Simjana s/o Nteli and Another, Crim. App. 154-A-69, 19/8/69, Platt J.

Simjana s/o Nteli and Another, Crim. App. 154-A-69, 19/8/69, Platt J.

The appellants asked for water at the complainants’; and upon drinking the water they were given, began to vomit. The complainants, who were suspicious because of recent cattle robberies, detained the complainants. They were then charged with and convicted of “trespassing at a cattle boma with intent to steal, contrary to section 4(1) (a) (b) of the Stock Theft Ordinance, Cap. 422, and sentenced to the relevant Minimum Sentences.

Held: (1) Sub-section (a) of S. 4 (1), Stock Theft Ordinance provides for trespass by unlawful entry with the intent to steal, while sub-section (b) provides for the trespass of unlawfully remaining upon land or a cattle boma with the intent to steal. The two sub-sections provide for mutually exclusive offences and cannot therefore be charged together in one count. If it is not clear which offence will finally emerge from the evidence, the offences ought to be charged in the alternative. Thus the first count may charge unlawful entry, while in the alternative the accused may be charged with unlawfully remaining upon land or cattle boma. (2) The conviction cannot be supported because it is doubtful if either of the types of trespass charged were proved. It is clear that there was no initial trespass for the accused. (3) Appeals allowed.