Page 807 of [1957] 1 EA 801 (SCZ)

before a kadhi,” with which question it is, in the event, not necessary to deal. But since I have found that
it has not been satisfactorily proved that the deceased ever approved the draft, or indeed ever even saw it,
and since according to Rashid’s own evidence the deceased desired to see it with the object of approving
it if it correctly gave effect to his oral instructions, it cannot possibly be held that it necessarily
represented his final testamentary intentions or that, had he lived, he might not have altered it. The legal
position is stated very clearly in the judgment of Seth, J., in the Indian case of Chunna Kunwar v. Rasili
Kunwar (2)(1949), A.I.R. All. 655, a decision which reviewed most of the earlier decisions and which
concerned the validity of a Hindu will made in 1914 when the Hindu law regarding the execution of wills
was the same as the Muslim law (vide para. 12 of the judgment, at p. 658). The following passage from
para. 15 of the judgment is very much in point:
“Even where a testator might have desired to execute a more formal document later, his intentions already
declared whether orally (where an oral will is permissible) or in a less formal document, may be treated as his
will, but only if it is proved that the testator intended the oral declaration or the writing to be enforced after
his death in the absence of a more formal document, intended to be executed in future. We consider that a
mere draft, which the testator never intended to be treated as his will in the absence of a more formal
document, cannot be admitted to probate, merely because the court feels satisfied that if the testator had lived,
he would have executed a will in the terms of the draft that he had prepared or got prepared. We are thus
unable to concur in the view that every draft of a will can be treated to be a will where no formalities are
required for its validity.”

For these reasons I hold that the draft will, exhibit (1), does not constitute a valid will of the deceased
and cannot therefore be admitted to probate. The counterclaim is therefore dismissed with costs. The
plaintiff’s claim will be allowed with costs and letters of administration of the deceased’s estate will be
granted to the plaintiff as prayed.
Order accordingly.

For the plaintiff:

TJ Inamdar QC, SJ Inamdar and RL Patel
RL Patel, Zanzibar

For the defendant:

KS Talati
Wiggins & Stephens, Zanzibar

Kuria Wagachira v R
[1957] 1 EA 808 (SCK)

Division: HM Supreme Court of Kenya at Nairobi

Date of judgment: 6 November 1957
Case Number: 340/1957
Before: Sir Kenneth O’Connor CJ and Rudd J
Sourced by: LawAfrica
 Sourced by: LawAfrica

[1] Arrest – Search – Police constable’s power – Suspicion of possession or conveying anything stolen
or unlawfully obtained – Criminal Procedure Code, s. 25 (K.).
[2] Criminal law – Forgery – Alteration without authority – Document purporting to be what in fact it
was not – Evidence that forgery committed within jurisdiction vital – Criminal Procedure Code, s. 343
(K.).

Editor’s Summary
The appellant who was pushing a trade bicycle in the street was stopped by a police constable who was a
member of cycle squad and on checking the number found that it had been altered. It was alleged that the
appellant said that the bicycle was his and produced a cash receipt in his name in ink for a bicycle and on
which was printed the name of The Cycle Mart & Exchange. It was also alleged that the appellant later
said that the cycle belonged to his brother who was in detention. The police constable took the appellant
to The Cycle Mart & Exchange who confirmed that the cash sale receipt had been completely altered and
that it was originally made out in pencil for a “Ding-Dong” bell. On the way to the police station the
appellant gave the police constable Shs. 10/- and asked him to release him. The police constable took the
money and handed it to a police inspector at the police station. The appellant was accordingly charged,
convicted and sentenced to a total of twenty-one months on four counts, viz. (1) conveying suspected
stolen property, (2) forgery of a cash sale receipt, (3) uttering a false document, and (4) official
corruption. He appealed against his conviction on all four counts and contended that the police constable
had no reasonable grounds for suspecting that the bicycle was stolen or unlawfully obtained and the
constable was therefore not acting under s. 25 of the Criminal Procedure Code the relevant portion of
which reads as follows:
“25 (1) Any police officer, or other person authorized in writing in that behalf by the
Commissioner of Police, may stop, search and detain–
......
(c) Any person who may be reasonably suspected of having in his possession or
conveying in any manner anything stolen or unlawfully obtained.”
The appellant further contended that in order that s. 25 may apply it is necessary that the police officer
should not only stop, but must also search and detain the person suspected and that reasonable grounds
for suspicion must exist at the time that the person is stopped. The other ground of appeal were that the
appellant gave a satisfactory explanation supported by documentary evidence of his possession of the
bicycle; that there was no evidence before the trial magistrate that the receipt was either made or altered
without authority; that there was no evidence before the magistrate that the receipt was forged by the
appellant in Kenya within the jurisdiction of the court of trial and that there was no evidence that it was
forged on May 30, 1957, as charged, or that the appellant uttered it in Kenya knowing it to be false.
Held–
(i) the police constable had grounds for suspicion of a large number of the persons who used cycles
and there was nothing to show that he stopped people indiscriminately;
(ii) it is not necessary for the police officer to go through every stage of stopping, searching and
detaining, and s. 25 applies even if the grounds for reasonable suspicion have not appeared until
after the person has stopped, or been stopped, for some other reason; Willey v. Peace, [1950] 2 All
 E.R. 724 applied.
(iii) the appellant’s explanation as to his possession of the bicycle was unsatisfactory;
(iv) there was evidence on which the magistrate could find that the document had
Page 809 of [1957] 1 EA 808 (SCK)

