Ntonya and Another v. R. Crim. App. 44-Dodoma-71; 9/3/72; Mnzavas, J.

 

Ntonya and Another v. R. Crim. App. 44-Dodoma-71; 9/3/72; Mnzavas, J.

The appellant were convicted of cattle theft c/ss 268 and 265 of the Penal Code. The evidence established that the appellants represented themselves to the cell-leader as being the owners of the cow which was later identified by the complainant as his cow which had been missing from his herd. The appeal was merely admitted for argument as to whether the taking of the cow by the appellant from the cell-leader amounted to theft or was only consistent with obtaining by false pretences.

            Held: (1)”For a charge under s. 302 of the Penal Code (obtaining by false pretences) to stand, the offender must not only  have induced the complainant to transfer possession of the property to him but the complainant must in the process have also transferred ownership of the property to the offender …… In the present case the cell leader cannot be said to have transferred ownership of the cow to the appellants … He did of course transfer his right of possession of the beast but ownership was still with the complainant and could therefore not have transferred a right he did not own.” (2) “The taking of the cow from the cell-leader by the appellants, though with the consent of the cell-leader amounted to stealing the cow just as much as if the appellants had stolen it from the complainant’s kraal.” (3) “The appeal against conviction is incompetent. The sentence of 3 years imprisonment and 24 strokes corporal punishment imposed on each accused was the statutory minimum on 10/8/71;, the day of the conviction. Corporal punishment though appropriate and mandatory at the time, has now been overtaken by events – Act No. 1/1972. The appellants are each to suffer 3 years imprisonment only.”