Issah Nkalinga v. R., Crim. App. 618-D-68, 15/11/68, Hamlyn J.

 Issah Nkalinga v. R., Crim. App. 618-D-68, 15/11/68, Hamlyn J.

The appellant was charged with and convicted of an offence of stealing by a public servant, c/s 265 and 270, Penal Code. He was sentenced under the Minimum Sentences Act to two years imprisonment and to twenty-four strokes. The complainant had obtained a loan of Shs. 2,400/- from the National Development Credit Agency and was re-paying such loan by instalments from time to time. On 26 January 1966, he went to the Agricultural Office, Dodoma with a sum of Shs. 500/- as a further installment. There he found the appellant, who is an Assistant Field Officer in the Agricultural Department at Dodoma. The appellant took the complainant to the Revenue Office, but he time being about 12.30 p.m. that office was shut. Then the appellant persuaded the complainant to leave the Shs. 500/- with him (which he did) and the later was handed a written acknowledgement of receipt. The appellant then appropriated the money for his own purposes.

Held: “In order to bring the matter within the ambit of [s. 270, Penal Code], the prosecution must prove the offender to be in the public service and either that the property was that of government, or else that the property came into the possession of the offender by virtue of his employment. Clearly the property was not at that time that of government, even though that is what the charge alleges. The money was the property of the complainant and he had collected it (probably with much difficulty) in order to re-pay a part of his loan. The fact that it was (as it were) enroute to government is neither here nor there ….. Did the property come “into the possession of the offender by virtue of his employment” then? I think that this certainly cannot be the case. The complainant merely paid the money to this Assistant Field Officer who was standing about at the Agricultural Officer. The fact that they both went off to the Revenue office to pay in the money (which office they found closed) seems to indicate that he proper recipient of the cash was a Revenue Officer – would indicate that his duties law in the realm of practical agriculture in the field rather than in the more sedentary work of a receiver of government dues …. If it was the duty of the appellant to receive monies in repayment of loans, then it would be easy enough for the prosecution to say so and to lead evidence to that effect. There can be no guess-word in the matter and the benefit of any doubt in regard to this (as indeed in respect to any other circumstance) must go to the accused.” Conviction quashed and conviction for simple theft c/s 265, Penal Code, substituted. Sentence altered to nine months imprisonment without corporal punishment.