Antony v. R. (PC) Crim. App. 195-M-70; 30/12/70; Mnzavas Ag. J.

Antony v. R. (PC) Crim. App. 195-M-70; 30/12/70; Mnzavas Ag. J.

The appellant was convicted by the Primary Court of housebreaking and stealing contrary to sections 294(1) and 265 of the Penal Code. His appeal to the District court of Geita was dismissed and this is the second appeal to the High Court. His appeal to the High Court on the charge of housebreaking was allowed on the ground that the Primary Court magistrate had not taken a plea and his trial was therefore a nullity. Certainly comments were however made by the Judge on the law of “constructive breaking”.

            Held: (obiter) “As the law stands constructive breaking will only be said to be committed if a person enters into a house by some aperture which by actual necessity, is permanently left open. It has thus been held to be sufficient breaking if a thief comes down into the house by a chimney, though there would be no breaking if he came in through a window which the builders had not yet filled with glass - Kenny – 18^th Edition page 246.” “For my part I see no valid reason why there should be such a distinction. As commented in Kenny the cases of constructive breaking are not extensions of the law made to cover circumstances not originally envisaged, but are relics of the more strict rule of archaic law which treated as a capital offence any coming to a house with intent to commit a felony therein.” “In my view there is great need now to extend the law regarding constructive breaking to embrace circumstances not originally envisaged.” (Ramadhani s/o Bakari v. R. (1969) H. C. D. 309 disapproved.)