Wakilii

Rex v Ndmaywa and Another (Criminal Appeals Nos. 207 and 246 of 1948 Consolidated)

East African Court of Appeal · [1948] EACA 70 · 1948 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated criminal appeals from conviction for burglary and theft
Decision
First appellant acquitted and discharged; second appellant's conviction upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal quashed the conviction of the first appellant (Elijah s/o Ndmaywa) on grounds of insufficient evidence, holding that mere presence with an admitted thief when stolen property was sold, without proof of possession, was insufficient to establish participation in burglary. The Court dismissed the appeal of the second appellant (Kiarie s/o Magothe), finding sufficient evidence of participation where he was found wearing stolen property and pointed out the location where stolen goods were hidden. The Court observed that magistrates should avoid using the plural 'they' when recording evidence concerning multiple persons without ensuring it applies equally to each person's acts or words.

Outcome

First appellant acquitted and discharged; second appellant's conviction upheld

Facts

The appellants were convicted of burglary and theft alongside a third accused, John Muthoka, who pleaded guilty. The first appellant (Elijah s/o Ndmaywa) was present on two occasions when John sold stolen property to a shoemaker and a dhobi, but no stolen property was proved to be in his possession. The second appellant (Kiarie s/o Magothe) was found wearing a stolen hat and, in company with John, pointed out a location on an estate where the bulk of stolen property was hidden. The appellants challenged their convictions on appeal, with the first appellant arguing insufficient evidence of participation and the second appellant contending that only John, not he, had pointed out the hiding place to police.

Issues

  1. Whether the evidence was sufficient to sustain the conviction of the first appellant for burglary and theft.
  2. Whether the evidence was sufficient to sustain the conviction of the second appellant for burglary and theft.
  3. Whether the use of the plural pronoun 'they' in recording evidence concerning multiple accused persons was proper practice.

Orders

  • Appeal of the first appellant (Elijah s/o Ndmaywa, original accused No. 2) allowed.
  • Conviction of the first appellant quashed.
  • First appellant ordered to be set at liberty forthwith.
  • Appeal of the second appellant (Kiarie s/o Magothe, original accused No. 1) dismissed.

Rules and key headnotes

Criminal Law & Procedure — Burglary and Theft — Sufficiency of Evidence — Mere Presence with Admitted Thief
Mere presence in the company of an admitted thief on occasions when stolen property is sold, without proof that the accused was ever in possession of any stolen property, is insufficient evidence to sustain a conviction for burglary and theft.
Criminal Law & Procedure — Burglary and Theft — Participation — Possession of Stolen Property and Pointing Out Hiding Place
Where an accused is found wearing stolen property and subsequently points out to police the location where the bulk of stolen goods are hidden, there is sufficient evidence from which a court may infer participation in the burglary.
Evidence — Recording of Evidence — Use of Plural Pronouns — Multiple Accused
A magistrate should always be on guard when recording evidence concerning more than one person to refrain from using the word 'they' without making sure from the witness giving such evidence that it applies equally to the acts or words of each person to whom the witness is referring.

Full judgment

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

Rex v Ndmaywa and Another (Criminal Appeals Nos. 207 and 246 of 1948 Consolidated) [1948] EACA 70 (1 January 1948)
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.