1.

1 Theft

Section 258

(1) 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
anything capable of being stolen, steals that thing.

(2) A person who takes or converts anything capable of being

stolen is deemed to do so fraudulently if he does so with any of
the following intents, that is to say–

(a) an intent permanently to deprive the general or special

owner of the thing of it;

(b) an intent to use the thing as a pledge or security;

(c) 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;

(d) an intent to deal with it in such a manner that it cannot

be returned in the condition in which it was at the time of
the taking or conversion; or

(e) 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,

and "special owner" means any person who has lawful possession
or custody of, or any proprietary interest in, the thing in question.

(3) When a thing stolen is converted, it is immaterial whether it

is taken for the purposes of conversion or whether it is at the time
of the conversion in the possession of the person who converts it
or whether the person who converts the thing in question is the
 holder of a power of attorney for the disposition of it, or is
otherwise authorised to dispose of it.

(4) When a thing converted has been lost by the owner and found
by the person who converts it, the conversion is not deemed to be
fraudulent if at the time of the conversion the person taking or
converting the thing does not know who is the owner and believes
on reasonable grounds that the owner cannot be discovered.

(5) A person shall not be deemed to take a thing unless he moves

the thing or causes it to move.

Ordinarily, theft means stealing. A person who fraudulently, and without claim of right
takes any thing capable of being stolen, or fraudulently converts to the use of any other
than the general or special owner thereof anything capable of being stolen, steals that
thing.1

1.1.1 Taking

Since the actus reus of theft is taking, also termed asportation, a person shall not be
deemed to have taken the thing unless he causes it to move. And where the actus reus is
conversion, it occurs only when a person wrongfully diverts or appropriates a thing, and
apply the same to one’s use. Conversion is fraudulent where a person, who at first obtains
the thing lawfully, later develops the intention to deprive the owner.

In a case of cattle theft, where cattle were driven out of the boma, but still within the
victim’s (complainant’s) compound, the movement was held to be enough to constitute
taking.2 But it was not held to be so where the accused pulled a purse out of the pocket of
another whose sudden movement prevented the accused from obtaining the purse, despite
the purse being far enough out of the intended victim’s pocket so that when he sat down
immediately thereafter his purse fell to the floor. The accused was found guilty of

1
Section 258
2
Mezengo Magale v R (1969) HCD 156
attempted pick pocketing.3 In R v Turvey,4 the appellant, who was in charge of a Ministry
of Works depot, approached W, who was in charge of another depot, and suggested a
plan, whereby W was to steal some goods from his depot, hand them to the appellant,
who, in turn, would hand them to a receiver. W informed his superiors of the plan, and,
with a view to entrapping the appellant, it was arranged that W should hand over the
goods to the appellant, and W did in fact do so. It was held on appeal that the charge w as
wrong, as there was no evidence of asportation. The appellant did not carry away the
goods against the will of the owner, who was willing that he should have them, and
handed them to him.

Lord Goddard LCJ stated at p 60-61:

That being so, the question arose whether or not the appellant could be
charged with stealing. He could have been charged with conspiracy that he
was inciting to commit a felony and other charges, there is no doubt, but
could he be charged with the felony of stealing? In this case it is perfectly
clear that if he stole the goods, he stole them at Exeter, but he did not take
them there against the will of the owner because the owner handed them to
him and meant to hand them to him. The chairman in his ruling, when
counsel submitted no case, set out his findings, and it appears that he
decided principally on the authority of R v Eggington, an old case, but
perfectly good law, and also because he took a certain view with regard to
the control the owner was exercising over the goods.

R v Egginton was a case in which a servant told his master that someone
was going to rob the premises. “Very well,” said the master, “let them rob
the premises and we will catch them”; in other words, to put a homely
illustration, a man, knowing that somebody is going to break into his house,
leaves the bolts drawn and so makes it easy for the man to come into the
house, and when he comes in he catches him and a crime has been
committed; he commits the crime none the less that the servant has been
told to make things easy. In this case, if Ward had been told by the person
3
In Ambokile Mwamalengo v. R [1967] H.C.D. n. 275.
4
[1946] 2 All ER 60
 who really had control of these matters, “Let the appellant come in and take
the goods,” that would have been one thing, but he told him to take the
goods and hand them to the appellant, and that makes all the difference.

