R. v. Samweli, Crim, App. 453-A-71; 10/3/72; Bramble J.

 

R. v. Samweli, Crim, App. 453-A-71; 10/3/72; Bramble J.

The accused in this case was charged with stealing by agent c/s 213 (b) of the Penal Code and trial magistrate dismissed the case without calling on the accused. The accused was a member of a Kijiji cha Ujamaa; the chairman gave him Shs. 100/= to buy a cow to be slaughtered for the Kijiji; the accused did not buy the cow nor did he return the money. The trial magistrate ruled that a case had not been made out in that the accused, being a member of the Kijiji, was a general owner of the money and had a claim of right; that the remedy for recovering the money was civil rather than criminal. He relied on the definition of theft in Section 258 (1) of the Penal Code and it is – “A person who fraudulently and without a claim of right takes anything capable of being stolen or fraudulently converts to the use of any person other than the general or special owner thereof, anything capable of being stolen, is said to steal that thing.”

            Held: (1) “Without going into the merits of the argument that the respondent was general owner I would draw attention to section 263 of the Penal Code which reads: ‘When any person takes or converts anything capable of being stolen, under such circumstances as would otherwise amount to theft, it is immaterial that he himself  has a special property or interest therein, or that he himself is the owner of the thing taken or converted subject to some special property or interest of some other person therein, or that he is one of two or mere joint owners of the thing etc.’ There was little evidence from which the interest of the accused in the Shs. 100/= could be positively inferred and if anything could be inferred it is that he was a joint owner with other members of the Kijiji and this brings the matter squarely within the provision of section 263 quoted above.” (2) “There was a case to answer and under my powers of revisional order that the case be remitted to the lower court and direct the trial magistrate to call the respondent and finally decide the matter.”