19830805 TZHC Mbeya

I: IN THE HIGH COURP OF VI'IZNI.k / ItTLiEYA. PPLTi JURISDICTION fl (YaYA RGIRY) - CflILAPPEiLL NO. 48 OP19 8j ORIlLd, CRThiILd CSI NO, 120Q 1981. OF THE DISTIICT COURT OF 13iYA DISTHIC. 1 i.T i&3Yà Before: J. M. Kiyyeu Faq., aesiaant liagi•tl!ate, FZIAS IBRAHThi &11X ,..,. • . ......:......... V1RStJS TEEBLPUBLIC ,.. . . .. . . . .. . .. . .. .. . . . . . . . . . .. , . . .. R.ESPOND&T HARGE MURTIM COThJTSp fteaUng.br I?13to Si/.2 44 265 f the Penal Code. JUDGNT IVI1JNYERA, J. The appellant was chai'ed. with 3 qpounts of eaLing by a0 pxb1i. servant,, It was stated that he iia.s a statio4a cor)i.xor with an agricu.ltL1aJ institute at Uyo1e, Mbeya J)istrict His dnties included procuring building £iateria1 i'r onatuction widc in the zibstationa which he was the 000rdinator. It was aieri,ed that between the 1st day of Uobe., 1979 and the 28th day of pri1, he stoi& last o'nt Shs.550/=., 5th eowit hs. 2,8OO, 6th count Shs. 1, ?O0/=, 7h Count Skis. 2 ,65O/, 8th '3ount s.9,45Q/=, 9th C<Unt hs.1,O24/B 0 , Oth Count. a.17,QOQ/, 11th CQunt Shs.1,69Q4, 12th Count s 3hs.1,O0O/= and 13th Count hs1, Q/' all being property of his eoip1oy r, the Uyole Agriu1txa1 Centre. In his defence he admitted to have jeen given the money set £'orth in the charge sheet, lie was given the iuony as imprest in order o for costiction work in th sithstationa. te bought the material with swe of the inoneyaridhadt3 aooôunt for the unspent balance as is the case with all imprests. The lee med trial maistrate disnied that defence and convicted the appellan'.; of all 13 counts as charged. He sentenced him to concurrent jail tens the highest being five years in the 2rid. 8th and 10th counts. Hence this appeal. ivir. Dhebar represented him. May I be forgiven t3 say that the learned ±ria1 xeeident aagistrate did not understand the basis of the . prosecution's case. They had alleged that the a.pe1lant had stolen the monies as stated in the charge sheet. Bit in reading the report txh. P.35) proaced by the 8eit.'0ui0or, Mwasaga .(L.7), I found vas no question. cfsteling. 3.1 the 011 (2) onis were lawfully paid to the appellant, Payment vouahers and che& were quoted, as well as the purposes for wbib they were paid. It was therefore surprising to say that the appellant so1e that same money. There can be no theft of things taken with consent of the owner, It is not understood why the trial m ts.rs.te dii.ad âhe appe1lan.t 4 a defence that the money was in the foi of imprest. There was evidence of Pirinen (i-w.2) that it was o. It co'tild be argued for the prosecution that the appellant failed to account for the imprest. Jut 'there was no evidence to establish what materials he bought and for how much and the balance he was supposed to retire. I only say this in. paai2ag 4au&e f.ai1um ta. a000unt for imprest can newr turn into a ciiminal ffnce. I aJ.low the appeal. I quash the appellant's vonviotion ad zet a.ide the Beep I .rde that he be released £rthwith unles heltfó ther cause. The Re,;Dublio did iot.seek to ppt.onvi€tion - •ifIij 0 -II L t Ivibeya, - P. A. 0 5th ugust, 1983 ____