Samson Elias v. R., Crim. App. 768-D-69, 5/12/69, Mustafa J.

Samson Elias v. R., Crim. App. 768-D-69, 5/12/69, Mustafa J.

Appellant was convicted of stealing bicycle and was sentenced to two years’ imprisonment. He now appeals.

            Held: “The appellant’s appeal has no merit at all, as the evidence against him is overwhelming. However, the trial magistrate in dealing with the defence of alibi  states:- “The position at law is that the burden of proof is on the person setting up the defence of alibi to account for so much of the time of the transaction in question as to render it impossible that he could have committed the imputed act. If authority is sought then it can be found in the case of R. V. Chemulan Wero Olango (1937 4 E.A.C.A. 46….. The statement of law is wrong. It is true that that was the proposition as laid down in the case quoted by the learned trial magistrate. However, that has been overruled since by Leornard Aniseth v. Republic (1963) E.A. 206. in the Aniseth case the case of R. v. Chemulan Wero Olango was referred to and discussed and it was held that it was no longer good law. In a defence of alibi, if the evidence adduced raised a reasonable doubt as to the guilt of an accused person, it is sufficient to secure an acquittal. There is no onus on an accused to “prove” anything. However, this misdirection of the trial magistrate has no effect at all on the case as such.” Appeal dismissed.