19850327 TZHC Mtwara

◄ ;{lG'..: COUi,T Cf<.::.:r,;u~/\L ,u:.,P,:;J-\L i'JO. 49/82 Orli3I~AL CRihl~~L CKS~ ~Oa 228 OF 1982 OF TH£:: D/C OF SOiIGEA DL:i'i'kICT AT SONGtA Before P.A. RVG1.ZIA, l:::sq~ 7 R/i"iAGiS'I'HATE CI-IitI:•:·~rJ~·-·!'. ~--100}/Dr~ 0 .., f> <) 0 (IO O O O oAPPE.LidlNT (Original Accused) versus (Original Prosecutor) J U D G Jvi E N T MSUMI, J. Appellant was charged with stealing by ser~ant ~ontrary to ijections 2 71 and 265 of the E-\,;-,al Coaec At the. end of the· d 9,y the ·1earn·ea trial i .. resident Magistrate ~c~uitted him but he entered a substituted convi~t~on of stealing by agent contr2ry to sections 27l(b) and 2~5,:presumably acting under the provisions of section 181 of the Criminal-Procedure ' ' Code. Any way, rifte:r Deing so convicted appellant was sentenced to ;imprisonment for a r;ood term of seven years. In this appeal appellant is chailenging both the ccnvicti"'n and sentence. _'rhe ll~arned senior Stat_ e At,torney who q_;peared for the r";epublic joined hands with the learned defence counsel from 'l"an,:;ania Legal COri,Joratioi:i in being of the view tha_t _the conviction wc:is i&ulty hence not s~pportab1-e~ It is in evidence that appellant was employed by his village council as a cashier. In this capacity he used to recetve money from the National Milling Corporabo:1 anc.', other crop authorities 011 behalf of the village for the purpos2 of buying sl.mclry

crops from the peasants. · It is not in dispute that aLlong the mon~y received by him from i,.M.C. at the material time'wa~ shse10,JOJ/= which WdS for the purpose'of bu;i~g millet. It is the strong cont,~nt:i.on o:f: the prosecution that aJ:lpellant nefther \lsed the money for buying millet nor did he otherwise account for the tame~ 'l'O· this allegation, appcllcint' s explanation has been, throughout, that he used it in various village pr6jects after ~e was. ordered to do so by the village authority.~ Appellant maintained that_ the village leade,rship ·· sanctioned the use of this r;,oney in the alleged projects by authorising the relevant payment voucherso For this reason, there had been a protracted adjournment of the cc.se in order to enable either the police or the village 2 · council make avf.:.ilc,J.ile to ·che court these payment vouchc:rs. But none of them was cvail~~l~ end the police and the village authority held each othr:r r2sj,ions:,.Dle fo.c"" .i.L 1'he learned trial magistrate thus unilater~lly ordered the appellant to proceed with his defen6e without these vital docu □ ~nts. The sole ground in support of this app2al is the trial magistrate's finding of guilt not~ithstanai~g the fact that the prose~ution denied the court of th~ avail~bility of the alleged v~rious documents vide which the villa\Je lec:C2rsbip au"!::horised the appellant to pay out the money for

various villag2 project. ~ith respect, the forte behind this argum~nt is beyond resistance. It cannot be refuted that as far as N.M. C. was cc;-,c:-:rned, t:w recepient of this money was the village council-. Since i t was not ;Jracticnble for al~ the mc;;mbers of the council to keep the money jo:,.,1tl:/, they enga9ed t:,e a:;.:,i:,,ell.ant for that purpose. But still the council reta.ined overral control of hm·J the money· was to be usedo As beb-Jee,1 the appellant and the council· it was quite legitimate for the latter to Gir,:,ct th?; former. or, how the money should have been used:" Appellant I s sol:=c rcsponsibili ty was to .erisurb that so long as the money r~mairted in his hona it ~3i safe. Admittedly app~llant knew or ought tb ·have r·::a~onably :~nown t;1at .. th. money was for: buying crops from the peasants.. Hov:ever, this fact is not deraga tory . to . the vi],.lage . . council's overall controll of the said moneya After all the N.M.C. communicated with the village ~L~1ority 1 and not wit~ the appellant, in ill general matters partaining to the buying of crops~ In his judgm2nt the learned trial magistrate seemed to b~lieve _tl)e appellant that ti1e money was used in village pro jec:ts at the instigation of th:; vj_llage council'° For this, the trial magistrate was of the opin:i_o:·! tz:at appellant was ta:::(;n for ::i .ti<.ie by the village council. If that is