In R. v. Mgomba s/o Makunya,5 the accused killed a goat but fled without moving the
care as when an alarm was raised. Since there was no asportation proved (or alleged), the
conviction was held to be improper. A conviction of willfully and unlawfully killing an
animal contrary to section 325 of the Penal Code was substituted. In Braison s/o
Sechayo v. R,6 the accused broke into a goat house with intent to steal there from.
Hearing some noises, the owner of the goat house, who lived adjacent to it, came out and
locked accused inside the goat house. As there was no evidence that accused had moved
any of the goats inside, the asportation requirement of the offence of theft was not
established. In Doto s/o Luhende v. R,7 the Complainant had left a bull in a market place
while searching for another animal which had fled. On returning, he found the bull
missing. He later discovered it among some people who told him that accused (who was
absent) had claimed ownership of the bull. When accused appeared, he claimed, in the
presence of complainant, that the bull was his. Complainant called in the police. It was
held that the evidence merely indicated that accused falsely claimed ownership of the
bull. There was no evidence that he “took” the bull, as required by the definition of theft
– that the word “takes” connotes asportation. But accused was not alleged to have moved
or caused to be moved the bull from one place to another. Almost similar to Luhende’’s
case Lerunyani v Republic.8 At a trading centre, a passer-by saw the accused sitting
outside a cattle boma. On enquiring about buying a cow in the boma, the accused told the
passer-by that the cow was owned by him (the accused) and the accused agreed to sell it
to the passer-by. The passer-by gave the accused the money, and the true owner of the
cow then appeared and stopped the transaction from going further. In the magistrate’s
court the accused was convicted of stealing the cow under s. 268 of the Penal Code (K.).
On appeal, it was held that there was no “taking” of the cow within s. 268 (1) and (5)

5
[1967] H.C.D 106
6
[1967] H.C.D. 365
7
[1968] H.C.D 439.
8
[1968] EA 107
Penal Code; and that there was no “conversion” of the cow within s. 268 (1) Penal Code;
and therefore stealing was not proved. Sir John Ainley CJ stated:

There was no evidence of any taking here, and the only question left for
consideration is whether there was a conversion of the animal within the
meaning of s. 268. We answer that question in the negative, because we do
not think that there was a conversion of the animal at all. The obscure
wording of sub-s. (3) of s. 268 may indicate that it is possible for a man
fraudulently to convert property to the use of some person and thus to steal
the property in spite of the fact that the property at the moment of
conversion is not in his possession. But we may be forgiven for saying that
there must yet be a conversion, and that word used in this context we think
implies at least an act which results in a turning about, a change, in the
control of a thing in the ownership of a thing or in the possession of a thing.
We are not prepared to say with complete certainty what the position would
have been if Kale had walked off with the cow. The fact is that he did not do
so. There was no delivery of the cow, and absolutely nothing happened
either in law or in fact, to the eye of a lawyer or to the eye of a layman,
except the transfer of Shs. 40/- from Kale’s pocket to that of the appellant.
Emphatically Kale never got the use of the cow. If the appellant’s story, to
which we have referred, was untrue, then of course he was guilty of
obtaining the Shs. 40/- by false pretences, but we are satisfied that he did
not “convert” this cow. For these reasons, and not for the reasons advanced
by the appellant, we allow this appeal, quash the conviction and set aside
the sentence.

We leave it to the State to decide whether further proceedings should be

taken, but we point out that this man has been in custody since March, and
that if he was guilty of what may be described as a fair-ground trick it was a
wholly unsuccessful trick, and caused no loss to anyone.
1.1.2 The owner

The owner may be general or special owner of the thing, and "special owner" means any
person who has lawful possession or custody of, or any proprietary interest in, the thing
in question.9 In Rose v. Matt,10 a purchaser of goods deposited with the vendor, as
security for the purchase price, a travelling clock which belonged to him, it being agreed
that, if the purchaser did not pay for the goods within one month from the date of the
purchase, the vendor should be entitled to sell the travelling clock. The purchaser then
took the goods away. Later, returning to the shop when the vendor was not there, the
purchaser took the clock away without paying the price of the goods. He did this to
prevent the vendor from selling the clock, but without any intention of charging him with
its loss. It was held that the vendor, as bailee, had a special property in the clock, and,
therefore, he was the owner thereof within s 1(2)(iii) of the Larceny Act, 1916; the
respondent intended to deprive him of his special property, and, consequently, he was
guilty of larceny under s 1(1).

