Wagunda v. R. Crim. App. 559-M-70; 11/5/71; El-Kindy Ag. J.

Wagunda v. R. Crim. App. 559-M-70; 11/5/71; El-Kindy Ag. J.

The appellant was charged and convicted of stealing by agent c/s 273 and 265 of the Penal Code. He was alleged to have slaughtered one of the offspring of the six heads of cattle entrusted to him for custody. He admitted this but stated that under customary law this was lawful so long as he paid for the offspring. The learned magistrate held that although the taking was lawful under customary law, it was unlawful under statutory law.

Held: (1) “The appellant in my view thought that he was entitled to take the calf as it was permissible in his custom. He was under an honest and reasonable but mistaken belief that he could do so, and this constituted in law a valid defence (section 11 of Penal Code, Cap. 16).” (2) Appeal allowed: Conviction quashed.