419 christian simon briyo v r crim app 693694695 d 67

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419. Christian Simon Briyo v. R., Crim. App. 693,694,695-D-67, 27/10/67, Saidi J. Accused was convicted on three separate charges of theft by public servant [P.C. ss. 265,270]. As an employee of the Masasi District Council, attached to the Ma-
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sasi Primary Court, he had misappropriated part of a fine paid by an accused, and some money being kept at the court for prisoners who were detained on charges. The District Magistrate substituted convictions under section 271 of the Penal Code; his grounds were that the accused had not been acting as a public servant, since he had received the money for the Judiciary and not for his em- ployer, the District Council. Although two of the transactions involved sums of more than Shs. 100/-, the District Magistrate imposed a Minimum Sentence on only one of the three charges. Held: (1) Accused was a person employed in the public service, and re- ceived all three sums by virtue of that fact. Whether he was working in the District Council or “In any other Government Department, …. he was being paid from public funds as a local government servant,” and the proper charge is therefore theft by public servant,” and the proper charge is therefore theft by public servant [P.C. s. 265, 270]. (2) “It is very clear that all of these three cases could have been tried together in one charge of three counts.” This procedure should be fol- lowed where possible. (3) The minimum sentence of two years and 24 strokes was imposed on the two charges involving more than Shs. 100/-, as required by the statute; all terms of imprisonment were ordered to run concurrently. (4) Be- cause the sentence were imposed on convictions under separate charges, the High Court could not avoid ordering two sentences of 24 strokes of corporal pu- nishment. However, as the sentence was severe, “and the facts clearly show that the appellant would have been awarded twenty-four strokes only had these three cases been brought in one charge of three counts,” the Court directed the dis- patch of the records to the Director of Public Prosecutions for forwarding to the President, for the exercise of his prerogative of merely. ( 1967) H.C.D. -123 – 420. Ismail s/o Bakari v. R., Crim. App. 604-D-67, 4/10/67 Biron J. Accused was convicted of stealing vegetable owned by the Government (part of a prison farm crop) and of criminal trespass[P.C. s. 299(1)]. He had been appre-
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hended on the night of the theft, with the vegetables in his possession, by two people who had found him hiding in the ceiling of their house. Accused ’s story was that he had been drinking and believed that he had seen a lion, from which he had been trying to escape. Held: Although the accused ’s story was properly rejected, his conduct disclosed no offence of trespass. Criminal trespass includes an entry upon prop- erty in possession of another “with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property …..” No such intention was proved here.
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