Absence of knowledge by the owner, of existence of his property, may not prevent him
from having the necessary animus domini. In Hibbert v. McKiernan,11 the appellant,
while trespassing on some golf links belonging to the members of a golf club, picked up
and carried away eight golf balls which had been lost and abandoned by their original
owners. The club had taken steps to exclude trespassers from the links and to prevent the
taking of balls, but the officials of the club did not know at any given moment the
position or number of balls that might be lying on their property.
Held – Every householder intends to exclude thieves from his property and this confers
on him a special property in goods found on his land which is sufficient to support an
indictment if the goods are taken therefrom with a felonious intent; on the evidence the
appellant had such an intent; and, therefore, he was rightly convicted of larceny under the
Larceny Act, 1916, s 1(2)(i)(d).
PRITCHARD J. I agree. In view of the finding of fact that the balls had
been abandoned, the main question argued in this case was whether, before
the appellant picked up the balls, the members of the club had acquired of
9
See section 258(2) [Cap 16 R.E. 2002].
10
[1951] 1 KB 810; [1951] 1 All ER 361
11
[1948] 2 KB 142; [1948] 1 All ER 860
 them a possession of such a nature that interference with it was capable of
becoming the basis of a charge of larceny. Before it can be said that the
members did acquire such a possession of the balls, I think it must appear
from the facts found that they intended to exclude others from interfering
with the balls, and that they had over them a degree of power which was
sufficient for the purpose of giving effect to such intent. In my judgment, on
the facts found, it is clear that the members did so intend and had such
power. It is true that there was no finding that they knew of the existence of
these eight balls on their links, but I do not think that this absence of
knowledge prevented the members having the necessary animus domini,
which may be contained, and, I think, was contained, in a larger intent to
exclude others from the place where, in fact, the balls were. For these
reasons I agree that the appellant was rightly convicted of larceny and that
this appeal fails.

A husband may be guilty of stealing from his wife or a wife from her husband.12

When a person receives, either alone or jointly with another person, any money or
valuable security or a power of attorney for the sale, mortgage, pledge or other
disposition of any property, whether capable of being stolen or not, with a direction in
either case that the money or any part thereof, or any other money received in exchange
for it, or any part thereof, or the proceeds or any part of the proceeds of the security, or of
the mortgage, pledge or other disposition, shall be applied to any purpose or paid to any
person specified in the direction, the money and proceeds are deemed to be the property
of the person from whom the money, security, or power of attorney was received until the
direction has been complied with.13

12
Section 264 [Cap 16 R.E. 2002]
13
Section 260 [Cap 16. R.E. 2002]
In Hawkins v R14 the appellant, an accountant, was secretary to one, Churcher, in respect
of his company promoting transactions as well as his private financial affairs. In April,
1957, one of Churcher’s companies named V. Ltd. was in financial difficulties and the
appellant induced one, Health, to lend Churcher a sum of Shs. 10,000/- at seven per cent.
interest for a period of six months. On July 10, 1957, Churcher consulted the appellant
with a view to repaying Heath and made out a crossed cheque for Shs. 10,166/42 in the
appellant’s name with the object of making immediate repayment of the loan. The cheque
was paid by the appellant on the same day into his own office account which at the time
was overdrawn by some Shs. 25,000/-. This sum was not paid to Heath nor was he
informed of the payment by Churcher. On October 16 Heath wrote to the appellant
complaining that neither the principal nor the agreed interest had been repaid as agreed,
and giving one further month for its repayment with interest; to this the appellant replied
saying that his (Heath’s) rights were being protected and that when the capital was repaid,
he would arrange for interest to the date of repayment to be paid. He did not mention,
however, that Churcher had already repaid the loan to him. After further pressure the
appellant repaid Heath on December 31, 1957, by a cheque drawn on Churcher’s personal
account (which he was authorised to operate) for the total sum of Shs. 10,502/50. The
appellant was subsequently convicted by a judge of the Supreme Court sitting with a jury,
of stealing a cheque for Shs. 10,166/42. The appellant appealed and the substantial point
argued at the hearing of the appeal was that, inasmuch as he (the appellant) was fully
authorised by Churcher to pay the cheque into his own office account, which was exactly
what he had done, he did nothing fraudulent with the cheque, as distinct from the cash
into which it was converted after its payment into the bank and accordingly he did not
steal the cheque. The Court of Appeal at Nairobi held that in view of the vital relevance
of intent in s. 263 (2) of the Penal Code (Kenya) (In pari material with Section 260 of
Cap 16), the appellant’s physical act in paying the cheque into his office account could
not be divorced from his intention when doing so, for the purpose of deciding whether
that payment was a fraudulent conversion; so that if he paid the cheque into his office
account with the intention of not paying Heath an equivalent sum within at most two
days, but of reducing his own overdraft, even though he may have intended at some later

