Held appeal rejected even if an employee has not been

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Held: Appeal rejected. Even “if an employee has not been paid his salary he has no right to use money which he has received for his employer without au- thorization.” 374. Issa s/o Ntoka v. R., Crim. App. 217-D-68, Georges C. J. Accused having sold eight kilos of cashew nuts valued at Shs. 5/75, to the weigh- ing clerk (P.W.1) of the Nanyanga Co-operative, altered the chit issued to him to read 988 kilos, valued Shs. 650/75, and presented for payment to P.W. 2, who paid that sum. Accused admitted that he was paid in excess, but stated that he was illiterate. Held : Illiterate though he might be, it is clear that accused could not have thought that eight kilos of cashew nuts were worth Shs. 650/-, and that he should
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have enquired. (2) Conviction on the count of stealing quashed, but a conviction for obtaining by false pretences substituted. “(T)he most intelligible distinction be- tween larceny by trick and obtaining by false pretences is that in the former the person parting with the property intends to part with possession only, not with the property, while in the latter, he intends to part with both.” The victim here clearly intended to part with both possession and property of the money he handed to accused. 375. Magati s/o Mchoya v. R., Crim. App. 340-M-68, 31/7/68, Seaton J. Accused was convicted of robbery with violence. The village headman and oth- ers discovered his wife illegally brewing moshi. When they arrested her, the ac- cused seized a bicycle and briefcase belonging to the headman and pulled out a knife, saying that if the headman could take away, accused took the articles into his house. The headman later recovered them. Held : Conviction quashed. “As to he detaining of the bicycle and the brief- case, the appellant’s motives were to exert pressure to have his wife freed by de- taining them temporarily.” He did not intend to deprive the headman permanently of them, so there could be neither theft nor robbery. 376. Meliki s/o Mayala v. R., (PC) Crim. App. 246-M-68, 19/7/68, Seaton J. Accused, by a written contract, agreed to build a home for the complainant, who was to supply the building materials. The complainant became unsatisfied with the progress made and terminated the accused ’s contract. Complainant demand return of four bags of cement, which accused has sold to a third party before the complainant ended the contract. (1968)H.C.D. - 144 – Held: The essential element of section 273, and all other cases of theft in the Penal Code, is fraudulent taking or conversion. Here, there was no evidence that the contract required the accused to use the very bags supplied to him for
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building the house. The act of the complainant in terminating the contract de- prived the accused of the opportunity of replacing the bags; his fraudulent intent was not proved. Conviction quashed.
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  • Fall '17
  • Dean Majamba

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