KISESE MBUGHA v ZAINABU SWALEHE 1991 TLR 90 (HC)

KISESE MBUGHA v ZAINABU SWALEHE 1991 TLR 90 (HC)

Court Court of Appeal of Tanzania - Singida

Judge Mwalusanya J

24 July, 1991

Flynote

F Criminal law - Theft - Whether a spouse can steal from another spouse.

Family law - Theft - Whether a spouse can steal from another spouse.

Criminal Practice and Procedure - Sentencing - Conditional discharge - What the

condition is - Section 4(1) of Primary G Courts Criminal Procedure Code.

-Headnote

The respondent was charged with stealing from her husband. The Primary Court

convicted her, awarded a punishment of conditional discharge and ordered her to pay

half of the stolen money to her husband i.e. Shs. H 15,000/=.

The wife who after the theft began to live in separation appealed to the District Court

protesting her innocence. The District Court quashed the conviction and sentence of

the Primary Court on the ground that the respondent I had a defence of "honest

claim of right".

1991 TLR p91

MWALUSANYA J

The second appellate court considered whether or not the respondent committed

theft. The court also considered A what constitutes a condition in a conditional

discharge.

Held: (i) Under section 264 of the Penal Code, Cap. 16, a husband may be guilty of

stealing from his wife or a wife from her husband;

(ii) since the trial court was unanimous that the respondent had taken her

husband's money and the District B Court endorsed that view, the connection was

inevitable;

(iii) under section 258 of the Penal Code, Cap. 16, anyone who takes away

something under an honest C claim of right is not guilty of the offence of theft. In

the case at hand, the respondent had at no time claimed that she had taken the Shs.

30,000/= under an honest claim of right;

(iv) under Section 4(i) of the Primary Court's Criminal Procedure Code the

condition for a conditional D discharge ought to be that "during a period not

exceeding one year the accused shall appear and receive sentence when called upon

and in the meantime he or she shall keep the peace and be of good behavour". It was

wrong for the trial court to order that the condition for discharge was that the

accused pay her husband half of the stolen E money.

Case Information

Order accordingly.

No case referred to.

[zJDz]Judgment

Mwalusanya, J: The respondent Zainabu d/o Swalehe is the wife of the appellant

Kisese s/o Mbugha, but they are F now living under separation. The respondent was

convicted by the Ilongero Primary Court, in Singida District of stealing Shs. 30,000/=

belonging to her husband. The trial court awarded a punishment of conditional

discharge G under s.4(1) of the Primary Courts Criminal Procedure Code and the

said respondent was ordered to pay her husband half of the sum that she had stolen

i.e. Shs. 15,000/=.

The respondent appealed to Singida District Court protesting her innocence that she

had never stolen the alleged Shs. 30,000/=. The District Court quashed the conviction

and sentence and also set aside the order of payment H Shs. 15,000/= to the husband.

The learned District Magistrate inter alia stated:

The woman took what she thought was her right. Therefore she had a defence

of bona fide claim of right on her side. I

1991 TLR p92

MWALUSANYA J

A That is why the conviction was quashed.

With respect, the learned District Magistrate was wrong. It is true that under s.258(1)

of the Penal Code Cap. 16 B anyone who take away something under an honest

claim of right is not guilty of the offence of theft. In the case at hand, the respondent

had at no time claimed that she had taken the Shs. 30,000/= under an honest claim of

right. She simply stated that she never had taken her husband's money. It was wrong

for the learned District Magistrate C to put words in the mouth of the respondent,

which was not part of her defence.

Under s.264 of the Penal Code Cap. 16 a husband may be guilty of stealing from his

wife or a wife from her husband. So the sole question in this case was whether the

respondent had stolen the money from her husband or D not, and nothing more.

The trial court was unanimous that respondent had taken her husband's money and

the District Court endorsed that view. That being the case, the conviction was

inevitable. Any extenuating circumstances ought not to disturb the inevitable

conviction, but may only affect the sentence to the imposed.

E I may only observe in passing that even if the respondent had raised the defence

of honest claim of right, it is unlikely that she would have succeeded in the

circumstances of this case. This is because the bona fides have been dispelled by the

fact that she ran away from the matrimonial home since that day, and has been living

under F separation since then. If she had an honest claim of right to the money, she

would have at least remained at the matrimonial home to spend the money for

domestic purposes. But that was not the case.

G I may also point out that the husband established at the trial that the money in

question was his separate property as accepted under s.58 of the Law of Marriage Act

No. 5/1971. It was not joint property which was acquired by joint efforts. In fact that

was common ground at the trial.

H The learned District Magistrate was not happy with the order of conditional

discharge that was granted by the trial court in that the condition for the discharge

was that the accused should pay her husband half of the stolen money. I agree that,

that was wrong. Under s.4(1) of the Primary Courts Criminal Procedure Code the

conditions I for a conditional discharge ought to be that: 'during a period not

exceeding one year the accused shall appear and receive sentence when called upon

and in the meantime he or she shall

1991 TLR p93

keep the peace and be of good behaviour'. That was not done, and so the trial court

went wrong. A

In the event this appeal is allowed. The judgment of the District Court is set aside.

The order of conviction of the respondent by the trial court is restored.

The order for conditional discharge by the trial court is restored save that it is to be

accompanied by the usual B conditions set out in s.4(1) of the Primary Courts

Criminal Procedure Code. The order of refund of Shs. 15,000/= is set aside but that

the respondent will pay her husband Shs. 30,000/= which she stole. C

Order accordingly.

1991 TLR p93

D