Makambila v. R. (PC) Crim. App. 202-M-70; 6/7/70; Mnzavas Ag. J.

Makambila v. R. (PC) Crim. App. 202-M-70; 6/7/70; Mnzavas Ag. J.

The appellant was charged with house breaking c/s 294(1) of the Penal Code. The complainant gave an account as to how he left his house to visit a friend and how, while absent, the appellant entered his house and took away one bucket, one cooking-pot and one panga and three tins of potatoes. The appellant on being asked whether he admitted the facts said: “The facts he has stated are true”. There after the primary court magistrate proceeded and convicted the appellant as charged on his own plea of guilty. In mitigation the appellant said that some of the things belonged to him and some to his father …. And agreed that he did make a mistake in taking the things without the permission of his father. After this the court sentenced the appellant to 2 years imprisonment and 24 strokes corporal punishment. Over and above the Appellant’s defence of claim of right, there was also a total lack of evidence as to whether the door to the house was locked or was only ajar when the appellant entered the house and took the things.

            Held: (1) “The appellant’s defence of claim of right was not rebutted. Having so found the matter squarely falls under Section 9 of the P.C. which says inter alia “A person is not criminally responsible in respect of an offence relating to property, if the act done….. by him with respect to the property was done in the exercise for an honest claim of right without intention to defraud”. In this case there is no evidence to show that the appellant had no right to the property which he honestly believed to be his father’s property. Nor is there evidence of intention to defraud (2) “As to the alternative charge of entering a dwelling house with intent to commit a felony c/s 295 of the Penal Code …. I fail to see any evidence to support this lesser charge ….. Before the appellant is convicted of this alternative offence it must be proved that at the time of entering the hose he had already formed the intention to commit a felony therein. There is no such guilty intention. On the contrary as I have already stated he believed at the time for entering the house that he had a bona fide claim of right to take the property he took”. (3) The conviction quashed and the sentence set aside.