoo and others v. R., Crim. App. 228-A-69, 7/11/69, Platt J.

 

Mopuyan s/o Olendotoo and others v. R., Crim. App. 228-A-69, 7/11/69, Platt J.

The six appellants were charged with receiving and retaining stolen property and were convicted of those offences. The charged was as follows: - “Offence section and Law: - Receiving stolen property and retaining c/sec. 311(1) and (2) of the Penal Code cap. 16 of the Laws. Particulars of offence: - The persons charged on the 30^th April, 1968 during the night at N.D.C. Ngarenanyuki Area, within the District of Arusha, did receive 19 heads of cattle which were stolen and retained them in their bomas, being the property of N.D.C. of Ngarenanyuki.” (Sic)

            Held: (1) “It will be seen at once that the charge was framed in an irregular fashion for two reasons. First, a charge of receiving stolen cattle is mutually distinct from a charge of retaining stolen cattle. Receiving stolen cattle implies that at the time the property stolen was receive, the receiver

knew that it was stolen property. Retaining stolen property means that at the time the stolen property was received, the receiver did not know it was stolen property, but that sometime later he came to know that it was stolen property, and then retained it in his possession. A person therefore cannot be both a receiver and retained at one and the same time. If the prosecution is not confident whether the evidence will prove the offence of receiving or the offence of retaining, it must charge receiving in the first count and retaining in an alternative count. Unless that is done, the person charged with receiving or retaining in one count may not be able to know what charge it is that he has to face. Therefore, this charge was bad for duplicity, and stood to lead to a nullity unless the irregularity was cureable.” (2) “The second point which I note quickly in passing is that subsection (2) of section 311 of the Penal Code had no relevance whatsoever to this count. What the prosecution alleged, was that the appellants had received retained 19 head of cattle which had been stolen. Section 311(1) of the Penal Code only was in point; but that irregularity clearly caused no difficulty.” (3) “A party from these two obvious mistakes in the charge, a further difficulty arose, in that all six appellants were charged jointly of one offence of receiving 19 cattle. That was never the case put forward by the prosecution. What was said was that each of the appellants had separately received some of the cattle and kept them in their bomas. So it was said that three cattle were found with Mopuyan, four cattle were fund with Nina, six with Nelema, three with Naiterenga, and two with Ndoye and one with Kiyaani. Therefore, they all ought to have been charged separately, although it may well have been suitable to join the separate counts in one charge.” (4) Conviction quashed for five appellants who were convicted on their own pleas. Conviction confirmed for appellant who plead not guilty and was convicted after trial, as irregularities in the charge did not cause any failure of justice.