Jumanne Hassani Kaluwona v. R. Crim. App. 732-M-69, 8/1/70, Seaton J.

Jumanne Hassani Kaluwona v. R. Crim. App. 732-M-69, 8/1/70, Seaton J.

The accused was convicted (inter alia) of robbery. The following facts appear from the evidence. The complainant, who was selling ropes in Ujiji, met a small boy who told the complainant that his (the boy’s) father wanted to buy five of the ropes, and he invited the complainant to follow him to his father. The complainant agreed. On their way, the boy picked up a purse from the ground and he put it in his pocket. After some distance accused told both the small boy and the complainant to stop, and he asked the complainant what he had seen. The complainant replied that he had seen a small boy pick up a purse. At the request of the

Accused the small boy handed the purse to the accused. Then the accused, who at the time had a book and a pen, introduced himself as a police officer, and said that someone had lost Shs. 1,000/- and that police were investigating the matter. The accused then asked the complainant how much money the complainant had so that the accused could have some evidence and he further told the complainant that if the complainant then said he had Shs. 205/- and he took it out. Accused then demanded the money. Fearing that he might be beaten up, the complainant handed over the money to the accused. Accused then put some of the money into his book, and he shoved some of it in the complainant’s shirt pocket. Then the complainant asked the accused to return his money. Accused, however, told the complainant to remain there while he took the small boy to police station. The complainant told the accused that he would not remain there because the accused had taken his money. The complainant then followed the accused. After some distance, the complainant noticed that the accused. After some distance, the complainant noticed that the accused was trying to run away. So he dropped his ropes down and caught the accused. As the complainant held him, the accused threw the book, in which he had kept the money, to the small boy who disappeared with it. The complainant, however, held on the accused and raised an alarm. Many people gathered there but no one intervened. While the two were fighting, a Primary Court Messenger came to the scene and caught accused.

            Held: “Violence is one ingredient of the offence of robbery as defined by s. 285 of the Penal Code. Was the violence used by the appellant in connection with the stealing either immediately before or immediately afterwards? On the above facts, the learned Resident Magistrate found that after stealing, the appellant used violence to retain the complainant’s money. I see no reason to differ from such finding, the appellant not having proceeded so far on his way without discovery to be a thief as the appellant had in the case of Gathuri Njuguna v. Rep. (1965) E.A. 583. It seems to me that the conviction could also have been based upon an alternative ground, that is, that the appellant’s acts immediately before the taking of the money amounted to the threat of violence. The appellant told the complainant that if he had no evidence, he would beat up. In the English case of Merriman vs. Chippenham Hundred (1768) 2 East P.C. 709 cited by Russel on Crime, 11^th ed., Vol. 2 at p. 968, the complainant had been stopped on the highway by the accused, who seized some cheeses she had in a cart, for want of a permit. This was a mere pretence, no permit being necessary. After some alteration, the complainant agreed to go before a magistrate to determine the matter, and during the complainant’s absence, other persons in confederacy with the accused for the purpose, carried away the goods. Herwitt, J. left the case to the jury, who were of opinion that the accused’s conduct, in insisting upon seizing the cheese for want of a permit, was a mere pretence for the purpose of defrauding the complainant, and found that the offence was robbery; which was afterwards confirmed by the Court of King’s Bench. It is borne in mind that English precedents over 200 years old must be used with care, particularly regarding the offence of robbery for the common law crime, since made statutory, differs slightly from s. 285 of our Penal Code. the comment on Merriman’s case in Russell (previously cited) is that the conclusion that the acts done amounted to robbery must have been grounded upon the consideration that the first seizure of the cart and goods by the accused was by violence. From the evidence in the present case,

there seems to me to be strong consideration for holding that the appellant obtained the complainant’s money by the threat of violence. The fact that the complainant handed over the money does not make it any less a “stealing” because the handing over was not voluntary but induced by fear.” Conviction for robbery upheld.