OFFENCES AGAINST PROPERTY

  1. INTRODUCTION:

The law relating to offences against property is provided under Division V of the Penal Code Cap.16 of the laws. The classification of the offences under this division is mainly centered on the problems of the means of acquisition, the necessary state of mind of an accused person and the nature of the property.

                        Theft

54 R.V. PC Jones Wambura (1978) LRT 52

The offence of theft is covered under sections 257 –275 of the Penal Code. It is important to bear in mind that in any alleged offence, the facts surrounding it must be disclose all the necessary elements of the alleged offence. In theft, therefore, the prosecution is duty bound to ensure that all statutory ingredients constituting the offence of theft are present, if the charge of theft is to sustain. These ingredients can be deduced from the statutory definition of theft.

Section 28(1) of the Penal Code defines the offence of theft and in the process furnishes all important ingredients that make the offence of theft.

That section provides:

A person who fraudulently and without claim of right takes any thing capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof any thing capable of being stolen, is said to steal that thing.

Section 254(1) has two specific definition of the offence of theft. In the first place the definition takes the following form:-

  • A person who fraudulently and
    • Without claim of rights
    • Takes
    • Anything capable of being stolen

The second form extracted from section 258(1) of the Penal Code provides thus:

  • A person who fraudulently and
  • Without claim of right
  • Converts to the use of any person other than the general or special owner thereof
  • Anything capable of being stolen,

Is said to steal the thing.

Those ingredients covered above constituting theft can be examined as follows

                        Things capable of being stolen

Unless the alleged stolen article is one which the criminal law regards as being capable of being stolen, the offence of theft can not be said to have been committed. Section 257 paragraph one describes things capable of being stolen. Paragraph one to that sections, therefore, provides:

Every in animate thing whatever which is the property of any person and which is movable is capable of being stolen.

To constitute an item capable of being stolen, the elements extracted from the above definition must be full covered, that is the item in question:-

  • Must be in animate – e.g. table, fan, chairs etc
    • Must be a property of somebody
    • Must be movable

                        Ownership

The question “must be a property of somebody”, establishes in law what is ownership. A thing which has no owner can not in law be the subject of theft, and as such it lacks the quality of being capable of being stolen. It is therefore, important to establish that the thing stolen belonged to a person. For example, if „A‟ picks up a discarded book, he can not be regarded in this circumstance to have stolen it , for the book, the subject matter of theft, has no owner, it belongs to no one ever since it was thrown away. And it is for this reason again that „A‟ can not be said to be taking “something capable of being stolen”.

The word „owner‟ goes beyond the real, which is the legal owner. It covers situations where one has special property in it; e.g. a person entrusted with property by another.

From this observation then we have, “legal owner” or “special owner”. Legal owner entails the general or real owner, and special owner implies interim owner or possessor. As far as theft is concerned, it is quite possible for a legal owner to steal from a special owner, that (is to say, it is possible for one to steal his own property so long as the elements constituting the offence of theft are established. For example: „K‟ lends „Y‟ his bicycle to „Y‟, who parks it

out side post officer building for posting expedition. „K‟ later on quietly comes up and takes the bicycle and hides it. „K‟ as a result asks „Y‟ to pay for the lost bicycle. In this case „K‟ as a legal owner will be liable for theft.

In English case of Rose V.Matt1 it was held that an owner of goods who entrusts them to another person in such circumstances that the latter has a special property in them, is guilty of larceny (theft) if he fraudulently takes them away again.

The principle as laid down by this English case is also applicable in Tanzania, under section 258(1) of the Penal Code defining the offence of theft.

                        Movable

The quality of immovability imbedded in the „things capable of being stolen.‟ Literally it means “displacement inherent naturally”. That a thing may have. The general rule drawn from the definition of theft is to the effect that immovable things like land, water and houses can not be stolen. This is to say they are fixed items and naturally they can not be displaced unless by extra physical force employment. However, there are exceptions to this general rule that immovable things like land, houses etc can not be stollen.

The second paragraph to s.257 of the Penal Code envisages the exceptions to the general rule in a situation where fixtures of an item which otherwise can not be moved, are made movable for purposes of stealing. This paragraph reads:

Every in animate thing which is the property of any person and which is capable of being made movable is capable of being stolen as soon as it becomes movable.

The main components of the above definition are as follows:-

  • Every in animate thing e.g. water, house, land electricity etc
    • The property of an person – (ownership)
      • Capable of being made movable
      • Becomes capable of being stolen as soon as it becomes movable

1 Rose V.Matt (1951) 1 K.B.810

Situations covered in this instance, is when a person removes a door, window or roofs from a house in order to steal it. Such items are fixed to the house and therefore are immovable. A thief makes them movable for the sole purpose of stealing them, for example by physical removing a door and carrying it away for the purposes of stealing it.

It should be noted that the second paragraph to section 257 of the Penal Code also covers situations where other intangible things such as water air, electricity etc are made movable for the purpose of a stealing. The general rule to this effect is that intangible things are not capable of being stolen but again this rule is subject to exceptions provided for under this paragraph (2nd para. S.257 PC). It is possible under this circumstance to make water (intangible thing) movable for the purpose of stealing it. This was illustrated in one important case of R.V. Ndesario2 …..Where the accused person ( Ndesario) was charged with theft c/s 265 of the Penal code and Malicious Damage to property c/s 362 (1) of the Penal Code. Ndesario was alleged to have stolen (water) from a furrow on the first count and to have willfully damaged the furrow on the second count.

The facts of all the case were; the accused had an agreement with the complainant there under, he (the accused) was allowed to draw water from a furrow which crossed the complainant‟s land. According to this agreement the accused person was only allowed to extract water between hours 6 a.m and 9 a.m. The accused was arraigned of having stolen water and breaking the furrow at night. Justice Platt, as he then was, held that so long as a fluid such as water could be sufficiently appropriate to the user it could be stolen and the accused had no right to extract water at any other than stipulated time. Justice Platt held that the accused person was therefore taking a movable object not belonging to him.

