R. v. Mangangi Mbuki, Crim. Rev. 2-A-69, 18/9/69, Platt J.

R. v. Mangangi Mbuki, Crim. Rev. 2-A-69, 18/9/69, Platt J.

Council employees in Arusha impounded some six head of cattle which had allegedly strayed within the Council’s jurisdiction, and placed them in an enclosed boma. The accused arrived an hour later armed with swords and sticks and after cutting through the fence of the boma drove away their cattle. They were charged and convicted of theft by persons having an interest in the thing stolen c/ss 263 and 268, Penal Code. The issue was whether the accused had thereby breached the Township Rules in rescuing the cattle and so had stolen them. The Resident Magistrate found there had been a breach.

He inferred an intention to steal and proceeded to convict the accused, awarding the minimum sentence of three years and twenty-four strokes.

Held: “There was evidence that the accused were well aware of the Township Rules, since their cattle had been seized on previous occasions and that they had both secured their release on payment of fees. On this occasion, they forcibly flaunted the rules. But although the Council’s servants had been accustomed to seize and impound cattle, it was questionable whether they, in fact, had the right to do so. Reliance was placed on Rule 82 of the Township’s Rules Cap. 101, which recite as follows: - “82. Any member of the police force or other person acting under instructions of the Administrative Officer may seize any animal straying in any street or public place or upon any Government land and may take such animal to be impounded by the Police ……. No person shall without law full authority, release or attempt to release, and animal from the pound or while on its way thereto.” It would appear from Rule 86 that a person committing a breach of this rule is only liable to a much smaller fine that that imposed by the learned Magistrate. It may have been because of the minimal powers under the Townships Ordinance that the case was brought under the Penal Code. But to take that course, it was necessary to show that the Council had a right to hold the cattle even under section 263 of the code ….. Applying the principle laid down in the section, although the accused were admittedly owners of the cattle, if the latter were subject to the special property or interest of the Council, then as the accused had taken the cattle by force, which would have otherwise amounted to theft, they were guilty of theft….. The problem was whether the council had established any special property or interest in the cattle, so that it could be theft on the part of the accused if they deprived the Council of the cattle without authority or payment of fees. This depended on whether the Council had properly seized the cattle. The evidence is no entirely clear whether the cattle were straying in a street, public place or upon Government land. It was said that the cattle had trespassed into the Town Council area. I take it that it is not an offence for the cattle, to be taken through the town under escort for a proper purpose ….. However, assuming that the cattle were “straying”, it does not appear that Kindon was entitled to seize the cattle. For as Rule 82 provides, the only persons entitled to seize cattle are members of the police force, or other persons acting under the instructions of the Administrative Officer, who may take  the cattle to be impounded by the police. It is quite clear from the evidence that the witness Kindon was not acting as a member of the police force or under instructions of the Administrative Officer. As far as I can see, the Town Clerk, who gave

evidence to the effect that Council employees had been authorized by the Council to seize cattle, did not explain that this was done under the authority of the Administrative Officer. Thus short of the Council’s employees being, for example, special constables, or the Administrative Officer giving instructions, the Council’s employees are not empowered to seize cattle. I am given to under stand that some townships have enacted. It follows that it is quite uncertain whether the cattle in this case had been lawfully seized, and therefore the Council’s right to hold the cattle against payment of fees was not proved. In consequence, section 263 did not come into operation, and the appellants cannot be said to be guilty of theft.” Conviction set aside.