Facts
The appellant was convicted of being found in possession of a radio which was reasonably suspected of having been stolen and he was sentenced to fifteen months’ imprisonment and twelve strokes. Thecase against the appellant was that he offered the radio for sale to one Fabio Ibwatt for Shs. 450/-. The appellant told Ibwatt that he had bought the radio and had a receipt for it and the appellant’s companion confirmed that the radio belonged to the appellant. Ibwatt then left the appellant and reported the offer of sale to Det. Const. Obuku, on the ground that he had come to the conclusion that the radio was stolen. Obuku went back with Ibwatt to the appellant and asked that the appellant produce the receipt given to him when he bought the radio. The appellant stated that the receipt was at his home and Obuku went with the appellant to his house to search for the receipt. The appellant was unable to find the receipt and Obuku then arrested him on the ground that he suspected that the appellant had stolen the radio. During the trial, the appellant was cross-examined as to a previous conviction and the magistrate relied on this evidence as showing that the appellant was an unreliable and worthless witness.
Held –
(i) a mere failure to produce a receipt could not in itself afford a reasonable ground for suspicion that the radio was stolen;
(ii) the explanation offered by the appellant that he had bought the radio in Kisumu was sufficiently reasonable to have warranted its acceptance as satisfactory.
(iii) the magistrate wrongfully admitted and relied upon the evidence of the appellant’s previous conviction.
(iv) the admission of this evidence was sufficiently prejudicial to occasion a miscarriage of justice.
(v) the sentence of imprisonment and corporal punishment was incompetent as the maximum
penalty for the offence under s. 24 of the Penal Code is two years’ imprisonment.Appeal allowed. Conviction and sentence quashed.
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