been altered without authority, (contrary to s. 343 (b) of the Penal Code) but in addition to this, it
was also a false document in that the appellant made a document purporting to be what in fact it
was not (contrary to s. 343 (a) ibid);
(v) the evidence of forgery of this document in Kenya by the appellant fell just short of the standard of
proof required in a criminal prosecution. Des Raj Sharma v. R., (1953), 20 E.A.C.A. 310 followed;
(vi) there was ample evidence that the appellant uttered the receipt in Kenya knowing it to be a false
document.
Appeal on counts 1, 3 and 4 dismissed. Appeal on count 2 allowed and conviction and sentence on
this count quashed.

Cases referred to:

(1) Willey v. Peace, [1950] 2 All E.R. 724.
(2) Des Raj Sharma v. R. (1953), 20 E.A.C.A. 310.

Judgment
Sir Kenneth O’Connor CJ: read the following judgment of the court: The appellant was convicted on
August 22, 1957, by the resident magistrate in Nairobi on four counts that is to say:
Count 1. Conveying suspected stolen property (a bicycle) contrary to s. 318 Penal Code;
Count 2. Forgery of a cash sale receipt purporting to be a receipt for a bicycle contrary to s. 345 Penal Code;
Count 3. Uttering a false document (i.e. the cash sale receipt) contrary to s. 349 Penal Code; and
Count 4. Official corruption contrary to s. 3(2) of the Prevention of Corruption Ordinance, 1956, in that he
corruptly gave Shs. 10/- to the police constable who had arrested him to induce the police constable to release
him.

The appellant was sentenced to imprisonment for periods totalling twenty-one months. He now appeals
against his convictions on all four counts.
We take the following statement of the facts from the judgment of the learned magistrate:
“P. 2, P.C. Stephen, was a member of the cycle squad of Kingsway Police Station.
“On the afternoon of May 30, 1957, he was on duty in Victoria Street, checking cycles. He saw accused
pushing the cycle Ex. 3, a trade type cycle, and stopped him and checked the number. He considered that the
number had been altered.
“He asked accused whose the cycle was. Accused said it was his, and produced the cash sale memo Ex. 1 in
his own name.
“P. 2 saw that Ex. 1 was not in order. Accused then said the cycle belonged to his brother – who was in
detention.
“Ex. 1 is printed in the name of The Cycle Mart & Exchange. P. 2 took accused to The Cycle Mart &
Exchange, to P. 1. Mr. R.H. Patel.
“P. 1 has stated that Ex. 1 has been completely altered from the duplicate Ex. 2. P. 3. Mr. K. H. Patel states
that he wrote out Ex. 1 and Ex. 2 in pencil. It was the memorandum of a sale of a “Ding-Dong” bell for Shs.
2/50 on June 4, 1956.
“The original pencil writing of P. 3 is visible on Ex. 1 under the ink writing.
“Ex. 1. is now made out in ink purporting to be a sale of a cycle to the accused on June 4, 1952.
“P. 2 then took accused to Kingsway Police Station. On the way, in Stewart Street, opposite to the Jeevanjee
gardens, accused gave P. 2 Shs. 10/- and asked P. 2 to release him, otherwise accused would get into trouble.
“P. 2 took the money on to the police station and handed over the Shs. 10/- to P. 4 Inspector Dean.
“Inspector Dean is in charge of the cycle section at Kingsway Police Station. He also considered that the
number on Ex. 3 had been altered.
Page 810 of [1957] 1 EA 808 (SCK)
“The number was irregular and he concluded it had been altered from having seen hundreds of cycles with
altered numbers. The Ex. 3 was sent to C.I.D. H.Q. for examination by Inspector McHenry. This inspector
has left the country and his evidence is not available. In fairness to the accused, the prosecutor read out the
report. This report was to the effect that no other number appeared as a result of the acid etching test. No
alteration of any nature was discernible.
“There is now no number at all on the cycle Ex. 3. Presumably the test applied removed the number. Defence.
“Accused states that the cycle was left by his brother when he was detained. He took the cycle, and the
receipt, from his brother’s house. The cycle remained in his possession until 1956, when he could legally use
a cycle.
“He had two receipts for licences for his brother for 1953 and 1954.
“His brother knew that he could use the cycle. He denies that he bribed P. 2.”

