Ernest Lukali v. R., Crim. App. 731-M-69; 31/1/70; Seaton J.

Ernest Lukali v. R., Crim. App. 731-M-69; 31/1/70; Seaton J.

The appellant was convicted of conversion not amounting to theft c/s 284, Penal Code. The appellant and the complainant were friends and both employed by the Ministry of Agriculture, Food and Cooperatives. As part of his duties involved field extension work, the complainant was issued with a motor cycle by his Ministry. It was alleged by the prosecution that the appellant on 8^th March 1969 at 8 pm converted the cycle to his own use but not so as to be guilty of theft contrary to section 284 of the Penal Code. For the prosecution, the complainant testified that he was issued with cycle for his own use and never authorized or consented to its use by the appellant. When not using the cycle, he parked it outside his house but it had no ignition key. On the night in question, he heard a noise and when he looked, saw the appellant going off on the cycle at a distance of about 70 yards from him. Two hours later, the appellant came back and reported that he had had an accident. The defence was that the complainant not only consented to the appellant taking the cycle but accompanied him on the night of 8^th March. The accident occurred, according o the appellant’s testimony, when he was teaching the complainant how to use the cycle but when confronted in cross-examination, admitted having written to the appellant a letter Exhibit D. 1, thanking him for “your kind co-operation in training me to drive” the motor cycle. There was also testimony of the landlord that he use to see the appellant carrying the complainant on the cycle in the evening time and when he asked where they were going, the appellant said he was teaching the complainant ho to drive. The learned resident magistrate commented in his judgment that even if the appellant was with the complainant (P.W. 1) at the material time, which he doubted, he could not escape criminal responsibility by sheltering behind the consent of the complainant (P.W.1) because the latter had no authority to let anyone else use the cycle.

            Held: (1) “With respect, I do not think the learned resident magistrate sufficiently considered the question whether the cycle was taken “without colour of right”, one of the essential ingredient of an offence under s. 284 of the Penal Code. whether or not it was against the instructions of the complainant’s senior officials to allow others to use the cycle was less material than the issue whether the appellant took the cycle with the complainant’s permission. On this latter point, the evidence was at best equivocal. The case of R. v. Burns (1958) E.A. 142 was referred to by the learned resident magistrate and I would respectfully agree with the learned magistrate that in that case, Burn’s conduct was inconsistent with the owner’s right and therefore constituted conversion. But in the present case, the relationship between the complainant and the appellant was such that the letter might well have believed his taking of the cycle was authorized. It is this subjective belief, as learned advocate for the appellant has submitted, which deprives his conduct of criminality.” (2) Appeal allowed and conviction quashed.