Bernad s/o Bernard Kessy, Crim. App. 127-A-69, 14/3/69, Platt J.

Bernad s/o Bernard Kessy, Crim. App. 127-A-69, 14/3/69, Platt J.

The appellant was charged with theft by a public servant, but he was convicted of obtaining money by false pretences. The appellant was a clerk employed at the Old Moshi Primary Court and that it was his duty to receive monies payable to the court and issue receipts. The case concerns the payment of Shs. 200/- as cash bail which according to the procedure, should have been taken on deposit and then returned if necessary. On 28^th April, 1968, Fataeli came to the Primary Court in order to seek the release of one Augustino on bail. On the 27^th April, 1968, the Primary Court Magistrate had told Augustino that he could be released on bail if he could produce a surety. It was in response to that statement that Fataeli came the next day. As the clerk of the court, the appellant told Fataeli that the Magistrate had ordered that Augustino could not be released unless cash bail of Shs. 200/- was paid into court. Fataeli agreed and paid this money to the appellant. The appellant then made out the bail bond which was to the effect that Augustino was granted bail in this own recognizance and that Fataeli had merely stood surety in the sum of Shs. 200. The bail bond did not therefore represent what had really taken place. Augustino was later acquitted for lack of evidence against him. Fataeli then insisted on repayment of his money, but the appellant put him off by saying that the money had been lost when it had been put in the case file and passed to the primary court magistrate. This the primary court magistrate denied, and the matter was reported.

            Held: The main problem is whether the accused is guilty of theft by public servant or of obtaining by false pretences. Section 270 of the Penal Code, which defines the first offence “is satisfied if either the thin stolen is the property of the Government or came into the possession of the offender by virtue of his employment. The learned trial magistrate following RAJABU MBARUKU v. R. (1962) E.A. 669, and BURTON MWAKIPESILE v. R. (1965)  E.A. 407 held that the appellant had not received the money in the instant case “by virtue of his employment”, and then that the money had never come into the Government’s possession constructively. Therefore there could be no theft of any kind. Consequently he entered the alternative verdict mentioned above. The appellant fraudulently induced Fataeli to pay over the money on the strength of a false statement that he Magistrate had ordered cash bail. Fataieli accepted the situation and paid the money to the appellant as the representative of the department of Government, with which he was dealing. The property in the money was intended to pass with payment through the appellant’s hands to Government. As it was a deposit, no doubt a similar sum could be reclaimed later; but not the actual money paid. The appellant had no authority to call for a cash payment or to do anything at all in the matter of bail until the magistrate had made his order. Therefore, as between the appellant and Fataeli, he had obtained the money by false pretences. On this ground the Republic was entitled to support the conviction. As far as a case under section 270 of the Penal Code is concerned, the learned Magistrate was guite right t hold that the appellant had not received the money by virtue of his employment. Since Rajabu’s case it has not been doubted that the phrase by “virtue of employment” relates to the terms of service of the servant, as construed objectively by the court, with a view to the particular transaction in question. It may be that an act would fall impliedly within the terms of his service. But that was not the situation here, since the appellant could not usurp judicial functions. But the difference between this case and those of Rajabu and Burton, is that here the appellant fraudulently professed to e the agent of Government and to receive the cash bail on behalf of Government. In Burton’s case, the accused was a servant, specifically carrying out his duties of collecting tax. In Rajabu’s case, the appellant called for the payment of Shs. 200/- as instructed by the Primary Magistrate. He put himself forward as ostensibly receiving the money on behalf of the Department which employed him. In that case, can he now deny that he did not receive the money on behalf of Government? Section 262 of the Penal Code provides that when a person receives money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received. After Burton’s case, the test as to whether money was received on behalf of another is to be viewed objectively from all the circumstances. It is no longer open to the accused to say that he had decided to steal the money for himself when he was carrying out his proper duties. He is however able to make that plea in a case like Rajabu’s. But it is less clear in a case like the present whether section 262 applies or not. If it did apply, then on the facts, as the money must have been taken sometimes after the receipt, the possibility is that the money belonged to Government and was therefore stolen. As the parties expressed themselves, in that sense, the appellant did receive the money on behalf of Government. But the reality of the situation was this; he was not entitled to receive any money at all. Thought it may be attractive in one sense to estop the accused from

Gainsaying his own fraud, probably it is more realistic to read section 262 as meaning that he who receives on behalf of another, must do so bona fide, and not merely by pretence. For these reasons then I am of the opinion that the appellant was properly convicted.” Appeal dismissed.