R. v. Nicholaus s/o Bugomola, Crim. Rev. 1-M-72, 17/8/72.

 

R. v. Nicholaus s/o Bugomola, Crim. Rev. 1-M-72, 17/8/72.

            MAKAME, J. – This case concerns a Forest Assistant, Nicholaus s/o Bugomola, who was convicted of stealing Shs. 15/= by a public servant and sentenced to a wholly suspended prison term of 18 months. It was admitted in revision, a Notice of Enhancement having been served on the accused.

            The accused was found to have received from a firewood seller Shs. 18/= as a licence fee and to have acknowledged receipt of only Shs. 3/=. Following the decision in YESAYA GWESEKO v. (1970) H.C.D. n. 160 in which my brother Biron differed from the views of Spry, J. (as he then was) in Rajabu Mbaruku v. R. (1962) E.A. 699, the learned Resident Magistrate found that the accused in the present case received the difference of Shs. 15/= “by virtue of his employment” and convicted him accordingly. I am of the view that confining “by virtue of his employment” only to acts an accused person does other than in breach of what he is strictly employed to do is too narrow an interpretation and even spry, J. (as he then was) was of the same opinion – only that because of the times he felt constrained to follow the strict English interpretation. In the broad spirit of our day, and considering the evil aimed at by the Law, I think the words should be interpreted less narrowly, to include situations in which an accused person criminally comes by a thing which he would not have come by but for the semblance of his office. I am thus inclined to agree with the view of Biron, J. if an offence has been committed in the present case it would be within the ambit of section 270. [The court then proceeded to dismiss the appeal and enhance the sentence to six months’ imprisonment, applying s. 5 of the now repealed Minimum Sentences Act, Cap. 526].