Makangore s/o Kindai and others v. R., Crim. App. 4-A-69, 14/2/69, Platt J.

Makangore s/o Kindai and others v. R., Crim. App. 4-A-69, 14/2/69, Platt J.

The was an appeal by ten men who had been jointly convicted of cattle theft c/ss 268 and 265 of the Penal Code and sentenced to the minimum sentence with and without corporal punishment according to their ages. The facts are that one night 400 cattle were stolen from one Mes hinga who lives in Bashati area, Musoma District. When the alarm was raised, his fellow tribesmen answered it and when the remaining cattle had been counted and the loss ascertained, the tribesmen followed the tracks. The appellants were all in the party following the tracks which led into Msailand. None of the appellants had lost any cattle, but

it was said that they being members of the Watatiru tribe, had justifiably banded together to try and recover the lost cattle, which belonged to one of their fellow villagers. For this purpose they were all armed with bows and arrows. On the third day, during day light, they came to the village of Arashi and saving cattle being grazed. The herdsman fled. The appellants allegedly finding that the cattle tracks ended in this village seized the animals they found there which numbered 45 cattle and nine donkeys. It is not disputed that these beasts were not part of the 400 stolen cattle. Their explanation was that they were taking them to the Police so that investigations could be made. They were however arrested with the cattle on the way. The defence argued on their behalf was that of a claim of right. The Magistrate rejected it ruling that the defence put forward was not open to the appellants, because they took these beasts revenge from innocent people. The appellants had simply taken the law into their own hands, without checking whether any of their cattle were in the village. Such behaviour could not be based on a claim of right.

            Held: (1) “Learned Counsel contended that the facts were that having in minded the background of these appellants, their claim to precipitate investigations was not unreasonable. He conceded that the appellants had acted unlawfully, but argued that the appellants had acted under a claim of right and relied on R. v. BERNHARD (1938) 2 A.E.R. pp. 140- 144 FOR THE proposition that prevent the taking from being felonious, the claim of right must be an honest one, though it may be unfounded in law or in fact. With respect, I would adopt that view of the law.” (2) “I agree with the learned Magistrate that the appellants could not really have thought that they were entitled to act on the basis of a claim of right. But at the same time even if the appellants knew that they were acting unlawfully and had no right to take the cattle from Arashi, I think that it is not unlikely that the learned Magistrate may have found that their suspicions having honestly been aroused, they had decided to take and handover the cattle to precipitate investigations. It was a dangerous course to adopt, which fortunately for every one was arrested by the prompt action of the Inspector. But it is a common experience that people think that if they can get possession of some one else’s property and hand it to the authorities, that that will be a useful leer in obtaining the information they need; indeed this is a form of investigation adopted not only by ordinary people, but also occasionally by those in authority. The issue simply was one of fact whether the appellants intended to deprive the owners of the cattle at Arashi permanently, or whether the appellants, exhausted by their fruitless search, had decided on this ruse to try to force the return of their cattle; and that issue depended on whether they were really going to the local authorities. The learned Magistrate, even on a proper view of the evidence might not have accepted their defence, but cannot say that it is certain that he would not have done so.” Appeals allowed.