REPUBLIC v CHARLES KIEGEZO 1984 TLR 106 (HC)

REPUBLIC v CHARLES KIEGEZO 1984 TLR 106 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

August 20, 1986

CRIMINAL APPEAL 32 OF 1984

Flynote

Criminal Law - Theft - Discrepancy in accounts - Whether amounts to theft. B

Statutory Interpretation - Person employed in the public service -Person employed by

a subsidiary of a parastatal organization - Whether falls within definition of "person

employed in the public service", - Penal Code section 5. C

-Headnote

The appellant an employee of a subsidiary of a parastatal organization, was convicted

of theft by a person employed in the public service. The evidence was entirely

circumstantial in that he had failed to account for some discrepancy in his accounts.

D

Held: (i) Mere discrepancy in the accounts per se does not constitute conclusive proof

of theft;

(ii) where a person is charged with theft by a person employed in the public

service, specific evidence must be led to show that he is employed in the public

service instead of merely mentioning E the institution in which he is employed.

Case Information

Appeal dismissed F

No case referred to.

[zJDz]Judgment

Sisya, J.: This appeal is by the Director of Public Prosecutions against the acquittal by

the learned District Magistrate, Muheza, of the respondent, Charles Kiegezo, after his

trial on a charge of theft G by a person employed in the public service. He,

respondent, was alleged to have stolen cash shs.55,044/= property of his employer, the

Ngomeni Kamba Factory.

It is common ground that the respondent was employed at Ngomeni Kamba Factory

from 1/7/78 to 22/9/80 when he was dismissed from service. Although it is conceded,

as indeed it must, that H therefore he was a servant of the said Ngomeni Kamba

Factory the evidence, however, is dead silent as to why he was labelled in charge

sheet as a public servant. The term a person employed in the public service is defined

by the law, see Section 5 of the Penal Code. By reason thereof I am positive I that an

employee of, say, Amboni

1984 TLR p107

SISYA J

A Plastics Factory does not qualify for that term. The point I am driving at is that

evidence ought to have been adduced in this case by a competent witness to establish

that the respondent was, throughout the relevant period, a person employed in the

public service. For purposes of the instant B matter this is mere academic exercise

but the learned Public Prosecutor who conducted this case should, however, take

note for his future guidance.

Getting back to the facts of the case, it is likewise common ground that the

respondent started as an assistant Accountant and from 24/11/78 to the date of his

dismissal he became cashier. His duties as C cashier included receipt of all revenue

or payments made to the factory and to effect payments for and on behalf of the

factory. Every payment to the factory was to be acknowledged by issuance of an

official receipt and every payment by the factory was to be effected on or evidenced

by a D payment voucher duly authorised. It is alleged in the charge that the

respondent stole the money between 24th day of November, 1978, and 27th day of

January, 1979. The little that can be gathered from the evidence, however, tends to

suggest that there were separate and distinct takings and on different dates from those

shown in the charge sheet. In law, each distinct and separate taking or E fraudulent

conversion constitutes an offence and each offence must be charged separately, which

also means in separate counts albeit in the same charge sheet. In this instance by

conglomerating all the supposed distinct takings in a single count the person who

framed the charge erred. I do not F propose to say anything more on this point.

With these undisputed facts in the background one would have expected the person

who checked the respondent's accounts and discovered the so-called loss to have had

an easy task to perform in G so doing as well as in explaining the same to those

concerned, including the Courts of law. The man who checked the respondent's

accounts and discovered the alleged loss was one Yohana Mshami (PW2), who

described himself as the Chief Accountant at Ngomeni Kamba Factory. Contrary to

one's expectation Mshami's evidence in this case is not only confusing but it is, itself,

H also confused. It is, by far, too much below the standard required of a man of his

status. As Chief Accountant, and, more importantly, as the person, as aforesaid, who

checked the accounts and discovered the alleged theft, he is a principal witness in the

case. I will produce samples from his I text in order to demonstrate the type of his

evidence. Fairly early in his evidence-in-chief Mshami is recorded to have said, and I

quote from the record of proceedings:

