Ndiwayi v. R. Crim. App. 125-D-71; Biron J.

Ndiwayi v. R. Crim. App. 125-D-71; Biron J.

The appellant was convicted of stealing by agent c/s 273(b) and section 265 of the Penal Code and sentenced to 8 months imprisonment. The prosecution’s case was that the complainant apparently wishing to purchase a rifle and not having the where withal to do so, borrowed 100/- from a cousin of his and handed the money to the appellant in order to use it in a business enterprise for the purchase and sale of fish. The appellant retained the money.

            Held: (1) (After guoting the provisions of section 261 and 273 of the Penal Code) “In view of the fact that in this case the money was entrusted to the appellant to engage in a business enterprise, in retaining such money he cannot be held to have stolen it as an agent, as I think is abundantly clear from the wording of the sections set out.” (2) [Distinguishing Bwire v. Uganda [1965] E. A. 606] “There is no question of the appellant having to return the 100/- given him by the complainant. Supposing, for argument’s sake, that in compliance with his agreement with the complainant the appellant has purchased fish for the Shs. 100/- and owing to a glut in the market he only succeeded in selling them at a considerable loss, or even not at all and the fish rotted, would be then be held liable as a thief for such loss? On my view of the transaction as a whole I am very far from persuaded that the retention by the appellant of the Shs. 100/- he was furnished with to engage in a fish venture constitutes a criminal offence at all, and in the absence of any authority in that behalf, I find myself unable to uphold the conviction”. (3) Appeal allowed.