Like water electricity is also intangible and it can be stolen. In the case of electricity the same principle of appropriation apply. Electricity is not a tangible thing for the purposes of stealing. But the Penal Code clearly provides for a possibility of stealing electricity in section 283 of the Penal Code which provides:-

any person who fraudulently abstracts or diverts to his own use or to the use of any other person any mechanical, illuminating or electrical power derived from any machine, apparatus or substance, the property of another person, is guilty of an offence.

Paragraphs third, fourth, fifth and sixth to section 257 of the Penal Code covers cases of domesticated animals like cattle, sheep, goats, dogs and tamed wild animals (like lions in cages), being moved away for the purposes of being stolen.

Third paragraph, for example provides that:

Every tame animal, whether tame by nature or wild by nature and tamed, which is the property of any person, is capable of being stolen.

The seventh paragraph is to the effect that:-

Wild animals in the enjoyment of their natural liberty are not capable of being stolen, but their dead bodies are capable of being stolen.

The phrase, “but their dead bodies are capable of being stolen” implies that the carcasses of any such creature can only be stealable if reduced into possession by another and so long as possession has not been subsequently been lost or abandoned, or if another person is in the course of reducing it into possession.

The last paragraph to section 257 of the code provides that:-

“ Every thing produced by or forming part of the body of an animal capable of being stolen is capable of being stolen.”

14.2.1.3.          Must the thing stolen have any value?

The question of the value for the purpose of theft is not much counting to establish the offence of theft. What counts in this respect is whether there was „fraudulent taking‟. If the taking of a thing though to be valueless is motivated by „fraudulence‟ then such an act will

2 R.V. Ndesario (1969) E.A.267

amount to stealing, meaning that the taker of the alleged valueless thing will still be liable for theft.

In R.V. Kambengwa,3 the accused person was charged with theft by public servant c/s 265, 270 of the Penal Code. A bonnet stand was missing from the car and the accused person (kambengwa) was seen some days later using it as a walking stick. In mitigation he said that he thought that the bonnet stand had no value and decided to use it as a walking stick. On appeal it was held that it is irrelevant that the property taken may be of no value or that the owner may intend no further use of it.

What is important in so far as the value of the thing is concerned is the intention to deprive the owner of the thing. If one proves that the taking of the so called valueless thing was taken with fraudulent intention then in this circumstance the value is not important.

The question of fraudulent taking in the case of Kambengwa was considered to be more important than whether the thing stolen has an value.

                        Fraudulent taking /conversion of the thing

Section 258 (1) of the Penal Code effects that taking or conversion of something capable of being stolen must be done fraudulently. For this reason subsection(2) of section 258 of the Penal Code identifies various, circumstances in which the „taking‟ or „ conversion‟ if established will be deemed to have been done fraudulently. Fraudulence, therefore, is regarded to be present if the taker takes or converts with any of the following intents:

  • An intent permanently to deprive the general or special owner of the thing of it, for example if, a person picks up a watercan from another‟s garden intending to use it for a while but all the same sells it, an intention to permanently deprive the owner of the watercan is obvious. Once the watercan is sold, the owner of it will be deprived of it permanently.

3 R.V. Kambengwa (1968) HCD 333

  • An intent to use the thing as a pledge or security; An example in this instance, is when „X‟ borrows a 277 radio brand from „Y‟ intending to use it for two days, then after takes it to „Z‟ as a security to secure loan from

Z. if X fails to repay the loan, Z will be entitled to sell the radio and recover the loan, thus depriving Y of his radio.

  • An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform.

This is when the person taking or converting the thing attaches conditions as to its return which the owner becomes unable to fulfill. This is to say the accused person may have failed to redeem the property pawned say for Tshs:10,000/= and now seeks to extend liability to the owner in which case the owner likewise is unable to fulfill.

This paragraph is of the effect that if the accused person parts with the property, by pledging, pawning or otherwise under a condition as to its return which he knows he can perform then he would not be guilty of theft.

  • An intent to deal with it in such a manner that it can not be returned in the condition in which it was at the time of the taking or conversion.

Suppose one borrows a car from another person, but his intention is to remove some of the spare parts from the car and replace them with old ones. In this scenario theft will be committed, as the return of the car to the owner would not be in the same condition in which it was before the taking or conversion.

  • In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

This provision is specifically meant to cover taking or converting of money. The provision emphasizes that the taking or converting, in the case of money however temporarily is fraudulent.

For example, a cashier working for a cooperative society takes some cash from the cash box knowing fully that he is going to refund the amount back in to the cash box the following hour.

The above example amounts to theft according to section 258(2)(e) of the Penal Code. Subsection 258 (2)(a) – (d) above do not cover money. But subsection (e) cover money which has been entrusted on to another person, as in our example to a cashier of a cooperative society.

In the case of Yusufu Salim Mkaly V.R.4 the accused was charged with stealing by servant c/s 265 and 270 of the Penal Code. It was alleged that, being a person employed by TANU as a Regional Executive Secretary, he stole Tsh:695 which came into his possession by virtue of his employment. Yusuf Mkaly had been given the money to pay for repair to a Land Rover at Peramiho Mission. Peramiho Catholic Father in charge of the garage had reused to take the money before proper estimate had been prepared for the probable cost repairs.

On his return to Songea Yusufu Mkaly received a message from TANU Head Quarter‟s authorizing him to travel to Morogoro to see his sick relative. As there was no superior officer at Songea he decided to use part of the vehicle‟s repair money to pay his fare home and while home he used more money. He later reported to TANU Head Quarters and informed the head accounts section. Mr. Mkaly was told by the accounts that deductions would be made from his salary. The deductions were actually made. Later on Mkaly was arrested, charged and convicted of stealing money which came into his possession as a servant. He appealed.

