Rwenzola v. R. Crim. App. 148-D-71; 10/6/71; Mwakasendo Ag. J.

Rwenzola v. R. Crim. App. 148-D-71; 10/6/71; Mwakasendo Ag. J.

The appellant was convicted of stealing postal matter, to wit, one Post Office Pass Book, c/s 267 of the Penal Code. one Alfons Mwakowiri, a depositor in the Post Office Savings Bank surrendered his Pass Book No. 3690 to the Post Master for onward transmission to the P. O. Headquarters in Nariobi so that a new book bearing the same number could be returned in exchange. The new book was accordingly dispatched to the Post Master, Iringa who in turn handed it over to Mwakowiri. At about the same time the Post master received a report that another person giving the name of Mwakowori was inquiring about Pass Book No. 3690. The Postmaster asked Alfons Mwakowori to return his pass book in order that a trap could be set for the alleged impostor. Subsequently, the appellant called at Post Office, saw the Postmaster and signed the necessary documents whereupon the Postmaster handed over the Pass Book No. 3690. The appellant was arrested on leaving the Post Office and charged. The appellant’s defence was that he and his son Alphons Rwezaula had Post Office Savings Bank accounts and both Pass Books had been sent to the Headquarters in Nariobi. They had not been returned and he produced copies of letters he had written enquiring about the books. On a later inquiry at the Iringa Post Office he was told that the pass books had been received. He collected one of the books and was thereupon arrested.

Held: (1) “The learned Magistrate in a long judgment reviewed the facts and found as a fact that the Postmaster gave the Post Office Pass book to the appellant knowing full well be was not entitled to it ….. in this definition of heft [in section 258 (1) of the Penal Code] a person can only be guilty of stealing a thing if, with the requisite intent, e takes the thing capable of being stolen without the consent of the owner whether general or special.” (2) “In R. v. Turvey (1946)2 All E. R. 60; 31 Cr. App. R. 154 …… [it was held that] where, pursuant to the master’s instructions, the property was actually handed to the intending thief by the servant…… the property was not taken ‘invito domino’ and that eh appellant had, accordingly, been wrongly convicted of larceny ……whatever the intention of the appellant may have been he could not be convicted of theft unless the prosecution satisfied the court that he took the pass book ‘invito domino’ i. e. without the consent of the owner. This in my view they failed to do.’ (3) Appeal allowed.