ZAHOR EL-KINDY

R. v. Mayunda (1970) HCD 245

Crim. Rev. 4-D-70; 2/5/70; El-Kindy Ag. J.

The accused was charged for stealing by public servant in that as a head teacher responsible for collecting school fees on behalf of Newala District Council he collected a sum of Shs. 1,221/- which he did not remit to the Council. The District Magistrate convicted him of simple theft on the basis that at the time when accused received the money, it was still the property of those who handed it to him and not the property of the Council. He relied on Joseph Suleman v. R. [1968] H.C.D. 484. On revision by the High Court.

            Held: 

(1) “It seems to me to be obvious that the learned magistrate had misconstrued the decision of this Court in the case of Joseph Suleman v. R. H.CD. 484. Clearly, that was a decision on its own facts. I accept, and that is easily discernible, that Suleman’s case is distinguishable from the present case where the accused had the authority to collect school fees on behalf of the Council, while in that case he was found to have none. 

(2) “Again, it appears that the leaned magistrate failed to consider the second limb of section 270 of the Penal Code. Had he done so, he would not have come to that conclusion when he accepted that he collected the school fees from parents in the course of his employment. The material section reads: - “270. If the offender is a person employed in he public service and the thing stolen is the property of the Republic, or comes into the possession of the offender by virtue of his employment, he is liable to imprisonment for seven years.” In other words, a public servant would be found guilty under this charge if the money he stole was (a) the property of the Republic, or (b) money which came into his possession by virtue of his employment, irrespective of whose property it was. I am satisfied, therefore, for these two reasons the decision of the lower court should be revised as it was erroneous. It is accordingly done and the conviction for simple theft is set aside and therefore a conviction for theft by public servant, contrary to sections 270 and 265 of the Penal Code, is entered.” 

(3) “As I have said, he was sentenced to a term of twelve months. He is a married man with nine children, some of whom are in various schools. He has aged dependents. Additionally, I find that he has been teaching since 1947, he is 45 years old. He says he was born in 1925, and I accept it. He admitted having spent the money for his own private affairs, alleging sickness in the family and that for prestige reasons he could not borrow money from his staff or friends, and that although he had offered to refund the money to the Council, he was not granted this opportunity. He appears to be earning a good salary – Shs. 640/- per month. He claims that his record had been clean until this matter came up. He also pleads that the sentence should in fact be reduced to alleviate the suffering of his family and dependents. I find as a fact that the accused is 45 years old and that corporal punishment would apply.” 

(4) Sentence enhanced to two years in prison and twenty four strokes.