Andrea Otieno v. R., Crim. App. 177- A-69; 6/4/70; Platt J.

 

Andrea Otieno v. R., Crim. App. 177- A-69; 6/4/70; Platt J.

The appellant was charged and convicted of theft by servant contrary to section 271 and 265 of the Penal Code; it being alleged that as the depot Manager of Backitt & Colman (Industries) Ltd. the appellant stole goods to the value of Shs. 21, 194/09. It was not disputed that the appellant, being solely responsible for the operation of the depot, had to deep records of the stock received and sold, the money proceeds of the stock paid to bank and the physical stock. On the 25^th September 1968 the Sales Director of the Company in East Africa visited the Arusha Depot and took part in the monthly check of the stock. Deficiencies were noted.

            Held: “There first inquiry to be made is whether the learned Magistrate considered that the appellant had stolen the goods or misappropriated money as a result of the sale of the goods ……it appears that the appellant’s fraud was to misappropriate the money proceeds of the sales of the goods and not the goods themselves. If the appellant was entitled to sell the goods

As appears to have been the case ……… he cannot he cannot be said to have “stolen” the goods by selling them. He ought then to have been charged with the theft of the money which came into his hands by virtue of his employment. I cannot find any authority to alter the charge or substitute a verdict for the theft of money rather than goods……. In my view there was confusion throughout the trial as to whether the appellant was guilty of stealing the goods or the money. It appears possible that the appellant’s defence was embarrassed ….. The defence is technical, but not without importance where a person had charge of another’s property with authority to deal with that property. Accordingly I consider that the charge was not made out and that the appeal must succeed.”