App 456 d 67 11867 hamlyn j accused opened a school

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Crim. App. 456-D-67, 11/8/67, Hamlyn, J Accused opened a school, promising that a normal and adequate course of in- struction would be provided. He collected fees for his services. Because of his lack of knowledge and inefficiency, he was utterly in capable of fulfilling the prom-
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ises which he had made. He was convicted of obtaining money by false pre- tences. Held : (1) Section 301 of the Penal Code provides that the representation must concern a matter of fact either past or present. In the present case, the re- presentation concerned services which were to be performed in the future, and such evidence did not support the conviction. (2) In addition, it is doubtful that the evidence showed any real intent to defraud. Conviction quashed. (1967) H.C.D. - 90 – 317. Samson s/o Karuwana v. R., (PC) Crim. App. 514-M-67, 7/8/67, Cross J. Accused was convicted of stealing iron sheets which were the property of the South Mara District Council, He was sentenced to two years’ imprisonment and 24 strokes under the Minimum Sentences Act. Held : (1) The Minimum Sentences Act applies to convictions of theft under section 265 of the Penal Code if the offender knew or ought to have known that the thing stolen was government property. However, there was no evidence that accused knew or ought to have known that the iron sheets belonged to the Dis- trict Council and the Minimum Sentences Act was, therefore, inapplicable. (2) As accused had already served his term of imprisonment, no order varying sentence was made. 318. Paulo Kajuna v. R., Crim. App. 314-M-67, 28/7/67, Cross J. Accused was convicted of criminal trespass, despite the defence that he thought the land belonged to him. The land upon which accused trespassed had been the subject of previous litigation, in which accused had claimed ownership of the land, and lost. Held: In view of the earlier adjudication of ownership, if cannot be argued by accused that he in good faith believed the land to be his. Conviction affirmed.
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319. Wambura s/o Chacha v. R., Crim. App. 424-M-67; 9/8/67, Cross J. In the course of a trial for cattle theft, one of the witnesses was committed to prison for not answering a question “properly” or “directly”. The trial court pur- ported to act under section 153 of the Criminal Procedure Code which, inter alia, empowers a magistrate to commit a witness to prison if he refuses to answer any question; rather, the magistrate found the answer unsatisfactory. Moreover, the magistrate apparently did not give the witness an opportunity to explain why he answered as he did. “The magistrate should be very careful when invoking the provisions of section 153….. that the procedure therein outlined is strictly fol- lowed’. Section 153 was deemed inapplicable. 320. In re Dara F. Keeka and Mohamedali Nasser Damji , Misc. Civ. Case 12-D- 67, -/8/67, Hamlyn, J.
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