Tanzania Judgment

TZHC

19830901 TZHC Mbeya

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Source document

01

Holding and result

The evidence did not prove intent to permanently deprive the owner of the excavator; thus, the conviction for theft was set aside and substituted with a conviction for conversion not amounting to theft under section 284 of the Penal Code.

Court disposition

conviction for theft set aside, conviction for conversion substituted, sentence reduced

Orders

  • Conviction for theft quashed
  • Conviction for conversion not amounting to theft under section 284 Penal Code substituted
  • Sentence of 8 years imprisonment set aside
  • Sentence of 6 months imprisonment imposed
  • Immediate release ordered if sentence already served

02

Material facts

Parties

Julius Msombeja

Appellant

Republic

Respondent Counsel: State Attorney

Amounts and remedies

  • Value of Stolen Property: TZS 850,000

03

Procedural history

  1. Posture

    Criminal Appeal / Judgment on Appeal

04

Questions and positions

Legal issues

Party arguments

Applicant
The appellant argued that he took the excavator as instructed and returned it to the yard the same evening, denying any intention to steal.
Respondent
The State Attorney argued that the correct charge should have been conversion under section 284, as there was no proof of intent to permanently deprive the owner of the excavator.

05

Court’s reasoning

  1. 01

    Penal Code, sections 270 and 265

    A conviction for stealing by a public servant requires proof of intent to permanently deprive the owner of property.

  2. 02

    Penal Code, section 284

    Where there is no intent to permanently deprive, the appropriate charge is conversion not amounting to theft.

06

Ratio, limits and disposition

Ratio decidendi

The evidence did not prove intent to permanently deprive the owner of the excavator; thus, the conviction for theft was set aside and substituted with a conviction for conversion not amounting to theft under section 284 of the Penal Code.

Obiter and limits

  • The appellant deviated from instructions and went on a frolic of his own.

Court disposition

conviction for theft set aside, conviction for conversion substituted, sentence reduced

  • Conviction for theft quashed
  • Conviction for conversion not amounting to theft under section 284 Penal Code substituted
  • Sentence of 8 years imprisonment set aside
  • Sentence of 6 months imprisonment imposed
  • Immediate release ordered if sentence already served

Source and reliance status

TZHC · 1 September 1983

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Judgment text

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Source document

TZHC

Judgment· 1 September 1983

19830901 TZHC Mbeya

4 I IN TITIL HIGH COUHT OP f1J/ .T IiL3LY.. lILTL JIDIC2IO Mbeya Registry) ciini iu IN.G. 76 OF 1980 ORIGINJ CRBJNiL• CiSP NO. 402 CP 1979 OF TIE DITRIOT COURT OF S'NG. DISTRICT r.T S'NG Before: S. J. Lawena, Lsq. Resident Mais -tate, JuIvLEiS/0MS.iBJEJA ............. ...............4ITELLANT

VERSUS TIREEU.IC . ........ .& • . . . •. .. . . . . ...... RS1`0NiNT CUkRG; Ste4ing by a person eL!ployed in lublic Service c/ss.270 and 265 of the Penal Code, Cap.16. JTtDvfliNT The appe11art was chared with stealing by a public servant. He was a driver emp1oed by'Comnoworks Sur.thawanga On 12/12/79 he was instxv.oted to drive an eccvrtor CW 3340 from &uabawanGa to a place a11ed Ise1iya to pull out a vehicle whici'i had stuck. He did not ren. Thenext day the machine LI was found dumped in Lwiehe river. It was retrieved and returned to Oociwos yard. The appellant was charged for staling the excavator. In hia defene he admitted that he had taken the ecavator to iseha ag al1eed. EQ arue he had reurned it into the 7ard the sue evenings He was con vict6A as A .hargedi He was sentenced to 8 years iiLlvrisoruaignt (the value of stolen propery was given as Shs.850*000/=). He app1ed.. There was ample evidence that the appellant d.ove the excavator out of the yard on 12/12/79. The following day it Was ±'oun (with all the .kers). dumped in a rir, This was along Mbeya road whicb:hacl nothing todo with the place he was instructed to go. Obviously he deviated andwenton a fQjo of his own. s argued by the learned State ittomey the cO.Drect charge huld have been conversion under S.284. I am of the same view, There was :flpreof. that the appellant intended to pemanently deprive Commowo*s of

the eXcavator. It was a big thing. He could not have either kept it with him or find a bayer. I set a6L1e the convictiOn of tl1n anct s ttitzte ttherew of the one of conversion not amounting to theft c/s.284 P. C. I set aaicle the sentence of 8 years and sibstitute:thereof the one of 6 months iisoxt- uen't. This should result in his iiirediate release. The appe1 aUoed to the extcnt sttcd aoove. tbeya, 3et Septber, 1983 JUDG.4.

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Authorities

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Penal Code section 270

Legislation

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Penal Code section 265

Legislation

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Penal Code section 284

Legislation

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