R. v. Mohamed s/o Ndowe and others, Crim. Sass. 8-Iringa-70, Pandu Ag. J.

R. v. Mohamed s/o Ndowe and others, Crim. Sass. 8-Iringa-70, Pandu Ag. J.

The three accused who were watchmen were charged with murder. On the date in question an unknown number of thieves including the deceased came to steal corrugated iron sheets from a house which the accused were guarding. The deceased himself broke into the house through the window. The first accused person,

Mohamed Mdowe, tried to throw at the deceased a club which the thieves had come with. Then the deceased came at him with a bill-hook which he had at that time, and the first accused struck the billhook with a club but the club was broken. The second and third accused helped the first accused, and they tried to strike the billhook with clubs but these were also broken. It was then that the thief fell down, and the accused persons held the billhook and struck the deceased with it. The accused heard a bullet shot which was fired by the other thieves who had come with the deceased, and they, the accused, ran off into the bush.

            Held: (1) “The law is that the accused could defend themselves and their employer’s property. All this happened when the accused were on duty and the deceased and his fellow-thieves went to steal. Before this they had already stolen nine times and locked the watchman inside so that they could steal safely. This shows clearly that the place was dangerous, and therefore the employer had to employ several watchmen to guard his property. I must say that a person is not allowed to kill a chief to retrieve his stolen property. He can arrest him and take him before the court. But if the thief uses force so that the property which he has stolen should not be recovered, and in doing so he uses a weapon in a manner which could cause grievous harm to or kill, the owner, the owner or the person who guards the property can defend to the extent of even killing the thief, because he will be defending his life and his property, and I am of the same opinion as all the assessors that none of the accused used more force that was necessary in law, and they were doing so in defence of their lives and their employer’s property.” (2) “I therefore find that all the accused persons have committed no offence, and I accordingly discharge them all.”