Mazura v. R. Crim. App. 776-M-70; 11/5/71; El-Kindy, Ag. J.

Mazura v. R. Crim. App. 776-M-70; 11/5/71; El-Kindy, Ag. J.

The appellant was charged and convicted of stealing by servant c/ss 271 and 265 of the Penal Code. He was sentenced to 2 years imprisonment and 24 strokes corporal punishment and ordered to compensate his alleged employers Shs. 85/20, the subject matter of the charge. It was established that the appellant was employee of the Mwanza Town Council as school teacher. At the same time he was acting a Regional and District Secretary of T. A. P. A. without any remuneration but was allowed, like other TAPA workers, to an allowance referred to as “posho” which he could pay himself so long as TAPA had the money. On one occasion, the appellant paid himself as “posho” – after preparing the necessary documents – Shs. 85/20 which he received as Secretary of Tapa from the Manager of he Community Centre. The monies were the proceeds realised from a fund raising dance. The main issue then was whether or not the appellant could pay himself according to TAPA regulations which were not produced in court. As regard the sentence, the learned magistrate accepted that the amount involved was less that Shs. 100/- and that special circumstances existed in this case, but since appellant was not a first offender, he was precluded from the benefit of s. 5(2) of the Minimum Sentences act. Cap. 526

            Held: (1) “It was not in dispute that appellant could have paid himself in accordance with TAPA regulation, and the appellant clamed that regulation 22 permitted him to do so, but because he could not produce the alleged regulation, the learned magistrate held this  against him. As it was part of the prosecution case that the appellant was not entitled to the money, it was the prosecution’s duty to produce these alleged regulations in court to satisfy the trial court that the appellant could not pay himself. It was not for the appellant to prove this and, with due respect to the learned magistrate, he misdirected himself on the burden of proof in this respect.” (2) “Section 5(5) of the Minimum Sentences Act Cap. 526 provide that a first offender is one who had [not] a previous conviction of (a) a scheduled offence or (b) any offence contained in chapters XXVI to XXXII inclusive …. Of the Penal Code. The appellant had one previous conviction for unlawful assembly c/s 75 of the Penal Code and one for abduction of a girl c/s 133 of the Penal Code. None of these convictions was a scheduled offence. The former fell under Chapter IX and latter under Chapter XV of the Penal Code. The two offences did not form part of the second limb of subsection 5 of section 5 of the Minimum Sentences Act ………. In terms of the Minimum Sentences Act Cap. 526 he was a first offender and therefore he was entitled to the benefit of s. 5 (2) of the Minimum Sentences Act.” (3) Appeal allowed.