Mr. Swaraj Singh for the appellant takes as his first point that prosecution witness No. 2, P. C. Stephen,
was not acting under s. 25 of the Criminal Procedure Code when he stopped the appellant because here
was, at that stage, no reasonable ground for suspecting that the bicycle which the appellant was pushing
was stolen or unlawfully obtained: if s. 25 of the Criminal Procedure Code did not apply, there could be
no conviction under s. 318 Penal Code.
This argument was put to the learned resident magistrate in the court below. He did not agree, as a
finding of fact, that P.C. Stephen had no reasonable grounds for suspecting that the bicycle was stolen or
unlawfully obtained. The learned magistrate found as a fact that P.C. Stephen had such grounds. There
was evidence on which the learned magistrate could reasonably so find. Mr. Swaraj Singh attacks the
magistrate’s finding of fact on this matter because, he says, the learned magistrate attributed to the police
constable a piece of knowledge which was in the mind of the inspector in charge of the cycle section at
Kingsway that five thousand cycles were stolen in Nairobi in 1956. Even if P.C. Stephen did not know
the number of cycles stolen in 1956, he did know that there was a special “cycle squad” of which he was
a member and he had himself in seven months found about ten cycles with altered numbers. He must
have known that cycle thefts were prevalent in Nairobi.
We agree with the learned magistrate that P.C. Stephen had grounds for suspicion of a large number
of the persons who used cycles and that there is nothing to show that he stopped people indiscriminately.
The cycle which the appellant was conveying was a trade cycle. We think that there was evidence on
which the learned magistrate could reasonably find that P.C. Stephen had grounds for reasonably
suspecting that the appellant had in his possession a bicycle stolen or unlawfully obtained when he
stopped him.
In view of this it is unnecessary for us to consider Mr. Swaraj Singh’s contention that in order that s.
25 may apply it is necessary that the police officer should not only stop, or not only search or not only
detain a person suspected of having in his possession or conveying property stolen or unlawfully
obtained; but that he must do all three, and that reasonable grounds for suspicion must exist at the time
that the person is stopped: it will not satisfy s. 25 if, for instance, the person has himself come to a stop
and the police officer then notices that he is conveying what the officer reasonably suspects to be stolen
property. We have examined the authorities quoted by Mr. Swaraj Singh in support of this proposition
and we think that they fall far short of establishing it. For instance in Willey v. Peace (1), [1950] 2 All
E.R. 724 it was held that the police had acted in accordance with s. 66 of the Metropolitan Police Act,
1839 (which corresponds to s. 25 (c) Criminal Procedure Code) notwithstanding that the detective
constable had not stopped Willey when he reasonably suspected him of conveying stolen property and
ordered his search and detention. Willey was then in the police station to which he had gone voluntarily
with another police officer. We are by no means convinced that it is necessary for the police officer to go
through every stage of stopping, searching and detaining, or that it is not possible
Page 811 of [1957] 1 EA 808 (SCK)

to operate s. 25 if the grounds for reasonable suspicion have not appeared until after the person has
stopped, or been stopped, for some other reason.
We think that ground 1 (a) of the Petition of Appeal fails.
Ground 1 (b) alleges that the appellant gave a satisfactory explanation supported by documentary
evidence of his possession. As to this we need only say that we are in entire agreement with the learned
magistrate in finding the appellant’s explanation (supported by a bogus receipt) unsatisfactory.
Ground 2 (a) of the grounds of appeal alleges that there was no evidence before the learned magistrate
that the receipt was either made or altered without authority, as required by s. 343 of the Penal Code.
This ground assumes that it was necessary for the prosecution to bring their case under s. 343 (b). We
are far from saying that there was not evidence on which the magistrate could find that the document had
been altered without authority within s. 343 (b). But, in our view, there was evidence which brought the
case also within s. 343 (a). We think that the appellant’s contention on this point also fails.
Ground 2 (b) is to the effect that there was no evidence before the learned magistrate that Ex. 1 was
forged by the appellant in Kenya within the jurisdiction of the trial court and there was no evidence that
it was forged on May 30 as charged. Mr. Swaraj Singh argued that there should be unequivocal evidence
that the appellant forged the document and that he forged it in Kenya. He relied on Des Raj Sharma v. R.
(2) (1953), 20 E.A.C.A. 310. The effect of that case is that proof of the commission of the offence within
the jurisdiction of the court is essential to the prosecution case and, if not capable of exact proof,
evidence should be laid from which the necessary inference can be drawn. In our view, the evidence in
this case of forgery of this document in Kenya by the appellant fell just short of the standard of proof
required in a criminal prosecution.
As to grounds 2 (c) and (d), the magistrate dealt with these adequately and we agree with him.
As to ground 3, we think that the learned magistrate was right in finding the document was a false
document and there was ample evidence that the appellant uttered it in Kenya knowing it to be a false
document.
Ground 4 was abandoned at the trial.
There was evidence to support the learned magistrate’s finding on the official corruption count.
The appeal against conviction and sentence on counts 1, 3 and 4 is dismissed. The appeal on count 2
is allowed and the conviction and sentence on that count only are quashed.
Appeal on counts 1, 3 and 4 dismissed. Appeal on count 2 allowed and conviction and sentence on this
count quashed.

For the appellant:

Swaraj Singh
Swaraj Singh, Nairobi

For the respondent:

GP Nazareth (Crown Counsel, Kenya)
The Attorney-General, Kenya