Ramadhani Mugwena v. R. Crim. App. 218-A-68, 10/2/69, Platt J.

Ramadhani Mugwena v. R. Crim. App. 218-A-68, 10/2/69, Platt J.

The appellant was convicted of stealing from the person of another contrary to sections 269(a) and 265, Penal Code, and sentenced to 12 months’ imprisonment. The appellant and his brother Gabriel Sendoro were drinking in a bar with other persons. Gabriel had sold two heads of cattle for Shs. 465/-. During the drinking session, Garbriel fell asleep and the bar owner suggested that lest Gabriel should lose any money, he should be searched. The appellant is said to have got hot-tempered and refused to allow any one to search Garbriel other than himself. Shs. 3/- and a cigarette lighter and a packet of cigarettes were found in his pocket and a purse containing an unknown number of notes was found in his underwear. The appellant left the club before Gabriel awoke. When he did so, he said that his money Shs. 461/- was missing and also his lighter. Leornard informed him what had happened and next day he asked the appellant for his money. The latter denied having taken anything. But Gabriel traced his lighter at the house of the witness Muranda where the appellant had left it behind the night before.

Held: “[T]he question is whether the facts so found established the case of theft from the person of another as the appellant was charged and convicted. When the appellant took the money, was there a trespass? It was conceded that because of their relationship the appellant was entitled to act in defence of his brother’s property. He refused to let the bar owner search Garbriel. Through Gabriel’s temporary incapacity, it became necessary for the appellant to prevent others from interfering with Gabriel and therefore took temporary custody of Garbriel’s money and property. The taking was lawful or at least with claim of right, unless there was evidence that at the time it was proved that the appellant intended to steal. That was not proved. Later on, he converted the money to his own use. The fact that he later converted the money, causes no difficulty under the present definition of theft, though under English law it might have been necessary to consider whether the conversion related back to the original taking so making it unlawful. Under the definition of theft in section 258 of the Penal Code, it is sufficient to say that the original taking was lawful and accepted by all those present as such, but that later the appellant converted the money to his own use. Therefore the appellant was not guilty of stealing from the person but simple theft contrary to section 265 of the Penal Code. I substitute a conviction accordingly by virtue of section 181 of the Criminal Procedure Code.”