Lenderito s/o Laidosoli v. R., (PC) Crim. App. 499-A-71, 19/5/72, Bramble, J.

 

Lenderito s/o Laidosoli v. R., (PC) Crim. App. 499-A-71, 19/5/72, Bramble, J.

The appellant was convicted of burglary, stealing and unlawful wounding c/ss 294,265 and 228(1), Penal Code and was sentenced to two years’ imprisonment, six months imprisonment and a fine

of Shs. 200/= respectively. The facts are that PW3 was a tenant of the appellant and he left without paying rent. PW3 rented another house and on the 10^th May, 1971 the appellant asked for his rent. PW 3 did not pay and the appellant told him that he would see the consequences in the evening. At about 10.30 that evening PW 3 had gone out and PW1 heard a bang on his door and saw people coming from his room; the appellant was standing near the door and attacked PW 1 when the raised an alarm and he sustained a lacerated wound on his head. PW 3 found two suitcases and bed sheets missing.

            Held: (1) “With reference to the charge of burglary, PW 3 did not say that he left his door closed when he went out nor did any of the witnesses see it closed. PW 1 came to the conclusion that there was a breading into the room in question because he heard a bang on the door. This was not conclusive evidence of breaking for the purposes of the offence charged.” (2) “As to the charge for stealing, the case for the prosecution was that the appellant took the goods of PW 3 because he refused to pay his rent. The obvious conclusion is that the appellant acted under a claim of right. Stated Attorney argued that section 263 of the Penal code should be applied. It reads in part: - “When any person takes or converts anything capable of being stolen, under circumstances as would otherwise amount to theft, it is immaterial that he himself has a special property or interest therein”. He maintained that by taking the goods the appellant was holding it as a security for his rent. By this argument the appellant acquired a special property or interest, if any, after he had taken possession of the goods. In any case to establish stealing there must be established (a) a fraudulent taking and (b) no claim of right. I do not see the relevant of the section mentioned to the facts of this case. The rash action of the appellant may expose him to damages in a civil suit but there is not the mens rea necessary to bring home the criminal offence of stealing.” (3) “There was no defence to the charge of unlawful wounding and no reason to interfere with the sentence”. (4) Appeals from convictions on the first two counts upheld, and appeal from the third count dismissed.