Mulengera v. R. Crim. App. 871-M-70; 12/5/71; Mnzavas Ag. J.

 Mulengera v. R. Crim. App. 871-M-70; 12/5/71; Mnzavas Ag. J.

The appellant was convicted of stealing c/s 165 of the Penal Code and sentenced to 2 years and 24 strokes corporal punishment. He was originally charged with stealing by person employed in the public service but then after an adjournment the prosecution put in a substituted charge of simple stealing.  The charge was read to the accused and he replied; “I know the money was TANU property, and it is true and I admit I stole the money belonged to TANU Kigongo Branch. I am sorry for this offence.” It was argued on appeal that the trial magistrate erred in sentencing the accused under the Minimum Sentences act because the accused was charged with simple theft. (Referring to JOHN s/o SILANDA [1968] H. C. D. 322.

Held: (1) (Distinguishing JOHN s/o SILANDA [1968] H. C. D. 322 “the facts in that case are totally different from the facts of the present case. in the case of John Siland, the accused was charged with stealing goods in transit contrary to section 265 and 269 (c) of the Penal Code; but the trial magistrate, consistent with the facts found that the accused was guilty of stealing by a public servant c/ss 265 and 270 of the Penal Code ad convicted him of this offence. The High Court varied the conviction to stealing goods in transit and reduced the sentence. In doing so, the High Court said inter alia that “unless a person is expressly charged with a scheduled offence and he specific relevant section set out with precise particularity, he cannot be convicted of a scheduled offence.’ In the present case the accused was charged with and convicted of stealing Sh200/- TANU money contrary to section 265 of the penal code. section 3 of part I of the schedule to the Minimum sentences Act, cap, 526 of the laws shows that simple theft c/s 265 falls under the minimum sentences Act if it is shown that the offender knew or ought to have known that the thing stolen is the property of the Government, a city council, municipal council, town council, … a political party, a missionary or a charity,” (2) “the money belonged to TANU a political party. Therefore the trial magistrate had no alternative but to impose a sentence of two years and 24 strokes corporal punishment.” (3) Appeal dismissed.