1984 TLR p108

SISYA J

"On 24/11/78 he (i.e. respondent) was charged to become a cashier..... The

accused continued with this work A to 27/1/79 ..... When the accused handed the

cashier duties to the new cashier it was detected that there was shortage of cash,

shs.45,941/25. Again we detected another loss in his cash book which all amounted

to shs.55,044/20. Cash short was shs.45,941/25 as follows: B

On the handover on 24/11/78 the former cashier had a cash short of

sh.19,279/75 which the accused inherited. This sum ought to be deducted from the

actual loss attributed to the accused. Thus the C figure drops to shs.26,661/50 which

was actual loss by the accused.

It is not known what Mshami did with the figure of shs.55,044/20 which he, earlier

on, had said was the total amount of the sum lost. In his attempt to explain how the

amount in the charge was arrived D at Mshami went on to say, and, again, I quote

from the record of proceedings:

In December, 1978, the accused paid total cash shs.144,236/20 which had no

supporting documents. At the E same time he entered revenue which had no

supporting document which amounted to shs.114,406/70 the difference was

shs.29,829/40. In January, 1981 the accused paid a total amount of shs.120,185/= and

he F entered revenue of shs.95,829/55, difference was shs.34,355/45. There was also

difference of shs.13,000/= in six days he worked from 24/11/78 - 30/11/78. In this

period he paid total amount of shs.25,603/85, the revenue was shs.12,574/05, the

difference was shs.13,029/80. G

It seems Mshami took the difference between the monthly income and the monthly

expenditure as the amount 'stolen' by the respondent in that month. I must admit

that I have failed to comprehend the rationale behind this. Anyhow, the total

amount (i.e. shs.29,829/10 & shs.34,355/45 & H shs.13,029/30) is shs.77,214/65. He,

i.e. Mshami, went on to say:

On checking, we detected that there were other payments effected without

being recorded in the accused's I cash book. The amount paid by this way amounted

to shs.21,208/95. Thus

1984 TLR p109

SISYA J

A the whole difference outlined above minus this sum, the total cash paid

unsupported is shs.56,006/60.

This is actually shs.77,214/65 minus shs.21,208/05. Mshami then added:-

B I cannot tell how the accused managed to count money (for) which he had

issued no receipt.

C Likewise, it also beats my comprehension how Mshami verified his figures

without any documents. One is, thus, left in doubt as to whether the figures said to

be of expenditure and even those said to be of revenue are correct and proper. Of

equal significance is the fact that at no time or stage in his evidence did Mshami, or

any other witness for that matter, swear that he physically D checked the cash and

confirmed or verified the alleged deficit. This creates a lacuna in the Prosecution case

which is very fundamental in that it goes deep to the root of the Prosecution case.

This flaw also explains why Mshami was very erratic in his figure of the alleged stolen

sum. At one E stage in his evidence-in-chief Mshami fixed the figure at

shs.103,862/60, "which the Accused stole." He went on to tell the Court that later,

however, it was found that some of the payments made by the respondent were

'genuine'. By using his somewhat dubious calculations and F deductions Mshami

then eventually settles on shs.55,044/=. This includes three alleged payments of

shs.10,994/50, shs.3000/= and shs.7,200/= as per Exhs. PI, P2 and P6 made to him. I,

however, hasten to point out that there is not even a grain of evidence to show that

the said payments were, in fact, made to him, i.e. respondent.

G In short all that can be said about this matter is that it was a wangle right from the

word go. It is clear from the evidence of Mshami that the accounts of the Factory

were already in a mess when the respondent was told to take over but, on the

evidence and material available, the worst that can be said about the respondent is

that he made the said accounts even more hay wire. Criminally, I find H no

sufficient evidence on which to found and sustain a conviction.

In the final result this appeal fails and it is hereby dismissed.

Appeal dismissed.

1984 TLR p110

A