14
[1959] EA 47
date to pay Heath, then his act was not authorised and he was guilty of a fraudulent
conversion of the cheque.

In Muraya Wainaina v R,15 The appellant was employed as a houseboy by a chief

inspector of police who left in a pocket of his jacket an envelope containing Shs. 474/-
which he had received in Nairobi as the amount of the pay of some police constables for
payment to the constables concerned. The chief inspector left the jacket in his quarters to
be washed and inadvertently left the envelope in the jacket pocket from which it was
stolen. He was convicted of theft by a servant and sentenced to two years imprisonment
and to be subject to police supervision for two years on his release. On appeal against
conviction and sentence, it was held that at the time of the theft the money remained the
property of the person or authority who paid it to the chief inspector, namely, the
Government. The offence proved was simple theft and was not theft by a servant. Rudd
Ag CJ stated:
We consider, however, that the offence which was established was an
offence of simple theft as defined in s. 263 of the Penal Code and was not
an offence under s. 276 which reads as follows:
“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, he is liable to imprisonment for seven
years.”
When this section is read with s. 265 of the Penal Code it is clear in our
opinion that the money which was stolen was not the property of the chief
inspector of police who was the appellant’s employer. Section 265 of the
Penal Code reads as follows:
“When a person receives, either alone or jointly with another person,
any money or valuable security or a power of attorney for the sale,
mortgage, pledge, or other disposition of any property, whether
capable of being stolen or not, with a direction in either case that
such money or any part thereof, or any other money’ received in
exchange for it, or any part thereof, or the proceeds or any part of the
proceeds of such security, or of such mortgage, pledge or other
disposition, shall be applied to any purpose or paid to any person
specified in the direction, such money and proceeds are deemed to be
15
[1959] EA 601
 the property of the person from whom the money, security or power of
attorney was received until the direction has been complied with.”
In the course of the hearing of the appeal it was suggested that under s.
267 of the Penal Code the money was the property of the police constables
who were persons to whom it was intended to be paid. Section 267 of the
Penal Code refers to money received on behalf of another. If the chief
inspector had received the money on behalf of the constables that section
would apply. The position is not completely clear on the evidence as
recorded but in our opinion it is more likely that this was a case in which
the chief inspector received the money with a direction that it be paid to
the constables concerned and that he did not receive the money on behalf
of those constables. In our opinion the money remained the property of the
person or authority who paid it to the chief inspector, that is to say, it was
at the time of the theft the property of the Government.
The conviction is altered to a conviction of simple theft under s. 263 and
punishable under s. 270 of the Penal Code. The appeal against sentence is
dismissed.

261. Funds, etc., received by agents from sales

When a person receives either alone or jointly with another person, any property
from another on terms authorising or requiring him to sell it or otherwise dispose of it
and requiring him to pay or account for the proceeds of the property or any part of the
proceeds or to deliver anything received in exchange for the property to the person from
whom it is received or some other person, then the proceeds of the property and anything
so received in exchange for it are deemed to be the property of the person from whom the
property was so received until they have been disposed of in accordance with the terms
on which the property was received unless it is a part of those terms that the proceeds, if
any, shall form an item in a debtor and creditor account between him and the person to
whom he is to pay them or account for them and that the relationship of debtor and
creditor only shall exist between them.
When a person receives, either alone or jointly with another person, any money on behalf
of another, the money is deemed to be the property of the person on whose behalf it is
received unless the money is received on the terms that it shall form an item in a debtor
and creditor account and that the relationship of debtor and creditor only shall exist
between the parties.16
D. P. P. v. Henry Rwaashamira (1973) L.R.T. n.15.

