Olipa d/o Selemani v. R. Crim. App. 179-D-69; 12/2/70; Makame Ag. J.

Olipa d/o Selemani v. R. Crim. App. 179-D-69; 12/2/70; Makame Ag. J.

The appellant was convicted of housebreaking and stealing, c/s 29(1) and 265 of the Penal Code, and was sentenced to concurrent prison terms of two years and six months. The complainant went out to work after locking up her room. When she returned, she found her items of apparel, Shs. 20/80 cash and a notebook missing. The total value of the things was Shs. 45/80. A window was open and the door was locked as she had left it. On the door was an unsigned handwritten note, suggesting that the complainant in this case was a prostitute interfering with the writer. In her defence, the appellant says she did take the things, except the notebook and the cash. She found the door closed and the padlock was on the door, but it had not been locked. She pulled it and opened the door. She is the author of the little note and she did all this because her husband was sexually intimate with the complainant. When the appellant got home with the clothes, she realized she would be in trouble, so she threw them away into a river.

            Held: (1) “In law, the house was broken into, even if one accepts the appellant’s assertion that the padlock was not locked. But this is a peculiar case. Especially in view of the note the appellant wrote and left on the complainant’s door, I am inclined to believe that the appellant genuinely believed that her husband was sleeping with ‘the complainant, and it seems certain that she took away the things just to get her own back and annoy the complainant. It was not been established beyond reasonable doubt that the appellant had any of the intents necessary in a charge of theft. I believe that she threw away the things into a river, but it would appear that this act was thought of after the act of taking away the things from the house, when the appellant realized that she had done a silly thing. On the other hand, I have no reason to disbelieve the complainants that among the clothes were a notebook and some cash tied in a headgear, and it seems certain that in her panic, the appellant threw these away with the clothes.” (2) “In the circumstances, it is clear that the appellant opened the door and took away the things with intent to annoy the complainant, which is an offence under section 299 of the Penal Code. I allow the appeal against conviction and sentence, and substitute for them a conviction for criminal trespass, contrary to section 299(1) of the Penal Code and a sentence of a fine of Shs. 200/- or three months imprisonment. I also order the appellant to pay Shs. 451/80 compensation to the complainant.”