R. v. Tadeo s/o Mngereza, Crim. Rev. 152-DSM-71, 31/5/72, Mwakasendo, Ag, J.

 

R. v. Tadeo s/o Mngereza, Crim. Rev. 152-DSM-71, 31/5/72, Mwakasendo, Ag, J.

The accused, the second accused at the trial, was convicted pursuant to Section 311(1) of the Penal Code or receiving stolen property and was placed on probation for a period of  

twelve months. At the trial it was proved that the property received by the second accused had been stolen by the first accused in the course of committing an offence falling under section 296(1) of the Penal Code, to wit, breaking and entering a school house and committing a felony therein, that is, theft. It was also proved that he second accused knew or had reason to believe that the property had been stolen, but it was not proved that he knew or had reason to believe that it had been stolen in the course of committing an offence under Section 296(1) of the Penal Code. The trial Magistrate appears to have found as a fact that the second accused, when receiving the property from the first accused, knew or had reason to believe the same to have been feloniously stolen, taken, extorted, obtained or disposed of. The Magistrate was also of the view  that for the provisions of the Minimum sentences act, 1963 to apply to the second accused, it was incumbent on the prosecution to prove that he knew or had reason to believe that the property had been stolen in the course of committing an offence under section 296 (1) of the Penal Code. As the Magistrate thought the prosecution had not so proved, He held that the provisions of the Minimum Sentences Act 1963 did not apply to the second accused.

            Held: (1) “While it is true that in the present case no evidence was led to show that the second accused knew or had reason to believe that the property he was receiving from the first accused had been obtained in the course of committing an offence under Section 296 (1) of the Penal Code, I do not think it is necessary for the prosecution to prove either that the receiver knew or had reason to believe that the property received was feloniously obtained or obtained in the commission of an offence under Section 296 (1) of the Penal Code. There is, no doubt, to be found dicta to the contrary in a number of the decided cases, but I think the question at issue was finally settled by the decision of a full Bench of this Court in the case of Republic v. Mohamedi Naweka (1964) E.A. 353. At page 356, Sir Ralph Windham C.J., delivering the judgment of the court, said:- “For the sake of clarity we would state that we construe items 6 A and 3, when read together, to mean that, if an accused person has been convicted of receiving stolen ……… property contrary to section 311(1) of the Penal Code, and if it is sought to show that the property was stolen in the course of the commission of the offence mentioned in item 3, then it is incumbent on the prosecution to have proved two things only in relation to guilty knowledge: first, of course, that the receiver knew or had reason to believe that it had been feloniously stolen, taken, extorted, obtained or disposed or, this being the requirement of Section 311(1) itself and the necessary pre-requisite to conviction under that section: and secondly, that the thief (i.e. the “offender” under item 3) knew or ought to have known that the thing stolen was the property of the government or other body mentioned in item 3. It is not necessary, in our view, to prove either that the receiver knew or that he knew that the thief knew, that the thing stolen was the property of the Government or other such body.” Again at page 358 the court said: - “The accused in the present case had such a guilty mind or guilty intent,

In that he received the stolen goods knowing or having reason to believe that they were stolen. Whether he knew or had reason to believe that they had been stolen in the commission of the burglary goes beyond any general requirement of the law regarding the necessity for mens rea; nor as we have said, does anything in the Minimum Sentences Act, 1963, make it necessary to prove any such additional kind of guilty knowledge in order to bring this accused within item 6A read together with item 5, or indeed any accused within item 6A read together with any of the other items from 1 to 6 inclusive, of Part I of the Schedule to that Act”. On the principles laid down in the Mohamedi Naweka case, it is obvious that the learned trial Magistrate was wrong in requiring the prosecution, for the purposes of the Minimum Sentences Act, 1963, to prove that the receiver, i.e. the second accused, knew or had reason to believe that the property in question had been stolen in the commission of an offence under section 296(1) of the Penal Code. That, as was said in the Mohamedi Naweka case, goes beyond any general requirement of the law regarding the necessity for mens rea. The learned trial Magistrate ought therefore to have held that the provision of the Minimum Sentences Act 1963, applied in respect of the second accused. That he did not do so was a grievous error on his part. Accordingly, the order placing the accused on probation id set aside.” (2) “I will then turn to the question of sentence. Accused who was given an opportunity to adduce reasons why sentence prescribed by law should not be imposed upon him, told the court that he was a married man with three children. Both his parents were dead and he was left alone to fend for his young brothers and an old grandmother. He owned a ‘duka’ and was a first offender. Accused ended by praying for leniency …… There is, I think, abundant authority to indicate that the fact that an accused person is a married man with a number of relatives depending on him is not a factor amounting to “special circumstances” under the Minimum Sentences Act, 1963.” (3) “It may however be argued that the question of sentence to be imposed upon the second accused is no longer governed by the repealed provisions of the Minimum Sentence Act, 1963. Sub-section (2) of section 12 of the Minimum Sentences Act, 1972, (Act No. 1 of 1972) provides: “(2) Where before the coming into operation of this Act, a person has been convicted of a Scheduled offence and sentence is not passed until after the commencement o this Act, the Court shall pass a sentence in accordance with the provision of this Act.” The question next to be decided is whether or not the accused in this case can be said to have been convicted but not sentenced before the coming into operation of the Minimum Sentences Act, 1972. There is I think no dispute as to the accused having been convicted of a Scheduled offence. But as regards sentence one has to consider the effect of a probation order – whether or not a probation order is a sentence. In the case of Juma Shabani Keshallilla v. Republic (1963) E.A. 184, the Court of Appeal for East Africa said: “Mr. Jadeja, who appeared for the appellant, in a clear and concise argument, submitted that when a resident magistrate made a probation order under Section 305 no sentence was imposed on the offender. We agree with him. If any support were needed

for that submission in addition to the clear words of Section 305 (1), Section 306 (2) which empowers the Court when the offender is subsequently brought before it to “pass sentence”, which sentence must be the sentence on the original conviction.” On the authority of the Keshallilla case I would hold that no sentence was ever imposed upon the second accused by the trial court. His case can therefore be dealt with under the provisions of the Minimum Sentences act 1972.” (4) “Although the second accused is undoubtedly a first offender, and there are circumstances in this case which would make it just and equitable for the court not to apply the provisions of the Minimum Sentences act 1972, unfortunately, the accused cannot b saved from having to suffer the penalty prescribed under the new Act for he simple reason that the value of the property obtained by him in the course of the commission of the offence for which he stands convicted, exceeds one hundred shillings; it is in fact Shs. 1050/= The accused is therefore liable to the minimum sentence prescribed by Section 4 of the Minimum sentences Act, 1972.” Accused sentenced to 3 years’ imprisonment.