Geradi v. R. Crim. App. 364-M-71; 21/1/72; El-Kindy J.

 Geradi v. R. Crim. App. 364-M-71; 21/1/72; El-Kindy J.

The appellant, a Kenyan, was convicted of stealing c/s 265 of the Penal Code.

The evidence, which the trial court accepted, showed that the appellant was a friend of PW. 3, who was a brother in law of the complainant P.W. 2. It was alleged that the appellant and PW.3 regularly took their meals at the house of P.W.2 although the appellant totally denied this. P.W 3 was aware that P.W. 2 was keeping Shs. 3,000/= in  tin in her house, but neither P.W. 3 nor the appellant knew the exact spot the money was kept. P.W. 2 said that she buried the money in the ground next to her bed, but it is not clear whether P.W. 3 and the appellant took their meals in the same room. It appears that the complainant wanted to supply money to P.W.3 so that it may be sent to her husband. When she checked her hiding place on the 3^rd December, 1970, she found the tin empty and money missing. It happened that the appellant disappeared on this same day. It appears that in the evening of the same day, the appellant decided to go back to Kenya by ship. When he was on board the ship, P.W.3 and police constables went to him and took him off the boat. As he was getting off the boat, his suit case fell into the lade, but it was retrieved by a Police Inspector P.W. 7. The police officer P.W. 1 and P.W.3 implied that the appellant had deliberately thrown his suitcase into the water, but the appellant said that it had accidentally fallen into the water. From his suit case, a sum of Shs. 543/05 was found and the appellant claimed that the money was his and explained how he came to earn it. Apart from what is stated above there was no other circumstantial evidence to connect the appellant with the theft of the alleged Shs. 3,000/= the learned trial magistrate found that the evidence was adequate for convicting him for theft. The learned magistrate was influenced by the fact that (a) the appellant gave a confused account as to how he came to earn the money he was found with and (d) that the appellant did not produce witnesses to “support his alibi”.

            Held: “As it can be seen, the case against the appellant was based entirely on circumstantial evidence. Such evidence should show that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that

Of guilt – (see Simon Musoke v. R. (1958) E.A. p. 715 and R. v. Kipkering Arap Koske and Nor. (1949) 16 E.A.C.A. p. 135) and that it is for the prosecution to prove this. Can it be said that the evidence, in this case, satisfied this test? ……. The evidence did not satisfy this test. It simply raised suspicion which is not even strong enough in my view.” (2) “Considering the defence, the learned magistrate criticized the appellant for not supporting his alibi. He had no such duty in law and therefore it was a misdirection on the £part of the learned trial magistrate to require the appellant to support his alibi as if he was required to prove his alibi beyond reasonable doubt”. (3) Appeal allowed conviction quashed.