Hussein Kabona and another v. R., Crim. App. 851-M-69, 2/1/70, Seaton J.

Hussein Kabona and another v. R., Crim. App. 851-M-69, 2/1/70, Seaton J.

The two appellants were jointly convicted of corrupt transaction c/ss 3(1) and 3(3) (a), Prevention of Corruption Ordinance. Both of the appellants are messengers of the Simbo Primary Court and employees of the Kigoma District Council.  It was alleged by the prosecution that sometime in April, 1969 they demanded and received from Ntabindi d/o Gwibunza the sum of Shs. 120/- as a reward for forbearing to prosecute her for the offence of unlawful possession of native liquor commonly known as “moshi”.

            Held: “The learned Resident Magistrate found it quite clear from the evidence that in their capacity as messengers of the primary court, the two appellants used to affect arrests for certain offences. He was further satisfied that the two appellants did in fact arrest Ntabindi, P.W. 2, for, ostensibly being in possession of “Moshi”, and that after

such act, they promised to release her if she gave them money and did so when she gave them Shs. 120/-. Although there was no satisfactory evidence that Ntabindi was in fact in possession of “moshi” and therefore that the arrest was proper, the learned Resident Magistrate held, on the authority of Attorney-General vs. Shamba Ali Kajembe (1958) E.A. 505, that proof of the corrupt intention on the part of the appellants and that the act of the appellants was in relation to their principal’s affairs were sufficient on which to base the conviction of the appellants. The case cited dealt with s. 9(1) of the Penal Code, which has since been repealed and replaced by Cap. 400(3) (1), with slightly different wording: for example s. 91(1) concerned itself only with public servants; and the words “in the discharge of the duties of his office” at the end of the sub-section have been replaced by “in relation to his principal’s affairs or business” in Cap. 400(3) (1). However, I would agree with respect with the learned Resident Magistrate’s finding as to the applicability of the case cited to the present law as set out in Cap. 400 (3) (1). From a perusal of the record, it appears the finding and convictions are amply supported by the evidence.” Appeals dismissed.