On appeal, CJ Georges, as he then was referred to a number of cases; like R.Vs Cockburn5 and R.V. William6 and held that theft must inevitably carry with it a connotation of fraud. The chief justice thought that it was incredible to suppose that if one is handed a Tshs:20/= note to take it somewhere and on the way uses it but all the same on arrival hands over a

4 Yusufu Salim Mkaly V.R. (1969) HCD 264

5 R.Vs Cockburn (1968) 1 All E.R.466

different Tshs:20/= note he should be held to have stolen the money unless, argued the Chief Justice, it is shown that a particular Tshs:20/= note had some intrinsic value.

The chief justice decided that there was no „fraudulence‟ on the part of Yusufu Mkaly when he used the money originally meant for Land Rover repairs. The decision of the chief justice appears to be reading the word „fraudulence‟ into strict wording of section 258(2) (e) thereby showing some leniency in construing the strict provision pertaining to taking / converting money held on trust.

                        Takes or Converts

Takes or converts is another ingredient as far as the offence of theft is concerned. Takes or converts is an important ingredient of the offence of theft. This constitutes ACTUS REUS of theft. To establish that theft has taken place, one must show that there was either the taking of something capable of being stolen or there was a conversion of something capable of being stolen.

There are two categories of conversion in criminal law;

  • Fraudulent conversion
  • Conversion not amounting to theft

                        Fraudulent conversion

In fraudulent conversion the taking of anything is at first lawful. But it is only later when an intention develops to deprive the owner permanently of the thing when it (conversion) becomes unlawful.

For example, if a person takes another person‟s property on borrowing terms, to inform him, that is the owner that his property has been stolen, while actually it was sold by him ( the converter ) amounts to permanently depriving the owner of the property.

  • the act of borrowing in this instance was lawful

6 R.V.William (1953) W L R 937

  • when he sold it, that action aimed at permanently deprivation

         Conversion not amounting to theft

This offence is governed under section 284 of the Penal Code. The offence is restricted to draught or riding animals, vehicles and vessels of various propellants.

This section provides:

Any person who unlawfully and without colour of right, but not so as to be guilty of theft takes or converts to his use or to the use of any other person any draught or riding animal or any mechanically propelled cycle of any description or any vessel shall be guilty of an offence….

The late Justice Onyiuke, in the case of Melick V.R7 had the following observations on conversion not amounting to theft.

“If a person who initially was in lawful possession of his employer‟s vehicle, subsequently does an act in relation to it which is inconsistent with the owner‟s right, although without intent to deprive the owner permanently of the vehicle.”

Conversion not amounting to theft, therefore lacks the desire to deprive the owner permanently, that is it lacks fraudulence. The important thing to note is that, one goes contrary to his employer‟s or owner‟s instructions in relation to the property envisaged in section 284 of the Penal Code. For example, X who is required to bring a car to a nearby garage for repairs and instead is found with the car some where else for his personal purposes, is said to have converted the same, but not in a manner as to constitute theft. For in the above example there is no intention whatsoever, on the part of X to permanently deprive the owner of the car but used the car without color of right for his personal purposes.

This position was illustrated in the case of Leonix Odutu V.R.8 In this case the appellant who had borrowed a bicycle for a day disappeared with it for four months was convicted of

7 Melick V.R. (1973) LRT no.12

8 Leonix Odutu V.R. (1970) HCD 32

theft. On appeal it was held that the bicycle was loaned hence the original taking was lawful and there was no subsequent overt act showing an intention permanently to deprive the owner thereof. However, since the bicycle was retained for four months when it was only lent for a day, the appellant unlawfully converted the bicycle for his own use. Hence the conviction for stealing under section 265 of the Penal Code was quashed and a conviction for minor offence of conversion not amounting to theft under section 284 of the Penal Code was substituted.

         Taking

Is the ‟actus reus‟ of theft and is technically known in criminal law as ASPORTATION. Taking or asportation may be actual or constructive. Actual taking or asportation involves physical taking of anything capable of being stolen. One‟s muscular movement is or in relation to the thing stolen must be physically seen. Whereas constructive taking or asportation may be made through an agent who may even be innocent, e.g. where „X‟ tells his infant child to go and steal an orange from a tree. Here although „X‟ did not do the act physically, nevertheless such taking or asportation of an orange done by an infant child is deemed to do so as by himself. The taking implies a bit of asportation i.e. must involve a movement of the thing stolen from its usual place.

Asportation in this sense, therefore, refers to the fact that the slightest removal of a thing will suffice and the crime is complete even though the thief abandon the thing at once, or subsequently changes his mind and return it. There may be a sufficient asportation even though part of the thing still occupies the place which some other part of it previously did.

e.g. by half drawing a sword from its scabbard, pushing a bag part way out of the boot of a coach or pulling a pocket book not quite out of a man‟s pocket.

So in the same way there may be sufficient asportation if a thief were to lift an orange from a market stall with intent to steal but later on drops it when the owner looks on his way. This will amount either to stealing or an attempt to steal even though he has not actually carried away that orange. Or where a thief snatched an earring, the ring drops and is stuck in the victim‟s hair. There is taking, an asportation in this example.

Taking or asportation to constitute a crime of theft is emphasized in section 258(1, of the Penal Code where the word „take‟ is deliberately used and in section 258(5) of the Penal Code where it was categorically stated that:-

A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

A „movement‟ or asportation or taking of the thing stolen as an aspect of theft was discussed in the case of Mazengo Magale V.R.9 Mazengo was charged with two counts of cattle theft and criminal trespass. He was found guilty of attempted theft and convicted. Evidence was led to show that at 3 am in one morning, herdsmen were awakened by the sound of cattle being out side their usual bomas. They found out that the boma had been broken open and they spotted Mazengo and apprehended him, as he was about to flee.

The main issue on appeal by Mazengo was whether the act of driving the cattle out of the boma but within the compound of the owner was „taking‟ in the real sense of the word. Biron J as he then was held that in this case there was more than sufficient asportation to constitute a „taking‟ within the definition of theft.

