Blasio v. R. Crim. App. 16-A-71; 14/5/71; Kwikima Ag. J.

Blasio v. R. Crim. App. 16-A-71; 14/5/71; Kwikima Ag. J.

The appellant was convicted of theft by agent and sentenced to nine months imprisonment. He had stood as surety for his friend one Rehani and executed a bond for Shs. 500/-. Rehani jumped bail. The appellant then went to look for Rehani. He found the brother of Rehani who immediately gave him Shs. 500/- “kwa ajili yak wend kulipa dhamana hiyo” i. e. in order to go and meet the forfeiture of the bond. Appellant spent Shs. 100/- of this amount. In convicting the appellant, the learned magistrate held that he was acting as agent when he took the money.

            Held: (1) “The learned trial magistrate failed to consider whether the appellant, believing that the money was given to him personally, had any claim of right. It did not matter whether the appellant was mistaken in his belief since ignorance of fact is legally excusable.”(2) “In the present case the appellant was given the money for the purpose of redeeming himself from a bond which he had personally entered on behalf of Mbaile’s brother. He had not been directed to do anything specifically, as he had simple been told to take the money instead of Rehani. In this sense he could not be Mbaile’s agent. He could not have been anybody’s agent for that matter, simply because he had received the money for personal redemption. There was as yet no order for forfeiture of his bond. Therefore the appellant could not lawfully be called upon to surrender Shs. 500/- in exchange for Rehani’s freedom.” (3) “The section (s. 273 (d) Penal Code) under which the appellant was charged concerns “valuable security ………. Received by the offender with a direction that the proceeds thereof should be applied to any purpose or paid to any person.” The money given to the appellant was not in this category.” (4) Appeal allowed; Conviction quashed.