Rashidi v. R. Crim. App. 35-D-71; 14/5/71; Biron J.

Rashidi v. R. Crim. App. 35-D-71; 14/5/71; Biron J.

The appellant, a police corporal was convicted of stealing by a person employed in the Public Service c/s 270 and 265 of the Penal ode and sentenced to 2years imprisonment and 24 strokes of corporal punishment. The appellant was detailed to investigate a case of bar – breaking and stealing. In the course of his investigations he searched the house of a suspect. At the time of the search the suspect and two other persons were present. The three of them were also searched and money totaling Shs. 181/25 taken from them by the appellant who kept it. The warrant, under the authority of which the appellant purported to conduct the search, was unsigned. At the hearing of his appeal the appellant contended that the prosecution had not established that he money was the property of the Republic nor that if came into his possession by virtue of his employment and the offence was consequently not a scheduled offence under the Minimum Sentences act 1963. Appellant had admitted in evidence that a police officer could search without a signed warrant if no magistrate is available and the search must be carried out without delay.

            Held: (1) “I dealt with this question [when and when not property which comes into possession of a public servant does so by virtue of his employment within he meaning of section 270] at length in my judgment in Criminal Appeal No. 682 of 1969, Yesaya Gweseko v. R. and Criminal Appeal No. 824 of 1969, R. v. Yesaya Gwesko (appeal and cross-appeal by the Republic).” (2) “There is authority to the effect that where public servant obtains property as a result of an act done outside the scope of his authority the property cannot be said to have come into his possession by virtue of his employment. This very narrow construction is founded on an English case. However, as stated by Sir Charles Newbold, the then President of the Court of Appeal for East Africa in Rashid Moledina & Co. (Mombasa) Ltd. & Others v. Hoima Ginneries Ltd. (1967) E. A. 645, with the abolition of appeals to the Privy Council, this court is no longer bound by English decisions.” (3) “Although I do not agree with the appellant that the search was lawful, I agree with the purport of his evidence that the money which he obtained as a result of the search came into his possession by virtue of his employment as a Police Officer.” (4) Conviction upheld; Appeal dismissed.