Asportation is always present as long as anything has been removed from its usual place. If taking is not complete one will be charged with an attempt. However in Samwel Msirangala V.R.10, the court was of the view that, since the appellant drove the bull from where it was to another place asportation was proved and therefore, the offence committed was one of cattle theft, that since the appellant drove the bull from where it was to another place asportation was proved and, therefore, the offence committed was one of cattle theft.

However in Samweli Msivangala V.R. Without claim of right

This is another ingredient in the offence of theft. In order for any taking or conversion to amount to theft, the taking or converting must not have been done under genuine claim of right over the stolen article.

9 Mazengo Magale V.R.(1969) HCD 156

10 Samweli Msivangala V.R. (1981) TLR n.l319

Section 258(1) of the Penal Code emphasizes that fraudulent taking or conversion must be made without „any claim of right‟. It is a fundamental principle of administration of criminal justice that a person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him in respect to the property was done in the exercise of an honest claim of right and without intention to defraud. A claim of right may be unfound in law,, but if honestly made and is not manifestly unreasonable, can be a good defence to a charge of stealing.

“Without claimed of right “ as has been refered in section 258(1) of the Penal Code indicates that the defence of bonafide claim of right is a perfect defence which can negate the claim that the taking or conversion of a thing capable of being stolen was done fraudulently.

Therefore the „mens rea‟ of theft (fraudulent taking or conversion) may be negated by a successful defence of bonafide claim of right.

In Mohamed Hassani11, the late justice Biron allowed the appeal holding that the appellant, who was but a youth thought he was acting under a „bonafide claim of right‟ over the clothes as a way of recovering his wages.

And in Salum Ibrahim V.R.12 it was held that a claim of right may be unfounded in law, but if it was honestly held and was not manifestly unreasonable, it can be a good defence to a charge of stealing. Thus, an honest claim of right may exist even where the accused takes by force against the will of the owner.

Other references

  • Mpembee V.R.(1969) HCD 222
  • R.V. Daniel (1968) HCD 332
  • Olipa Selemani V.R. (1970) HCD 167
  • Braison Sachayo V.R.(1970) HCD 365
  • Lerunyan V.R (1968) E.A

11 Suppra,

12 Salum Ibrahim V.R.(1971)HCD 481

  • Juma Athuman V.R(1965) HCD 197

The general punishment of theft is provided for under section 265 of the Penal Code.

                        Other forms of theft

So far the general over view of the defence of theft is covered. However there are other forms of theft, which are created from section 266 – 275 of the Penal Code.

These include:

  • Stealing wills – s.266
    • Stealing from the person; stealing goods in transit s.269(a) & (c), other stealing in connection to this section (b) (d) (f) and (g)
    • Stealing by persons in public service – s.270
    • Stealing by clerks and servants s.271
    • Stealing by directors or officers of companies s.272
    • Stealing by agent – s.273
    • Stealing by tenants or lodgers – s.274
    • Stealing after previous convictions 275

These other forms of theft share common ingredients with the offence of theft, though in case falling under sections 270,271,272,273 and 274 of the Penal Code, the only difference is capacities and status of the offenders involved in respect to each of the premises above. For example where one‟s employment is one of public enterprises, then he should be charged in that capacity as a public servant as distinct from the one employed in a private enterprise. But in both cases the item stolen should come into possession of the offender by virtue of his employment, or an account of his employer, that is, it is the duty of the employee to take care and account for his employer‟s property.

Section 270 of the Penal Code provides:

if the offender employed in the public service and the thing stolen is the property of the public or came into the possession of the offender by virtue of his employment.

The offender is guilty of the offence of stealing by public servant. Important components in this offence are:-

  • that the accused person was employed as a public servant
    • that the thing stolen was the property of his employer or come into his possession by virtue of his employer
    • that he (without claim of right) fraudulently took the thing (capable of being stolen ) or fraudulently converted the thing (capable of being stolen).

In the case of Issa s/o Nkalinga V.R13 a man gave money to an Assistant field officer in the Agricultural Department in order to repay a part of his loan at the Revenue Office. The officer appropriated the money for his own use. It was held that he could only be convicted of theft by Public servant if it was proved that it was party of his duty to collect loan payments, or that the complainant would not have entrusted money to the accused had he not been an Assistant Field Officer. Without prove of these matters, the Field Officer would be in the same position as any private person entrusted with money for some errand. In such a case, the safest way or charge would be simple theft, although a charge of stealing by agent would probably lie.

It is theft for a servant to take his master‟s goods fraudulently. This is so where the master has entrusted his goods to the servant, or where the servant received goods on behalf of his master for a servant is only regarded as having “custody” and not possession of the goods. Section 262 of the Penal Code expressly states that where money is deemed to be the property of the person on whose behalf it is received, unless the money is on the terms that it shall form an item in a debtor and creditor account. Section 271 of the Penal Code provides:-

13 Issa s/o Nkalinga V.R. (1969) HCD 74

If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer.

The offender is guilty of stealing by clerk or servant. The main components under the section are as follows:-

  • That the accused person was employed as a clerk or servant (private enterprise, master – servant relationship)
  • That the thing stolen was the property of his employer – master or came into his possession on account of his employer
  • That he (without claim of right) fraudulently took the thing (capable of being stolen) or he fraudulently converted the thing (capable of being stolen)

                        Stealing from the person of another

This form of theft, takes place within a person‟s body. Normally there are articles which are subject to this kind of theft which form part of a person‟s body. Such articles include, earrings, wristwatches, pocket money, chains, handbags etc. if the offender snatches any one of these items from a person, such offender is deemed to have stolen from the person of another.

Section 269 (a) of the Penal Code creates the offence of stealing from the person of another. That section provides:

If the thing is stolen from the person of another

The offence is therefore one of the offence committed under circumstances envisaged under section 269(a) of the Penal Code.

In Gadi Kidava V.R.14 In this case the appellant was charged and convicted of two offences:- stealing from the person of another c/s 269(a) of the Penal Code and disorderly conduct in a Police station s/o 101 and 102 of the Police Force Ordinance. The accused

was found guilty on both counts by the lower court. He was convicted and sentenced to a fine of 600/= or 6 months imprisonment in the first count and Tshs200/=, fine or two months imprisonment in default in the second count. He appealed against conviction.

