Omboko V Republic  EKLR
|Criminal Appeal 130 of 1983||09 Dec 1983|
Zakayo Richard Chesoni, Harold Grant Platt, Alan Robin Winston Hancox
Court of Appeal at Kisumu
Omboko v Republic
Omboko v Republic  eKLR
Omboko v Republic
Court of Appeal, at Kisumu December 9, 1983
Hancox JA, Chesoni & Platt Ag JJA
Criminal Appeal No 130 of 1983
Appeal - criminal appeal - second appeal - concurrent findings of fact of two lower courts - effect on second appeal - matters which may be considered on second appeal - whether length of sentence a matter for consideration on second appeal.
Sale of goods - seized goods - goods seized under Customs and Excise Act (cap 472) - sale by private treaty - conditions under which such goods can be sold by private treaty - Customs and Excise Act (cap 472) section 34 - stolen goods - goods sold to innocent purchaser - whether such goods to be restored to original owner or to purchaser where offender has been prosecuted - Sale of Goods Act (cap 31) section 25(1) - Criminal Procedure Code (cap 75) section 178.
Criminal law - theft of goods - goods seized and held under the Customs and Excise Act (cap 472) section 34 - status of such goods upon conviction of offender - whether such goods can be sold by private treaty – whether sale of such goods to an innocent purchaser valid.
The appellant was employed within the Public Service as a warehouse keeper. He was charged with fraudulent false accounting under section 280 of the Penal Code in relation to the theft of goods which had been seized and stored by the Customs and Excise Department. The appellant was convicted in a magistrate’s court and his appeal to the High Court was unsuccessful. The concurrent findings of the two courts had been that the appellant, along with other accomplices, had arranged for the private sale of the goods to a Mr Patel and omitted to make the appropriate entries in the warehouse seizure register in relation to those goods. Mr Patel, whose evidence was also treated as that of an accomplice, had been given an official receipt for only part of the agreed price, which was below the market value of the goods. Soon after the dismissal of the appellant’s second appeal, an application was made in the case before the trial magistrate for the release of the goods to Mr Patel. The magistrate allowed the application, holding that the goods had been purchased by Mr Patel.
Among the issues to be decided by the Court of Appeal on the appellant’s second appeal was whether this development affected the findings of fact against the appellant and hence his conviction. The validity of the magistrate’s order on the application, however, was not directly put before the court.
1. Where stolen goods have been sold to an innocent purchaser and the offender prosecuted and convicted, section 25(1) of the Sale of Goods Act (cap 31) and section 178 of the Criminal Procedure Code (cap 75) permit the restitution of those goods to their original owner and not to the person who had purchased them. The property in the goods remained in the government throughout and the subsequent release of the goods to the purchaser by order of the court, which was in any case incorrect, did not affect the position of the appellants.
2. A sale by private treaty of seized goods under the Customs & Excise Act (cap 472) is permitted only if:
a) the goods are of a perishable nature, or animals; and
b) it is done with the authority of the Commissioner of Customs. As none of these conditions had been satisfied, the appellant had no power to make the sale.
3. As a general rule, the Court of Appeal sitting on a second appeal will not disturb the concurrent findings of fact of two lower courts.
4. The length of a sentence is not a matter that may be considered by the Court of Appeal on a second appeal.
No cases referred to.
1. Sale of Goods Act (cap 31) section 25(1)
2. Penal Code (cap 63) section 280
3. Criminal Procedure Code (cap 75) section 178(1), (3), (4)
4. Customs and Excise Act (cap 472) section 34
J Ndegwa for Respondent