Komanya v. R. Crim. App. 1-A-71; 18/6/71; Kwikima Ag. J.

Komanya v. R. Crim. App. 1-A-71; 18/6/71; Kwikima Ag. J.

The appellant was convicted of stealing by a person employed in the public service c/s 265 and 270 of the Penal Code the appellant was charged on one count of stealing Shs. 3,161/55 revenue collects y him, as Principal of Tango Farmer’s Training Centre on various dated in April, May, June and July 1969. on being sent on a course to Dar es Salaam in August 1969 he handed over to his relief but there was no accounting between them. He subsequently issued a cheque for Shs. 3, 093/55 dated 1/9/69. The appellant’s defence was that as he was going to Dar es Salaam on duty not on transfer there was really no need for him to hand over, that there was no time limit within which he had to remit the money he had collected and that he had taken the money with him to Dar es Salaam for remittance.

Held: (1) “Advocate for the appellant relied heavily on the case of Aguthu v. R. [1962 E. A. 69 in support of his contention that there was a failure of justice  and that the appellant was prejudiced in his defence on account being charged “ of an aggregate of offences.” In that case …….. Mr. Justice Mac Duff held that (the charge) was not duplex because no prejudice or embarrassment was shown to have been occasioned on (sic ) to the appellant. It should be emphasised that failure to split the charges into its component counts was not held to be fatal to the conviction.” (2) “The learned magistrate never addressed himself to the proper test in cases involving circumstantial evidence. The test is that the circumstances adduced must be consistent with no other hypotheses except the guilt of the accused …………….. What circumstantial evidence there was did not stand inconsistent with the appellant’s innocence. No was it “irresistible and incompatible with innocence as was stated in Charles Isaboke v. R. [1970] H. C. D. 197.” (3) Conviction quashed.