Justice Munyera (as he then was) admitting this appeal minute:

  • Conviction in count 1 appears sound
    • In count 2 no evidence to the disorder the appellant created in the Police Station

The evidence that was adduced in support of the first count came from Yusufu Ndeki the complainant, Ayub Lwakatare (Pw2) and Othiambo Angola (Pw3). Briefly the complainant stated on 3/2/ 1982 at about 2:00 PM he was at Geita market trying to get a travelling ticket to Msalala. As he concentrated on getting his ticket his wallet containing Shs.1600/= was snatched from him. Stolen also were a baby shirt and beans. He immediately suspected the accused person. The accused started running away. The complainant and Ayub Lwakatare gave chase and at the same time appealing for assistance. When Othiambo Angola saw the accused running and at the same time the complainant chasing and appealing for help he intercepted the accused. The accused was found with the complainant‟s wallet, which the complainant identified by his CCM card, and job identity card, which were still in it. The money had vanished.

The defence of the accused was that he was merely arrested on suspicion and then his CCM card was put in the wallet of the complainant in order to make it appear that he had stolen the wallet. He however could not explain why he ran the whole way to the Government Hospital and why Ayub Lwakatare and Othiambo Angola should fabricate evidence against him while they were in no way related to him or the complainant. Like the trial magistrate I find the evidence against the accused in the first count was over whelming. The sentence imposed was if anything lenient.

Regarding the second count the evidence relied on by the prosecution was that of PC Manjura (Pw4) who received the accused at the Police Station. According to him the

14 Gadi Kidava V.R.(1982) TLR 105 -106

accused refused to give his name. There was no allegation of a disturbance of any kind such as shouting, fighting etc. section 101(1) of the Police Force Ordinance envisages “ a riotiouns, indecent disorderly or insulting” conduct it is obvious that keeping silent is not ejusdem generis with the above categories of behaviour and therefore conviction in the second count was not supported by the evidence adduced. I accordingly allow the appeal in the second count.

The conviction thereon is quashed and the sentence set aside:

In the result the appeal in the first count is dismissed while the appeal in the second is allowed.

Other references

  • Ambokile Mwamalongo (1967) HCD 275
  • Ramadhani Mugwema V.R. (1969) HCD 159
  • Selaman V.R. (1970) HCD 39

14.5.2 Stealing from the Motor Vehicle

This offence is created under section 269 ( c ) of the Penal Code. It must be established that the thing stolen, was anything stolen from any kind of vessel or vehicle or place of deposit in such vessel or vehicle. That is goods stolen while in transit etc. It does not apply to a thing attached to a vessel or vehicle as part of such vessel or vehicle. Spare tyres attached to the body of the vessel or vehicle right from the manufacture do not form to this form of offence, otherwise the offence is one of simple theft. Nevertheless there are circumstances where spare tyres are so placed in such a way as to be part of the body of the car while actually they are in the place of deposit. If that is the case, then the offence committed is one of stealing from the Motor vehicle.

This position was demonstrated in the case of Hassan Ramadhani V.R15. In this case the accused was convicted of stealing from a motor vehicle c/s 269( c ) of the Penal Code upon evidence that he had taken the gear box of the vehicle it self.

15 Hassani Ramadhani V.R.(1968) HCD 244

It was held that section 269 ( c ) of the Penal Code provides for thefts in which the “thing is stolen from any kind of vessel or vehicle or place of deposit…” This wording refers to things being conveyed by or deposited in vessels or vehicles rather than to parts of the vessels or vehicles themselves. Secondly in interpreting a statute marginal notes may be referred to for assistance. In the present case the relevant portion of the marginal notes reads” stealing goods in transit” suggesting that portions of vehicles themselves were not included. Conviction of simple theft substituted (s.265 PC).

In Said Ally V.R.16 The accused was convicted of stealing from a motor vehicle c/s 269

( c ) of the Penal Code. He entered a truck and sorted through its contents picking out what he desired. Just as he was about to depart the owner arrived and locked him in the truck. It was held that the asportation requirement for a conviction simple theft is fulfilled by any movement of the item involved. Here, however the charge was the graver one of stealing from a motor vehicle. For conviction of this offence it must be show not merely that the items were removed, but that they were removed from the vehicle.

                        Positions with regard to spouses

  1. At Common law: The Property of husband and wife

At common law it used not to amount to criminal liability for spouses to steal each other‟s property. The position was that goods and chattels of a married woman belonged to her husband and were held to be equally in the possession of both. From this developed the rule that an appropriation of goods by her would not constitute a charge of possession, and therefore ( at common law) did not constitute theft nor did even adultery put an end to this.17 So if a wife went away with money of her husband‟s and then met her adulterer and gave him this money, he cold not be convicted of receiving stolen goods; for they had not been „stolen‟. Yet if the adulterer had instead assisted her in the original taking of the goods, he could have been convicted of theft of them, for then he would have taken them out of the actual possession of the husband himself.18

16 Said Ally V.R.(1968)HCD 198

17 Kenny’s outlines of Criminal Law, New Ed Cambridge At the University Press, 1952, p.227

But there has been a change in law (s.36 of the larceny Act 1961), husband and wife are criminally liable for stealing each other‟s property if:-

  • they were not living together at the date of the offence – they may live together though geographically a part
    • the property was appropriated with a view to their ceasing to live together. But when they once again are living together no prosecution takes place.

Thus a wife, so long as she has no intention of ceasing to cohabit with her husband, retains even under the Act 1961 her immunity for committing theft of his property. And even if she were to abscond from him temporarily and to take away with her some of his property, but in the expectation of ultimately returning to him and bringing it back with her, then she would commit no theft. For she would not satisfy the final clause of the definite on the word stealing; since she does not intend to deprive him of the property permanently.19

                        The position in Tanzania law

The law in Tanzania, with regard to spouses stealing each other‟s property is not the same as that obtaining at common law.