th"' c:1se then how cur,.e that the court convicted . him of the thc'oft of the said r:wney. It is oL v j"ous thc1. t appellant did ~---~-- not have the requ::_::;ite animus furandi when he: r,ilc::u,.,2d the money for the ,•.~ ,,.; said village proj .:!Ct:c;. I con' t think that the learned ·trial magistrate needs to be rernindec1. of '.::he elemen ta.ry rule of l.aw that· in order to convict an accused of th,ct't the prosecution must prove the existence ·. of actus reus wi:1:Lc;1 is specifically termed as asport'ation and mens rea or . animus fura~9..~.o In the instance cas8 there was undoub·t~dly asportation but definately ap~)ellant had no the requisite' guilty ·'tnind O& animus furandi when he u::;ed the rr,oney for the ~urpose, other than buying millet from the village. As poirited earlier, the learned trial magistrate cleared the appellant 0£ the-charge of stealing by servant and in alternative he convicted him of stealing by a9ent. '!'he reason which he gave for this is found at the end o:C his judgment when he said: lie.... Ho1,,ev2r, 1· would like to poin-t out . at this junct~re that the charge is ~efective in the sense that the accused is rioi an employee of th,~ =-: oho Co so he should have been properly charged with stealing by agent c/i 273(b) of the P ::nal Code and not stealing by servant" •. 0 With respect, th:: l,,:arned trial magistrate's reasoning is not

supported by the clear 1\10.::.·dLiCJ uf section 2 71 of the t'en 9 1 Codeo .·· For ?asy reference~ I am prociucing the same fully: 11 271., If the offender is a clerk or servant and th~ thing stolen is the pro~erty of his employer, or came into the possession .of _the ~~f.e_n_c~_c.r• .?A.__2._1::_c::5>_unt of his. employer, !'1-e. is lial)l2 to. imprisonment for ten years_''.~- ( ~mph as is supplied)o As the charge sheet shows,·in this case appellant was ~1ployed by Magazini ;Ujamaa village c1s an accountant. The 1,:A~Co- a,dvanced the Shs.10 ,-000/ = to ·che Sctic.,. village for the purpose of buying crops. Hence when appell2nt got the said money, he did so on account.of the· village .... his eii:ployer o The f.>rosecution was :therefore perfectly right "t6 chaJ:""ge him under section 271o rt is not true, as, the learned' trial magi~trate appears to think that section 271 comes into play only where the prop<:.rly bi2lon9s to the accused's employer., :Ct also cove.rs a situation wh·~re, though the stolen property does not belong to the· employer,· it came : nto possession of the employee or the. accused on accourit of his e,ttIJloycr. But even i / the 1,:arned trial magistrate's reasoning was sound, still the purpoj_'.'tcc( alternative conviction i.i; 'not supportable. Though he did not put it in clear terms, it, ~s obvious that the learned trial' magistrate depended on

section 181 of the Pe'i1ai Code to_ support his· decision. -commenting on the similar provision· of the Criminal Procedure Code of Kenya, tlv Court of Appeal for Eastern- Africa, in Robert Nde.£!::.2. and Anor v. R. (1951) 18 t,;oAoCoko 171 at p.174 said: 4 In order to r.,ak,:; thr::: positic:·. abunC::antly 11 clear we restate again that -~•··•··where an accused i~ ch2rged with an dffe~cei he may be convicted of minor offence, although not ch.1r,:"'<:J vJith it, if that minor offence is of a co~jn,_-.te.character, that i t to's.ay of the sa:tt,e genes c:,nd species". See also l~~-~"...I-I_o!,~e. ('.l.944) 11 £.A.C.A. 107 and 1<. v liiuhoja (1942) ~ E.A.C.A.

70. In ~1is case it cannot be rationally argued th~t t~e offence of st2al~ng by agent is cognate to stealing by servant. Both offences belong to the genes and species of the offences of theft,. But I am doubtful if stec-1lj_ng by agent is minor to stealing by servant. Whether or not an oO'fenc,~ is minor to the charged one i$ a question of law. The test in Getermining it was clearly-stated by this court in " . ·: Ali MoharnE:~?.. _E_a.s.sAn. _Lp_a_n_d_a., .Y.. ,.I.::.~~ [:'I96'}_7 ii; .•• A~ at 296 when s1i1rY' Jo said: 1 first wh,-~ther the circumstances embodieq • • • • o .. in tlL, 1i1ajor charge necessarily and according to th,0 c:erinition of the offence impute<l by that cbarcJ-=, constitute the minor offence i;ilsp, <1nd secundly Hhetr.er the charged major offence giv2s ~he nctused n6tice of all tircumstances going i:o constitute the minor offenc,e intend,1~,d to be suj)stitutedu. the to Thus in this ccse :ForLuppcllant L be convicted under section. 2 73 (b) the prosecution must ;>rove, inter ,1lia, that he came into possession of the ~lleged stolen property as an agent o~ ejther real owner or speciaJ. own,::r o But this requirement is not part of the essential constituents of t;w offence under section 2 71. Thus a proof of the offence under section 271 does not necessarily no~ify the accused of the essential elements of the offence _under section 273(b)~ · For this reason the purported substituted convit:t'ion in this case is n<?t sustainable. After h2aring ::~1j_s appeal, I quashed the :conviction ar:id set asid_e the sentencev and ordered for the irnm_e_diate release· of the ~ccused., The said order wus rnc:,d2 for tbF.: reasor;is. cor:itafried in this judgment .. ~ ; ' ,\ ~ \- ' ,',_! !__\ '•.AJJ., H·:· i•.:o "'Hs-urri Judge 27o3o85