R. v. Ndesario s/o Yose Kaaya, Crim. Rev. 13-A-68, 9/4/68, Platt J.

R. v. Ndesario s/o Yose Kaaya, Crim. Rev. 13-A-68, 9/4/68, Platt J.

Accused was convicted of theft. [P.C s. 265]. There was evidence that a water furrow traverses complainant’s shamba. Accused had no water right, but by a gentlemen’s agreement he was permitted to take water from the furrow between 6 a. m and 9 a.m. It was charged that accused had taken water during the night and used it for irrigation. The conviction was quashed for insufficient evidence.

            The Court stated, obiter; (1) So long as fluid such as water can be sufficiently appropriated to the user, it can be stolen. [Citing Archoold, Criminal Pleading Evidence and Practice, 36^th edn., para. 1532 and authorities cited therein, which held that water supplied by a water company to a consumer and standing in his pipes may be the water passing over his farm, and for accused to extract water except during the permitted hours and to use it for irrigation would be to take a moveable object which did not belong to him with the intent to permanently deprive the holder of the right of it.