Michael Noah v. R., Crim. App. 577-D-69, 8/1/70, Mustafa J.

Michael Noah v. R., Crim. App. 577-D-69, 8/1/70, Mustafa J.

Appellant was convicted (inter alia) of stealing by agent c/s 273 (b), Penal Code. Appellant was an employee of the Matenge Native Co-operative Union, with the task of managing the Ushirika Bar belonging to the Union. He was alleged to have stolen Shs. 100/- entrusted to him by his employers to buy a water filter.

            Held: “The trial magistrate in his judgment held: - “Because even though the accused claims to have used this Shs. 100/- to buy spirits for the employer, but his is not what he was told to do and because he reached that decision at his own will and without prior consultation to his principals and the person who entrusted him with money and doing so for money, the act is stealing in terms of ss. 258(2)(c) and 273(b) of the Penal Code. I therefore find that his admission as to his having misappropriated the Shs. 100/- is in itself a confession of the 2^nd count charged and this supports the prosecution case.” The appellant admitted he received the Shs. 100/- to buy a water filter but said that he had used it to buy spirits for the bar. Apparently the water filter was also for the bar. If that were, I am of the view the trial magistrate was wrong to hold that there was any theft when he used the money to but spirits for the bar instead of a  water filter. I do not think there was any theft in the circumstances.” Appeal allowed on this and other grounds.