Lawrence Amuli v. R., Crim. App. 210-A-69, 31/10/69, Platt J.

Lawrence Amuli v. R., Crim. App. 210-A-69, 31/10/69, Platt J.

The appellant was charged with theft by public servant c/ss 270 and 265, penal Code, and convicted of simple theft c/s 265, Penal Code. He was sentenced to 9 months imprisonment. The appellant was employed as a building inspector by the National Housing Corporation. At pay parade one day, another employee, Josephat Anasa, was absent, and the sum of Shs. 510/- due to him was taken over by the appellant from the accounts clerk. The appellant undertook to pay Josephat and signed the schedule against Josephat’s name as having received the money. He never gave it to Josephat. He later claimed to have lost it, but the court found that he had stolen it. The charge as laid was theft by a public servant. There appears to have been an argument that the National Housing Corporation was an organ of Government so that the appellant was employed in the public service. The learned Magistrate seems to have been undecided whether this was so or not. He left the matter open and took two further objections purporting to show that the transaction was not within the terms of the appellant’s service. First it was said that it was not part of his duties to undertake to pay Josephat, and secondly he had not received the money on behalf of the Corporation but on behalf of Jusephat. Therefore the appellant was found guilty of simple theft.

            Held: (1) “There is no doubt that legally the National Housing Corporation is a separate entity distinct from Government. And that will be seen quite clearly from Parts V & VI of the National Housing Corporation Act, Cap. 481. It is not to be thought that because the Minister for Lands and Housing has some

Control over the Corporation therefore the Corporation is a part of Government. While that be understood in a general sense, it is not so in law. The learned Magistrate need not therefore have any further qualms in refusing to apply the Minimum Sentences Act, or section 270 of the Penal Code, to property or employees of the Corporation.” (2) “It is equally clear that on the last point the appellant did not receive the money on behalf of Josephat, but on behalf of the Corporation in order that he should pay Josephat. What really happened was that, without the authority of Josephat, one officer of the Corporation in order that he should pay Josephat. What really happened was that, without the authority of Josephat, one officer of the corporation allowed the appellant to receive the corporation’s money in order to effect payment on behalf of the Corporation to Josephat. The money remained that of the Corporation while it was in its servant’s hand.” (3) on the other hand, it may be arguable whether the  money came to the appellant’s hand by virtue of his employment, (See section 270 of the Penal Code) or on account of his employer (see section 271 of the Code). But it is not necessary to decide these questions because the appellant was not a public servant and he was not charged under section 271 of the Penal Code. I am content to support the conviction found of simple theft because the appellant was not public servant within the meaning of section 270 of the Penal Code however else he may have been charged under section 271 of the Code.” (4) “It remains to consider sentence. The appellant had acted in a most irregular manner by failing to pay the wages of another person engaged in building work. It was a gross breach of trust seriously embarrassing the Corporation. The sum was not inconsiderable. Inasmuch as the corporation was created to further the aims of government in providing housing, and there is little doubt that this type of theft from the corporation must be deal with a similar approach to that prescribed in the Minimum Sentences Act. Accordingly the appellant is called upon to show cause why his sentence should not be enhanced.” (5) Appeal dismissed and sentence enhanced to 15 months.