Hassani K. Njokole v. R., Crim. App. 28-D-69, -/4/69, Saudi J.

Hassani K. Njokole v. R., Crim. App. 28-D-69, -/4/69, Saudi J.

The accused was convicted of stealing by a person employed in the public service c/s 270 and 265, Penal Code. During the trial and after the second prosecution witness had testified, the particulars of the charge were amended and the hearing was adjourned for 18 days to give the defence enough time for preparation. At the resumed hearing the 3^rd prosecution witness

gave evidence before the amended charge was read over to the appellant and the appellant was asked if he wanted any of the earlier witnesses to be re-called for cross-examination in accordance with s. 209 of the Crim. P.C. In the original and amended charges the offence was the same, being of stealing by a person employed in public service c/s 270 and 265 of the Penal Code. The particulars in both charges differed. In the original they read: - “The person charged between the month of January, 1968 and February, 1968, at Kisarwe District Office in the District of Kisarawe Coast Region, being a person employed in the Public Service as an Administrative Officer, did steal a cheque No. 179456 for Shs. 4949/75 which came into his possession by virtue of his employment”. And in the amended charge they read:- “The person charged between the month of January, 1968 and February, 1968, at Kisarawe District Office, in the District of Kisarawe, Coast Region being a person employed in the Public Service as an Administrative Officer, did steal cash Shs. 4, 949/75 being the proceeds of cheque No. 179456, which came into his possession by virtue of his employment.” On appeal.

Held: “This issue of amendment seemed to me to be serious at first since bib-compliance with the provisions of S. 209 of the Crim. P.C. would have rendered the trial a nullity on the ground that no plea to the charge had been taken (Akbaralli Walimohamedi Dawji v. Regina, 11 T.L.R. 137). Furthermore non-recall of witnesses already examined for cross-examination on the application of the accused could also nullify the trial. Closer examination of the facts of the case leads me to the conclusion that there was no amendment in the true meaning of the term……. In the original charge the allegation was that the appellant had stolen a cheque for Shs. 4,949/75 which came into his possession by virtue of his employment. In the amended charge the allegation was that the appellant had stolen Shs. 4,949/75 being the proceeds of a cheque which came into his possession by virtue of his employment. The cheque number is the same and so is the date of theft in both charges. The definition of “money” in s. 5 of our Penal code includes, amongst other things, “cheques”. This therefore means that theft of a cheque (which is ultimately cashed) implies the theft of the sum shown on such a cheque. It was so held by the court of Appeal in Menzour Ahmed s/o Sheikh Soleh Mohamed v. R. (1957) E.A. 386, while construing the proper meaning of “money in s. 5 of the Kenya Penal Code which is exactly similar to s. 5 of Tanzania Penal Code. It is therefore clear that the purported amendment was unnecessary as it mean nothing in fact so that non-compliance with s. 209 Crim. P. C. is of no effect.” Appeal dismissed.