R. v. Kiilu Ngola and another, Crim. Sass. 29-A-69, 8/10/69, Platt J.

R. v. Kiilu Ngola and another, Crim. Sass. 29-A-69, 8/10/69, Platt J.

The accused and another were jointly charged with the murder of a shop-keeper, who was hacked to death in the course of a robbery in his shop on 22 September 1969. The case against the second accused was weak and will not be considered. The case against the first accused, Kiilu Ngola, rested entirely on the fact that he was found in possession of some of the property stolen from the shop on 19^th October 1969 about 27 days after the robbery. Kiilu’s explanation was that he had found the articles hidden in the bush on 4 October 1969, about 11 days after the theft. Another witness testified that the accused had brought the articles home sometime in September. Still another witness said that he accused had brought them home sometime around 14 October 1969. The court considered both these witnesses as unreliable. It also found that the accused’s explanation of how he obtained possession was unreasonable in the circumstances, and so the presumption arose that he was either the thief or the receiver of stolen property, since he was found in recent possession. The main question concerned which offence he was implicated in, because if he was the thief, it could be deduced that he was also the murderer, while no such deduction could be made if he was merely the receiver.

            Held: “It is easy enough to see the Kiilu was in recent possession of stolen property as far as his being a receiver of it is concerned, but the prosecution alleged, and had to allege, that he was the thief, or one of them. On this question the assessors were directed in terms of the observations of the Court of Appeal in Andrea Obonyo v. R. 1962 E.A. 542, and especially at pages 550-551. Despite the warning, that if they had any doubt that in the circumstances of this case Kiilu might have been a receiver, they were both satisfied that he must have

been the thief of these articles. Being then satisfied that he had had the intention in common with others to use force in prosecuting the offence, and that grievous harm had been inflicted, he was guilty of murder ….. in Kiilu’s case I have anxiously considered his connection with the crime, especially in the light of the observations in Andrea Obonyo. That was a case where the complicity of one accused was held to have been proved, while in that of two others, also in possession within six days of that offence, of clearly identifiable property, the Court of Appeal nevertheless held, that in a case of murder a high degree of proof was necessary, and in the circumstances they are not satisfied that the possibility of receiving stolen property could be excluded. The successful appellants were also persons who had given false statements. I am of course bound to follow the observations and approach of the Court of Appeal. I have to see whether the circumstances of this case are similar to those of the unsuccessful appellant, and distinguishable from those of the successful appellants in Andrea’s case. It is true that the accused Kiilu was found in possession of a radio and a number of very new articles which although transferable as articles of value would nevertheless not be easy to transfer altogether. It cannot be said that hey were articles of no use at all and not transferable for that treason. No effort was however made by Kiilu to transfer these articles and as far as some of them were concerned, he used them quite openly. The facts do not appear to show that Kiilu was necessarily acting like a thief and he had nothing in his possession to connect him directly with the crime. Again the most favourable time limit of 11 days was not extremely recent. Even in Andrea’s case, the Court of Appeal thought that the six days that had elapsed was a sufficient time to admit of some doubt that he successful appellants might have received stolen property. Again other persons were involved, and although his explanation was not true, that went as much to showing that he was in guilty possession as a receiver as to his being the thief. Taking all the circumstances of the case into account, I cannot see that this case is really distinguishable from that of the successful appellant’s inn Andrea’s case. Try as I may, I have not been able to satisfy myself that the possibility that Kiilu was a receiver could certainly be excluded. Other persons were involved and possibly Kiilu was harbouring stolen property. There was probably a good deal more property stolen that he had in his possession. With respect to the assessors, who may have been right, and with some reluctance, I nevertheless feel that the High degree of proof required in a murder case based on evidence such as this, which the Court of Appeal laid down was necessary, has not been established. I cannot say that the irresistible inference from the circumstantial evidence is that Kiilu was one of the thieves and so a participant in this murder.” Accused acquitted.