Section 264 of the Penal Code categorically states:

For the avoidance of doubt, it is here by declared that a husband may be guilty of stealing from his wife or a wife from her husband.

This means, spouses are criminally liable in respect of the offence of „theft‟ for stealing each other‟s property. Though it may be true that the goods and chattels of a married woman belonged to her husband and are equally in possession of both, but in reality if the other takes or appropriates the other‟s property without the consent of the other, then she or he commits the offence of theft.

18 ibid, p.228

19 ibid,

This position was observed in the case of Kasese Mbugha V. Zainabu Swalehe20 where it was held that; section 264 of the Penal Code provides that:

a husband may be guilty of stealing from his wife or a wife from her husband.

Since the trial court was unanimous that the respondent had taken her husband‟s money and the District Court endorsed that view, the conviction was inevitable.

This position, however, is subject to the limitations of the provisions of the law of marriage Act21 and likewise it may be a defence if, the spouse in so stealing was acting under an honest claim of right.

In the present case, however, the respondent had at no time claimed that she had taken the shs: 30,000/= under an honest claim of right.

15                 ROBBERY

  1. Introduction

This offence has the origin of the offence of theft. This is so in that an act of robbery by an accused person is no less than the act of steeling only with the exception that in the former offence the said act is orchestrated by the use of force or the threat of force as against the victim or property.1

The nature and character of this offence will be observed in the context of both English and Tanzania laws.

                        The position under English law

Robbery is defined as:

20 Kasese Mbugha V. zainabu Swalehe (1991)TLR 90

21 Act No. of 1971, s.64(1) and (2), however this position does not extend to s.64(3) and (4) see s.258 of the Penal Code Cap.16 of the laws establishing the offence of theft.

1 Ibrahim H.J,Criminal law and Procedure Part 2, 1st Ed, The Open University of Tanzania,1996 p.35

A person is guilty of robbery if he steals and immediately before or at the time of doing so and in order to do so he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.2

Robbery is therefore „theft‟ aggravated by the use of force or the threat of force. It follows; therefore, in this respect that robbery is not committed unless the necessary ingredients constituting the offence of „theft‟ have been proved. In other words the offence of theft need be established to allow for the offence of robbery to exist, so that a person who forces another to hand over money, believing that he has a legal right to it, is not guilty of robbery since not being dishonest, he is not guilty of theft, and this is so even though he does not believe he was entitled to use force to get the money.3

In Robinson,4 the accused person in this case, who was owed £7 by the complainant‟s wife, approached the complainant brandishing a knife. A fight followed, during which the complainant dropped a £5 note. The accused picked it up and demanded the remaining £2 owed to him.

The court of Appeal held that the prosecution had to prove that the accused was guilty of theft and that he would not (under s.2 (1) of the Act 1968) if he honestly believed that he had the right in law to deprive the complainant of the money, even though he knew he was not entitled to use the knife to get it.

To constitute robbery, the force must be used or threatened immediately before or at the time of the theft. It need not be used against the owner or possessor of the property stolen, so that if a gang uses force against a signal man only in order to stop and steal from a train, its members are guilty of robbery.5

There is no robbery if the force is used or threatened after „the time‟ of theft. The thief who uses force to defend his possession after he has taken the goods is guilty of robbery only if it

2 s.8 of the Theft Act of 1968

3 Card, Cross & Jones, Criminal law 12th Ed, Butterworths London, Dublin Edinburg, 1992 p.289

4 Robinson (1977) Crim L.R. 173 C.A

can be established that he is doing so at „the time‟ of the theft. This is not limited to the period (possibly a split of second of time) during which the initial appropriation with the mens rea for theft occurs, since an act of appropriation may be a continuing one. It may be that „the time‟ of the theft lasts as long as the theft can be said to be still in progress in common sense terms.

Where force is used, it must be used on a person, this does not however, require that force be used on the actual person to over power his resistance, and that force used only to get possession of property can be used on a person. In the case of a threat of force a threat of future force is insufficient; the threat must be „then and there‟ to subject another to force.

The force must be used or threatened in order to steal; a man who for example, knocks a woman to the ground to rape her, but then changes him mind and instead takes her hand bag which she has dropped is not guilty of robbery or assault with intent to rob, although he may be convicted of theft and of attempted rape.

                        Tanzania law with regard to robbery

The law with regard to robbery is governed by the Penal Code6 where this offence is defined as:

Any person who steals anything and at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or overcome resistance to its being stolen or retained, is guilty of the offence termed robbery

As it can be observed from the definition above, robbery is related to the offence of theft and for this reason it consists of the following ingredients or elements

  • that the accused stole something
  • immediately after such stealing he used or threatened to use actual violence to any person or property
    • with intent either
      • to obtain, or retain the thing stolen, or
      • prevent or over come resistance to its being stolen or retained.

It is important, therefore, that all the elements of the offence of theft or „ simple theft‟ it must be proved that the robberer actually took or had physical control of the thing the subject matter of robbery or else it would only amount to an attempt to rob. The gist of the offence of robbery is the actual taking of the property against the owner‟s will as a result of force or intimidation causing fear in the mind of the owner, or more importantly the property must be handed over by the victim or at his request.

In Nuru Ayub V.R.7 the accused were convicted of robbery. They threatened to shoot the complainant unless he gave them Shs: 600/=. The complainant‟s son, without a request from the complainant got the money and handed to the accused persons. Convictions for demanding money with menaces were substituted because the money was not taken from complainant nor at his request but was given by his son.

It must also be prove that the accused formed the intention to steal at or before he used or threatened to use violence. If the intention to steal is formed after the assault that can not be held to be robbery. This position was illustrated in the case of Mkwepu V.R.8 The accused met the complainant, a woman, and overtures to her, she rejected them, where upon he seized her by the wrist and as she struggled, he snatched her basket of food and clothing, away from her and run a short way in to the bush. He then invited her to come after him under no illusion as to his intention declined and went off in search of help. The accused was arrested the next day, but the complainant‟s goods were not recovered. It was held that, since at the time the accused took away the woman‟s basket he had no intention of steeling it, and that he did so in the hope that she would be enticed to follow him and further that he

formed the intention to steal the goods after his request of enticing in the bush had failed he could not be convicted of robbery because the intention to steal was not formed at the time that he assaulted her. A conviction for theft substituted.

