Wakilii

Bukenya v Regina (Criminal Appeal No. 1 of 1952)

East African Court of Appeal · [1952] EACA 235 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court of Uganda which had substituted a conviction for receiving stolen property for the original storebreaking conviction
Decision
Appellant acquitted and discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that while the High Court had power under s.333(1)(a)(ii) Criminal Procedure Code to substitute a conviction for receiving where the original charge of storebreaking included theft, the facts did not support such conviction. Proof of possession is essential for receiving stolen property, and where exclusive possession remains with the thieves and the accused never acquired actual or constructive possession, a conviction for receiving cannot be sustained. Appeal allowed, conviction quashed.

Outcome

Appellant acquitted and discharged

Facts

The appellant, a transporter, was convicted with four others of storebreaking and theft. He was engaged by a co-accused to move items from Kimaka. At approximately 6.30 p.m., he drove his lorry to a European housing estate where three co-accused loaded eight heavy boxes containing stolen nails. The first accused told the appellant the boxes were his property, but the appellant admitted he did not believe this. He then drove the lorry with the boxes and three co-accused to the house of the third accused, where the boxes were unloaded. He was paid 15 shillings for hire. The High Court set aside the storebreaking conviction and substituted a conviction for receiving stolen property, which the appellant appealed.

Issues

  1. Whether the High Court on appeal could lawfully substitute a conviction for receiving stolen property for a conviction of storebreaking and theft.
  2. Whether the facts proved supported a conviction for receiving stolen property with guilty knowledge.
  3. Whether proof of possession is essential to sustain a conviction for receiving stolen property.

Orders

  • Appeal allowed.
  • Conviction quashed.
  • Sentence set aside.
  • Appellant to be set at liberty forthwith.

Rules and key headnotes

Criminal Procedure — Appellate Powers — Substitution of Convictions
Where it is open to a trial magistrate to find an accused not guilty of one offence but guilty of another under the Criminal Procedure Code, the High Court on appeal may alter the finding and substitute a conviction for that other offence under s.333(1)(a)(ii) of the Uganda Criminal Procedure Code.
Criminal Procedure — Alternative Convictions — Storebreaking and Theft
A charge of breaking and entering and committing a felony therein charges two offences and is not duplicitous. Where one of the offences charged is stealing, it is competent for the court to convict of receiving under s.188(1) of the Uganda Criminal Procedure Code, notwithstanding that the accused was not charged with receiving.
Receiving Stolen Property — Essential Elements — Possession
Proof of some form of possession is essential to sustain a conviction for receiving stolen property with guilty knowledge. Where the exclusive possession of stolen goods remains in the thieves and the accused never acquired actual or constructive possession, control, or any property interest in the goods, a conviction for receiving cannot be sustained.
Criminal Procedure — Sentencing — Co-accused as Prosecution Witness
Where an accused pleads guilty and is to be called as a witness for the Crown against a co-accused, it is desirable to sentence him before proceeding with the trial of his co-accused, as his evidence may be affected by his anticipation of the likely effect of his testimony on his own sentence.

Legislation cited (8)

  • Uganda Penal Code s.283(1)
  • Uganda Penal Code s.298(1)
  • Uganda Penal Code s.376
  • Uganda Penal Code s.377
  • Uganda Criminal Procedure Code s.180(2)
  • Uganda Criminal Procedure Code s.188(1)
  • Uganda Criminal Procedure Code s.333(1)(a)(ii)
  • Uganda Criminal Procedure Code s.328

Cases cited (9)

  • Rex v Robert Ndecho and Another (Criminal Appeals Nos. 33 and 34 of 1951)
  • Rex v. Hungerford, 2 East P.C. 518
  • Rex v Stanley Njeroge [1947] 22 KLR 42
  • Rex v. Withal, I Leach 58
  • Rex v Watson [1916] 2 KB 385
  • Rex v Wiley (1850) 4 Cox CC 414
  • Hawes v Edwards [1949] WN 206
  • Rex v Berger (1915) 11 Cr App R 72
  • Rex v Payne (34 Cr App Rep 43)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bukenya v Regina (Criminal Appeal No. 1 of 1952) [1952] EACA 235 (1 January 1952)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.