NYAMSINDIKA v. R (1972) HCD 22

(PC) Crim. App. 111-M-71; 11/1/72; Kisanga, Ag. J.

The appellant was charged with cattle theft c/ss. 268 and 265 of the Penal Code. Since the owner of the alleged stolen sheep could not be traced, the trial magistrate held that the charge of stealing could not be proved. He, however, convicted the appellant of being in possession of stock suspected of having been stolen c/s 3(1) of the Stock Theft Ordinance and the question on appeal was whether the trial magistrate was entitled to enter the alternative verdict as he did.

            Held: 

(1) “There is no provision either in the Criminal Procedure Code or in the Stock Theft Ordinance which makes it possible for a person charged with cattle theft under the Penal Code to be convicted of being in possession of stock suspected of having been stolen under the Stock Theft Ordinance. Indeed section 8 of the Stock Theft Ordinance provides that where a person is charged with stealing any stock listed under section 268 of the Penal Code he may be convicted of alternative offences under sections 4, 5, 6 and 7 of the Stock Theft Ordinance relating respectively to trespass with intent to steal stock, being found near stock in suspicious circumstances, fences around stock enclosure or cattle boma and offences relating to brands. There is no provision in the Ordinance however that such a person may be convicted under section 3 of the Ordinance of being in possession of stock suspected of having been stolen, and to my mind such an omission was a clear Indication that it was not the intention of the Legislature to provide for an alternative conviction under section 3 of the Ordinance when a person is charged with stealing stock. I am therefore of the view that it was not open to the trial magistrate to convict the appellant under section 3 of the Stock Theft Ordinance when the charge was laid under sections 268 and 265 of the Penal Code.” 

(2) Appeal allowed.