Ntankwa v. R. Crim. App. 615-M-70; 10/2/71; El-Kindy Ag. J.

Ntankwa v. R. Crim. App. 615-M-70; 10/2/71; El-Kindy Ag. J.

The appellant was charged with and convicted of killing an animal with intent to steal c/s 279 of the Penal Code. He was sentenced to 3 years imprisonment under the Minimum Sentences act. The facts as found by the Magistrate were that the complainant had tethered two goats near the appellant’s shamba. In the evidencing when he went to collect them one was missing. Later the same day he saw the appellant carrying a sack and a panga. Where challenged, the appellant put down the sack and ran away. On being opened the sack was found to contain the carcass of a goat which the complainant identified as his missing animal.  

Held: (1) “Two issues arise in this appeal. Firstly whether the facts as established ……….. disclosed the offence of killing an animal capable of being stolen with intent to steal, and whether the offence fell within the provisions of the Minimum Sentences act.” (2) “The facts do not show whether the panga had any bloodstains on it or any sign that it had recently been washed so as to suggest that the panga had been used recently. It is not clear how the death of the goat was affected, although the implied meaning was that it       

            Was slaughtered, but the evidence falls short on this issue. It would appear that (Section 279) is intended to cover a situation where the offender who intended to steal the carcass, a skin or any part thereof, killed that animal with intent to steal. The facts as found did not support the charge.” (3) “It is well established that where a person has been convicted for a non scheduled offence a conviction for a scheduled offence cannot be substituted (see JOHN S/O SILANDA/1968 H. C. D. No. 322).  In this case the alternative, on the facts, is a conviction for cattle theft which is a scheduled offence. The determination of this issue involves the question of whether the offence under section 279 is also a scheduled offence. In the case of KATALICHE S/O JOHN 1967 H. C. D. No. 367 his lordship Saudi J. said this: “It appears that this offence falls within the ambit of the Minimum Sentences Act as far as the sentence is concerned”. Section 279 of the Penal Code provided that the sentence would be “the same punishment as if he had stolen the animal”. It could therefore be argued that the sentenced for committing an offence under section 279 of the Penal Code partly falls within the ambit of the Minimum Sentences Act. However I am of a different opinion, bearing in mind that I am dealing with a severe provision of law which should be strictly construed. In my view when section 279 refers to the sentence as being the same as if he had stolen the animal” it means no more than that the sentence should be as stated in the provisions regarding theft, and his would be either section 265 of the Penal Code, which provides a maximum sentence of five years or section 268 which provides a maximum sentence of ten years. Section 268 of the Penal Code was specifically affected by the Minimum Sentences act. Section 279 is not specified in that Act. Therefore, it must be presumed that the legislation did not see fit to fix a minimum sentence for an offence under Section 279 of the Penal Code. I have come to the conclusion that the offence of killing an animal capable of being stolen, with intent to steal c/s 279 of the Penal Code does not fall within the ambit of the Minimum Sentences Act. As it is non scheduled offence, this Court cannot substitute a conviction for cattle theft c/s 268 and 265 of the Penal Code.” (4) The conviction was quashed and the sentence set aside.