Mutito v. R. Crim. App. 378-M-71; 9/3/72; Makame, J.

 

Mutito v. R. Crim. App. 378-M-71; 9/3/72; Makame, J.

The appellant was convicted of cattle stealing c/ss 268 and 265 of the Penal Code. Satisfactory evidence was led to establish that less than 12 hours after 8 out of P.W. 1’s 16 head of cattle had been feloniously removed from his cattle pen at Nyamongo, North Mara, and the appellant was found across the boarder in Kenya driving 4 head of cattle convincingly identified as being among the stolen 8. He was fast driving them past P.W. 2’s house that was suspicious and tried to stop the appellant. The appellant would not stop so P.W.2 ordered his three his three dogs to persuade the appellant to stop, which the dogs did. The appellant said the cattle were his and that he was merely going to plough his shamba, and he gave a false name. He was subdued with ropes and when he was taken to the local chief, P.W. 4, the latter who knew him identified him as Mutito Waikami. The appellant got the statutory minimum sentence for cattle theft and was ordered to pay 4 head of cattle to compensate for the 4 not recovered. For the Republic although the conviction was supported it was argued that such an order was improper because Section 6(1) of the Minimum Sentences Act, under which the order was made, provides for monetary compensation only, unlike compensation under section 176 of the Criminal Procedure Code which provides that compensation may be “in kind or in money”.

            Held: (1) “With genuine respect I do not share this restrictive view. Compensation is not confined to monetary compensation. It is a broad term and the purpose of compensation is to ensure that the offender gets no material benefit from his crime. If compensation meant monetary compensation only, section 176 of the Criminal Procedure Code would not have talked of compensation in money or in kind, which implies that compensation may be in money or in kind. If compensation was to be understood to mean monetary compensation only there would have been another term if compensation was payable in kind.” (2) “Section 6(2) of the Minimum Sentences Act talks of such compensation being recoverable as a civil debt. A person against whom such a debt is ordered to be recovered is a ‘judgment debtor’ and the definitions of ‘judgment debtor’ of a ‘decree’ in the Civil Procedure Code do not support the implied proposition that a debt can only be a monetary debt. In a society like ours in which barter is still the order of the day there seems to be no justification for being so narrow and unrealistic in our definition. I respectfully agree with what Seaton J., as he

Then was, said in Wanyangura Matuja vs. R. (1968) H.C.D. 507 that a compensation order expressed in terms of cattle is (often – the qualification is mine) bad for vagueness because ‘individual cattle may so vary in size and condition that the value of cattle be Shs. 600/= or Shs. 1,200/’. This is quite correct but it is not the same as saying that a compensation order may not be made in kind. It only points out the difficulty that may be encountered whether compensation is in money or in kind it is to be “as assessed by the court”, which would have all the available facts at its disposal and use its discretion and common sense. In some cases, perhaps in most cases, it would be more convenience to express the compensation in terms of money but that should be for the court to decide.” (3) “Because of the foregoing and in the absence of any special reason to warrant interference, I do not propose to interfere with the compensation order and accordingly I confirm it.” Appeal dismissed.