R. v. Vendelin s/o John Costa, Crim. Rev. 16-A-68, 21/2/68, Seaton J.

R. v. Vendelin s/o John Costa, Crim. Rev. 16-A-68, 21/2/68, Seaton J.

Accused were convicted of shop-breaking and stealing [P.C. s. 296(1)]. They broke into a shop where they stole Shs. 88/50 and bottles of liquor valued at about Shs. 250/- The liquor was dropped when Accused were discovered by a prosecution witness. It is not clear how many bottles were salvaged, or what the value was of those that were broken. An order for compensation was made as follows; “Accused to refund to P.W.1 Shs. 88/50 and price of the other drinks distress in default.”

            Held: (1) Section 6(1) of the Minimum Sentences Act, applicable here, requires an order for compensation where the accused has obtained property as a result of a scheduled offence. The word “obtained”, however, means more than that the accused has “had possession” of goods; it means that he must have made some gain on the transaction, since the purpose of the provision is to “ensure that the offender does not receive any benefit from the offence but is made some gain on the transaction, since the purpose of the provision is to “ensure that the offender does not receive any benefit from the offence but is made to disgorge ……” all gains. Here, accused made no such gain. [Citing Sajile Salemulu v. r. (1964) E. A. 341]. (2) Compensation may also be ordered under section 176 of the Criminal Procedure Code, upon the showing that some person has suffered some material loss or personal injury because of the offence. The Code specifies that the liability be determined as in a civil case. Such order is not justified here, as it would not be in a civil case, “without more precise proof of damages.” (3) Under the compensation provision of the Minimum Sentences Act, compensation is recoverable as a civil debt and “an order for distress in default of payment … is bad in law.” [Citing Mwakapesile v. R., (1965) E.A. 407]. Compensation reduced to Shs. 88/50.