Francis s/o Kanyuka v. R.,Crim. App. 191-M-68, 24/5/68, Seaton J.

Francis s/o Kanyuka v. R.,Crim. App. 191-M-68, 24/5/68, Seaton J.

Accused was convicted of theft by public servant. At some time during the course of tax collections in which accused and several others were engaged, the key to accused’s cash box was lost; subsequently, a sum of money was discovered to be missing. The magistrate refused accused’s request to  call as a defence witness a person who had already testified for the prosecution; he also directed himself that it was for accused to show that the cash box had seen tempered with by someone other than himself.

            Held: (1) “Even if the learned magistrate was disinclined to call P.W. 5 as a defence witness … it would not have been improper …. To have himself recalled P.W. 5 to elaborate on the circumstances in which the cash box key had been lost and the money stolen.” [Citing Rev. Deria Hussein Dolbahanta Juma Said v. R., 20 E.A.C.A. 181] (2) As for the showing required of accused, “all that was necessary was that the possibility of tampering (by someone other than accused) could have been reasonably inferred from the evidence”. Conviction quashed.