John s/o Mtandara v. R., Crim. App. 448-M-68, -/-/68, Seaton J.

John s/o Mtandara v. R., Crim. App. 448-M-68, -/-/68, Seaton J.

Accused was convicted of unlawful possession of moshi [Cap. 77 s. 36(1)(2); G.N. 228/41]. He was found in the company of the co-accused (who was convicted but did not appeal), who was carrying a Fanta bottle on-quarter filled with a liquid subsequently identified as moshi Both men’s breath smelled of moshi. When the law officers attempted to arrest the men on a charge of possessing moshi, accused produced a knife and attempted to stab them. The co-accused were then one or two paces apart.

            Held: (1) It is not a necessary conclusion that accused must have been in possession of the bottle of moshi, merely because his breath smelled of it and he attempted to defend his companion and himself from arrest; therefore, the accused must be given the benefit of the doubt. (2) The interpretation of “possession” in section 5 of the Penal Code, which is wider than the common law definition, includes “joint possession”, but applies only to the Penal Code. [Citing Kaman s/o Njerage v. R., (1954) 21 E.A. 257]. Therefore, to establish joint possession of the bottle, there must be evidence that accused had a power of control over his companion who had actual possession. Conviction quashed.