Similarly general belligerent behaviour in which theft is committed with no rational connection between theft and the belligerent behaviour is not robbery.

In Miderege s/o Bemeye V.R.,9 accused was convicted of robbery with violence c/s 286 of the Penal Code. There was evidence that the accused while drunk, assaulted a number of persons in a Pombe Shop. After assaulting complainant, accused took complainant‟s coat and walked away with:-

The court held that; s.285 of the Penal Code provides that any person who steals anything and uses violence to obtain or retain the thing stolen is guilty of robbery. Here, the actions of the accused were not in order to obtain or retain the coat, but rather were part of general belligerent behaviour which had no rational connection with the theft, conviction for simple theft substituted.

In addition, the connection between the theft and violence must not be too remote in time, place in relation to the theft. In the case of Gatheri Njuguna V.R.10 the facts in this case were that, the complainant had left this house at 7 am and while returning at about 9 pm the same day, when he saw the appellant proceeding from the direction of his house carrying a bundle. On discovering that it was his house that had been broken into, he alerted his neighbours and they set out after the accused whom they found about 500 yards away. The appellant resisted and hit the complainant with a club before being over powered.

On appeal the court said, that at p.584:-

We think that the essence of the offence of robbery is an openly committed theft from or in the presence of someone or a theft where the offender is caught more or less in the act or immediately after that act. We do not think it extends to a case

such as this where the offence was committed clandestinely without discovery or chase until after the offender had left the premises and had proceeded so far on his way as he had in this case without being discovered to be the thief. A conviction for burglary and theft was substituted.

Robbery as it has been pointed out earlier is characterized by the use of force or threat of violence. The use of force or threat of violence we in this respect not only must be for the purpose of obtaining or retaining the thing stolen, but must occur at the time of the theft or immediately before or after it.11

Where as it so happens, there is an interval as between the time of stealing and the assault, the said assault can not be said to be connected with the act of steling.12

In this context therefore, what is important is „time factor‟ and the use of violence or force or threat of violence should be simultaneously with the act of stealing. Lapse of time as between the act (stealing) and the use of force in this case will not suffice, for the offence of robbery to be accommodated, and in most cases as such the offence, occasioned will be one of „simple theft‟.

Time factor as the utmost important element in the offence of robbery was re echoed in case of Jackson Simon Manitu V.R.13 The appellant in this case was charged with and convicted of robbery c/s 285/286 of the Penal Code. The facts were as follows.

On 28.3.1979 at about 6:45 am the complainant Theopista Mugashingwe (Pw1) was inside the train at Gulwe Railway Station. She had just received her suit case from a friend when suddenly the appellant snatched the suit case and threw it out of the train. The appellant pushed her away and managed to jump out of the train and disappeared with the bag.

It was held on appeal as:-

11 Mkwe Laki Moja V.R.(1967) HCD n.372

  • Per s.285 of the Penal code:

any person who steals anything and at or immediately before or immediately after the time of stealing uses… or threatened to use…. In order to obtain or retain the thing stolen or to prevent or over come resistance to its being…or , is guilty of the felony termed robbery.

  • by violently pushing the complainant away immediately after stealing the suit case he was not only resisting arrest but also seeking the retain of the stolen suit case.
  • it is not necessary that at the time of using violence an accused person must have in his possession the stolen property what is important is the time factor and the fact that actual violence is used in order to retain the stolen property.

Importantly, as demonstrated in the present case, although the accused person must not necessary have in his possession the article stolen at the time of using force, he is nevertheless regarded to have been in possession of the said article though indirectly, e.g. throwing the article stolen away or passing it on to his fellow immediately after being stolen, where he will have physical control of the article stolen after wards.

16                 THE DOCTRINE OF RECENT POSSESSION

  1. Introduction

Sometimes, and in cases of theft one may not be in a position to accumulate sufficient evidence establishing the ingredients necessary to constitute the offence of theft. If this is the case, proof of the commission of the offence may be inferred from the circumstances surrounding the offence and this situation can be best saved by the application of the doctrine of recent possession.

                        RECENT POSSESSION

The doctrine of recent possession is not statutorily defined nor does how recent the possession may be, however the meaning subscribing to the doctrine has been developed

through case laws, effecting the fact that if a person is found with an article recently reported stolen, that person may be held to have stolen it.

In DPP.V.Joachim Komba,1 the court was of the view that, the doctrine of recent possession provides that if a person is found in possession of recently stolen property and gives no explanation depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or guilty receiver.

The court held further that, an inference under the doctrine of recent possession may be drawn to up hold any offence however penal it may be including the offence of murder.

In Said Mkuyu V.R.2 it was alleged that the appellant (said Mkuyu) and others broke into a house and made off with the radio. The radio was recovered 2 hours after the theft. The radio was found in one Yahya‟s house. Yahaya alleged to have bought the radio from the appellant. Justice El – Kindy (as he then was) used the occasion provided by Mkuyu‟s appeal to elaborate and apply the doctrine of „Recent Possession‟

“ Where an accused is found in possession of stolen property shortly after the commission of the offence of house breaking, it can be presumed that in the absence of a probable explanation, he came into possession of it either through house breaking and stealing or receiving it knowing it to have been stolen or unlawfully obtained”

From Justice El – Kindy‟s dictum we can deduce the doctrine of recent possession in the following sequence:

  • an accused person is found in possession of an article recently reported stolen,
    • a presumption is raised that the accused person came into possession fo the article by stealing it or by receiving it knowing it to have been stolen,
    • this presumption is rebuttable and it lies upon the accused person to give a probable explanation showing that he came by the article innocently.

