Rashid s/o Mfaume v. R., Crim. App. 741-D-68, 12/3/69, Biron J.

 Rashid s/o Mfaume v. R., Crim. App. 741-D-68, 12/3/69, Biron J.

                        The appellant was convicted of robbery with violence c/s 286, Penal Code. He, along with four other persons, raided the premises of a cooperative society and stole Shs. 75,416/-. He was committed for sentence to the High Court where he was sentenced to 7 years and 24 strokes under the Minimum Sentences Act.  The High Court here deals with the question of compensation, mandatory under the Minimum Sentence Act.

Held: “With regard to the question of compensation …. There is a difference of judicial opinion as to whether one of several participants in an offence of this nature can be held liable for the total sum stolen or only for such part as is actually obtained by him. The resolution of this question depends on the construction to be put on section 6 of the Minimum Sentences Act. ……. The section was fully considered and ruled on by a full bench whereon I also sat, in the case of Sajile Salemulu and Another v. Republic, (1964) E.A. 341 ….. In considering the section I stated inter alia in my judgment (at page 349):- “Giving the wording of the section its plain and ordinary meaning, which is the cardinal cannon of construction, the section, to my mind, means that a court must make an order for compensation where it is of the opinion that a convicted offender has actually obtained some property as a result of the commission of the offence, and the amount of compensation in so far as the individual offender is concerned, is limited to the value of the property actually obtained by that offender.” Spry J. (as he then was ) concurred in such construction, whilst Roide J. in his judgment stated (at page 351):- “As I understand it, the question which this court has to deal with in this case in considering compensation, is the interpretation of the word ‘obtained’ in the phrase ‘obtained any property’ …….. I will not myself attempt any exhaustive or general definition of the phrase ‘obtained any property’, but will say at once that in this particular case I would support the interpretation which learned State attorney has canvassed, that is, that all the participants in the theft itself must be regarded for the purposes of the section as having jointly obtained the property stolen.” In this instant case the eye-witnesses were vague as o the number of men involved in the robbery. According to the appellant himself ….. there were four other men involved. He however, is the only one of the five whose conviction has been upheld. According to Roide J., he should be held liable in compensation for the whole amount stolen that is, Shs. 75,000 /- odd, but according to the majority decision in the case cited, his liability should be limited to what he actually obtained. It is not irrelevant to not that this majority decision was followed by Seaton J. in Leshalon s/o Noosha v. R., Arusha Criminal Appeal No. 10-A-67, [1968 High Court Digest no. 62] …… In dealing with the apportionment of compensation to be paid by several participants in a crime, I said in my judgment in the case cited: - “To make such an order the court need not be satisfied beyond reasonable doubt as to the property actually obtained by an individual offender, or its value. It is sufficient if it is so of opinion. Adopting such standard which is o much lower than the usual standard in criminal matters, where there is a number of offenders who have each obtained property, a court, to my mind, would be entitled to assume, in the absence of any evidence to the contrary, that they each obtained an equal share, whether on the principle of honour amongst thieves or equality is equity.” Applying this principle enunciated to this instant case, although the appellant may well have been the ringleader, as it was his car which was used in the raid on the society’s offices and the subsequent removal of the safe therein, at very lowest he, to my mind, cannot be regarded as other than an equal participant in the offence. Therefore the court can assume that he obtained at lowest a fifth of the money stolen from the society, that is, in round figures, Shs. 15,00/-.” Appropriate order for compensation made.

Principles of punishment – Wrong to fix minimum sentence in advance for offence – Mitigating factors must be taken into account.

See case no. 154.