Christian Simon Briyo v. R., Crim. App. 693,694,695-D-67, 27/10/67, Saidi J.

Christian Simon Briyo v. R., Crim. App. 693,694,695-D-67, 27/10/67, Saidi J.

Accused was convicted on three separate charges of theft by public servant [P.C. ss. 265,270]. As an employee of the Masasi District Council, attached to the Masasi Primary Court, he had misappropriated part of a fine paid by an accused, and some money being kept at the court for prisoners who were detained on charges. The District Magistrate substituted convictions under section 271 of the Penal Code; his grounds were that the accused had not been acting as a public servant, since he had received the money for the Judiciary and not for his employer, the District Council. Although two of the transactions involved sums of more than Shs. 100/-, the District Magistrate imposed a Minimum Sentence on only one of the three charges.

            Held: (1) Accused was a person employed in the public service, and received all three sums by virtue of that fact. Whether he was working in the District Council or “In any other Government Department, …. he was being paid from public funds as a local government servant,” and the proper charge is therefore theft by public servant,” and the proper charge is therefore theft by public servant [P.C. s. 265, 270]. (2) “It is very clear that all of these three cases could have been tried together in one charge of three counts.” This procedure should be followed where possible. (3) The minimum sentence of two years and 24 strokes was imposed on the two charges involving more than Shs. 100/-, as required by the statute; all terms of imprisonment were ordered to run concurrently. (4) Because the sentence were imposed on convictions under separate charges, the High Court could not avoid ordering two sentences of 24 strokes of corporal punishment. However, as the sentence was severe, “and the facts clearly show that the appellant would have been awarded twenty-four strokes only had these three cases been brought in one charge of three counts,” the Court directed the dispatch of the records to the Director of Public Prosecutions for forwarding to the President, for the exercise of his prerogative of merely.