Ramadhani s/o Bakari v. R., Crim. App. 216-D-68, 19/5/69, Hamlyn J.

Ramadhani s/o Bakari v. R., Crim. App. 216-D-68, 19/5/69, Hamlyn J.

The appellant was convicted of housebreaking c/s 294(1), Penal Code. The appellant occupied a room in the house where the complainant – one Clementine – also resided. At about 7 a.m.  On the day in question, the complainant left her room to go to the market; she locked the door before leaving. It appears that, though each room of the house is separated from its neighbor by a wall, such division does not reach up to the apex of the roof but goes only part-way; there is no ceiling in any of these rooms. The complainant returned to her room at about 11 a.m. and found the appellant climbing the intervening wall on the way back to his own chamber. The alarm was raised and the accused’s room visited room in such position as would enable him to mount it and to climb over the top of the separating partition. The complainant examined he belongings and found a sum of Shs. 12/- silver had disappeared from beneath her mattress. The accused man was arrested upon the charge on which he was tried.

Held: “The only matter for consideration in this appeal is the question of whether to facts as found by the learned magistrate constitute the offence of house-breaking. Learned counsel for the Republic supported the conviction, maintaining that the breaking and entering which from necessary ingredients of the offence have both been demonstrated. This is undoubtedly true in so far as the “entering” by the appellant of the room of the complainant is concerned and there is abundant evidence of this. But what of the “breaking?” it is trite law that “breaking” may be an actual breaking of the house, or may amount to breaking of a more technical or constructive nature, as for instance when doors or windows properly shut but unsecured inside are opened. There are numerous authorities which distinguish between instances where a door or window is shut and latched and one where it has been left ajar. In the former case there is a breaking, while in the latter the element of “breaking” is absent. The distinction appears to be one which has in it a notional element. The authorities appear to regard an aperture needlessly left open, as it were an implicit invitation to enter or at the least as a situation not proclaiming a state of inviolability of the premises concerned. The leaving ajar of a door consequently has not the express implication security that a closely door denotes. As was said by the court in Rex v. Springgs and Hancock. 174 E. R. 122:- “If a man chooses to leave an opening in the wall or proof of his house instead of a fastened window, he must take the consequences. The entry through such an opening is not a breaking.” The court distinguished, in Rev. v. William Brice 168 E.R. 892, entry through a chimney on the grounds that such aperture is left open permanently on necessity. And in Rex v. James Lewis & Another 172 E.R. 285 the court held that entry through an aperture in a collar window to admit light, through which a thief entered at night, is not burglary, Vaughan, E. observing: - “Do you think that if a person leaves a hole in the side of his house big enough for a man to walk in, a person entering at it with intent to steal goods would be guilty of burglary? I think not and I am of opinion that this is not a burglary.” Now applying the principles which seem to be disclosed  in  these cases, it would appear that the partial screening-off only between the two rooms (which of course constitute separate “dwelling- houses) does not express any state of inviolability which must be breached before the offence of burglary can be committed. The opening above the common wall between the two rooms is not left for any purpose – save perhaps by reason of the costs of construction.  

            While it may, it is true, contribute to some extent to the ventilation of the separate premises, there seems to be no real reason, let alone necessity, for the existence of this aperture, and it clearly precludes that apparent semblance of security which I think forms a necessary constituent of a dwelling-house before it can be breached and made the subject of burglarious entry. As a consequent result therefore, no offence of house-breaking is disclosed, for one of the ingredients thereof – a breaking – is clearly absent. Appeal allowed and conviction quashed.