Francus Atebe Mogere v Republic

High Court, at Kisii March 18, 1993

Patel J

Criminal Appeal No 57 of 1993

(From Original Convictions and Sentences of the Senior Principal

Magistrate’s Court at Kisii in Criminal Case No 4956 of 1990 -

Injene Indeche Esq SRM)

Evidence – burden of proof – where a trial magistrate states that failure by accused to call some witnesses could have worked against him – whether the court had placed the burden of proof on the accused person – whether - the subsequent conviction was proper.

The appellant and his co-accused were jointly convicted of theft of 116 trees contrary to section 275 of the Penal Code. Nyaecha (PW3) an employee of complainant is said to have found the appellant and co-accused cutting down trees on 10th November, 1990. He reported the matter to the complainant’s wife a day after. She neither visited the scene nor went to report to the Assistant Chief, but merely waited for, and reported to the husband on November 15th, 1990. He went and reported to the Assistant Chief, who is alleged was not willing to assist.

The defence of the appellant and the co-accused was that they bought some trees from another person whom they named as Mackenzie. They further stated that one Washington Obiri negotiated the transaction.

Held:

1. There was a gross misdirection in concluding that a written agreement was a must.

2. The learned magistrate gave no place in his judgment part of Janes evidence claiming that some relatives of accused persons agreed to compensate her husband but later changed their minds, but that the possibility that it influenced his mind could not be ruled out.

3. There was a fatal misdirection on the part of the magistrate when he stated that failure on the part of the accused persons to call Mackenzie and Washington had to be construed that their evidence would have gone against them, showed that the learned magistrate placed the burden of proof on the accused persons.

Appeal allowed, and conviction of co-accused quashed.

Cases

No cases referred to

Statutes

Penal Code (cap 63) section 275

Advocates

Nyariki for Appellant

Gumo for Respondent/State