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The two accused were charged with theft. There was evidence that the first accused had stolen a bicycle and had taken it to the house of the second accused. The second accused kept it for several days and assisted the first accused in removing the saddle. The bicycle was then recovered by the police. The trial magistrate found that the second accused knew that the bicycle had been stolen and convicted him of being an accessory after the fact c/s 387, Penal Code. In substituting this conviction the magistrate purported to act under s. 181, Criminal Procedure Code.
Held: (1) The offence of accessory after the fact is minor to the offence of theft but is not cognate to it. [Citing Velezi Kashizha v. R., (1954) 21 E.A.C.A. 389]. Therefore, s. 181, Criminal Procedure Code, was inapplicable and the conviction as accessory after the fact should not have been substituted.
To be convicted as an accessory after the fact an accused not only must know or have reason to know about the offence but must take steps for the purpose of enabling the offender to escape punishment. There was no evidence that the second accused took such steps. Conviction of first accused affirmed; conviction of second accused quashed.