1 DPP V. Joachim Komba (1985) T.L.R. 228

The recency of a thing, reportedly stolen is a matter of fact, to be determined by the facts of the case in question. In other words, no definite principle which can determine the period of time which is recent enough to justify the application of the doctrine of recent possession.3

However, in the circumstances of the case of DPP.V. Joachim 4 , eight months after the disappearance of the said stolen radio cassette was said to be too long for the doctrine of recent possession to apply.

It therefore, follows that the test in determining the period of time which recent enough for the purposes of the application of the doctrine of recent possession is a subjective test depending on the nature of the stolen thing.

For example a stolen pen may change hands quicker than say a gun. Some guideline to determine the question how recent is recent was perhaps best furnished in the following cases:-

In Peter Mtengo and Four others,5 the appellant s were found with the stolen cattle in D‟Salaam on 9th September 1985, four days after the theft, and applying the doctrine of recent possession they were deemed to have stolen them.

In Naftali Ngalya V.R,6 the court observed that:

  • in deciding whether possession is recent the court must have regard to the nature and value of the property.
  • the period of four and a half months between the stealing of the head of cattle and the finding it in possession on of the accused entitled the court to involve the doctrine of recent possession

3 DPP.V.Joachim Komba (suppra)

4 Supra

5 Peter Mtengo and Four Others (1994) TLR 112

6 Naftali Ngalya V.R.(1976) LRT 1245

  • a conviction of receiving stolen property c/s 311 was more appropriate than the conviction for theft.

The facts of this case were as follows:

The appellant, Naftali ngalya and one Malugu Malanga, were jointly charged with and convicted of cattle theft c/s 265 and 268 of the Penal Code and each sentenced to five years imprisonment.

Malugu‟s appeal was commonly rejected by Mapigano Ag.J. (as he then was) on 22nd June 1974.

The appellants‟s appeal was admitted for argument as to whether the period between the theft of the cattle and the finding of the appellant in possession of one of the stolen cattle was so recent as to entitle the trial court to invoke the doctrine of recent possession.

There was undisputed evidence that on 7 / 3 / 73 one said Ally (Pw1) had his two head of cattle stolen as they were being gazed. One of the cattle was found (already slaughtered) in the possession of Malugu only two days after it had been stolen. Four and half months after the theft (21/7/1973) the second head of cattle was found in the possession of the appellant as he was about to sell it at Kigwe cattle market.

There was ample evidence that the appellant was found in possession of a head of cattle which the complainant amply identified as his cattle stolen on 7/3/1973.

The learned resident magistrate did not believe accused‟s defence that he was not in possession of the animal. On the evidence he was entitled to come to this conclusion.

The only question this court has to look into is whether a period of four months and a half from the time the head of cattle was stolen to the time it was found in the possession of appellant was recent enough to support the doctrine of recent possession.

The learned state Attorney argued that the period of four and a half months was too long to support the doctrine of recent possession and he therefore didn‟t support the conviction.

The law on the subject of recent possession is this:

If a person is in possession of stolen property recently after the stealing, it lies on him to give a reasonable; explanation to account for his possession if he fails to do so he is presumed to have come by it dishonestly, that is he is either the actual thief or guilty receiver.

Whether he is to be found guilty of stealing the property or guilty of receiving it will depend on the surrounding circumstances. Lapse of time progressively weakens the doctrine of recent possession and finally extinguishes it.

In deciding whether possession is recent regard must be had to the nature and value of property. Shop – goods and all wearing apparel such as shirts, which easily change hands will only be presumed to have been stolen or feloniously obtained if they are found in the possession on of an accused a very short time, say two or three days after they had been stolen. Four months have for example been held to be not „recent‟ where a watch was stolen.7

Five months have been held to be recent where the property stolen was not common article which easily change hands.8

A month has been accepted by this court as “recent” where a radio was stolen.9

In the present case the accused was seen in possession of the stolen cattle four months and a half after it had been stolen. A head of cattle can not in my view be said to be a property which easily changes hands. While a period of four months and a half can be said to be too long a period to support the doctrine of recent possession in case of common articles which easily change hands articles which easily change hands such as watches, shirts and the like, it

7 Gasper s/o Jovin V.R.(1968) HCD n.483

8 Dongwa s/o Masiku V.R. (1967) HCD n.454

can not in my view be so said in a case of head of cattle. Four and a half months period between the stealing of the head of cattle and the finding it in possession of the accused did in my view entitle the learned Magistrate to invoke the doctrine of recent possession.

And if the court was satisfied that the prosecution had proved that the head of cattle belonged to the complainant (Pw1), and there was as I have already said, ample evidence in support of this conclusion, the learned magistrate (Resident) was right in finding that the accused was either the actual thief or a guilty receiver of the head of cattle.

Taking into account the totality of the evidence it is my view however that a conviction of receiving stolen property c/s311 would have been more appropriate than the conviction for theft.

The conviction of theft is accordingly varied to one of receiving the head of cattle knowing or having reason to believe that it was feloniously obtained c/o 311 of the Penal Code.

As to the sentence of five years imprisonment this has also to be varied as the offence of receiving stolen property – cattle c/s 311 of the Penal Code is not a scheduled offence under the minimum sentences Act.10

The sentence of five years imprisonment is hereby set aside and in substitution thereby the accused is sentenced to two years imprisonment.

Other references

  • Ally Bakari and another (1992) TLR 10
  • George Mungwe V.R. (1989) TLR 10

–           Hamisi V.R. (1963) E.A.11

  • Malawi V.R.(1969) HCD n.172
  • Maziku V.R.(1972) HCD n.174
  • Michael Mhuto V.R.(1975) ZRT 18

9 Musa Ali Mahambi V.R. (1968) HCD n.157

  • Omparkash Gandhi V.R.(1961) E.A.643
  • Ramadhani V.R.(1969) HCD n.218
  • Said Malee V.R.(1967) HCD n.37

Seif Aloo V.R.1976) LRT 55