1.1.3 Fraudulent intention

It is an elementary rule of law that in order to convict an accused of theft the prosecution
must prove the existence of actus reus which is specifically termed as asportation and
mens rea or animus furandi,17 and failure to do so will negate the offence of theft. Where
the accused proves a claim of right in relation to the object alleged to have been stolen, he
can not be found guilty of the offence of theft.18

The term “fraudulently” is mentioned in the definition of theft to depict mens rea, and
covers circumstances where a person takes or converts anything capable of being stolen
is with either an intent to permanently deprive the owner;19 an intent to use the thing as a
pledge or security;20 an intent to part with it on a condition as to its return which the
person taking or converting it may be unable to fulfil; 21 an intent to deal with it in a
manner that it can not be returned in a condition which it was at the time of the taking or
conversion;22 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. 23 In
Ali s/o Iddi, v. R,24 subject to the court’s interpretation were the provisions of section 258
(2) (e) which defines fraudulent intention in the case of money theft. The Chief Justice
Georges upheld the conviction because the evidence established that the alleged borrower
used the complainant’s money for his own purposes without permission to do so;
thereafter the appellant kept avoiding the complainant, who finally brought the matter to
the attention of the police.

16
Section 262 [Cap 16 R.E. 2002]
17
Christion Mbunda v R (1983) TLR 340
18
Refer to the case of Mohamed Hassan v R (1969) HCD 71, and a part on defences to criminal
responsibility.
19
Section 258 (2) (a)
20
Section 258 (2) (b)
21
Section 258 (2) (c)
22
Section 258 (2) (d)
23
Section 258 (2) (e)
24
[1967] H.C.D. n. 219
In Yusuf Salim Mkaly v R25, the appellant was charged with stealing by servant c/ss 271
and 265 of the Penal Code. it was alleged that on or about 7th August 1968, being a person
employed by the Tanganyika African National Union as a Regional Executive Secretary,
he stole Shs. 695/- which came into his possession by virtue of his employment and
which was the property of his employers. The appellant admitted taking the money which
had been given to him to pay for repairs to a Land Rover. He had gone to Peramiho
Mission with the Land Rover and the money but the father in charge of the repair shop
had refused to take the money before some estimate had been prepared of the probable
cost of the repairs. His evidence was that he had then returned to Songea where he had
received a message from TANU Headquarters, authorizing him to travel to Morogoro as
some member of his family was sick. There was at the time no superior officer of TANU
at Songea. He decided therefore to use part of the Shs. 695/- which he had in his
possession to pay his fare home and while at home he used more of the money. On 13 th
September 1968 he reported to TANU Headquarters and informed the head of the
accounts division that he had used the money. This person told him that deductions would
be made from his salary. He asked that no deductions be made during his period of leave
– September, October and November, but that the whole amount be deducted in
December 1968. This was in fact done. Nevertheless, on 14th February 1969, the
appellant was charged with stealing by servant and convicted. The magistrate held that
the fact that the money had been refunded was immaterial. The appellant was guilty of
fraudulent conversion by virtue of s. 258(2) (e) of the Penal Code, which provides that a
fraudulent intent is established, in the case of money, by “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 owner.” On appeal to the High Court, Georges C. J. stated:

“… it must be borne in mind that theft must inevitably carry with it a

connotation of fraud. S. 258 of the Penal Code defines theft thus:- “A
person who fraudulently and without claim of right takes anything
capable of being stolen or fraudulently converts to the use for any person
other than the general or special owner thereof anything capable of being
stolen, is said to steal that thing… It seems to me incredible and against
25
(1969) HCD 264
 all reason that a person who in the course of a journey is entrusted with a
twenty shilling note to deliver to someone at the other end should be held
guilty of larceny if in the course of that journey he spent that not e for his
own purposes even though on his arrival he handed over a similar twenty
shilling note to the person whom it had been sent to. To describe such
conduct as being technical larceny appears to me to go much further than
is required in order to make sure that the limits of dishonest conduct are
not too widely set. Unless it was known, for example, that the particular
twenty shilling note which had been entrusted for delivery had some
intrinsic worth over and above its face value, it would appear to me that
the person to whom it was entrusted could reasonably assume that the
owner would have no objection to its use and immediate replacement so
long as the person to whom it had in fact been sent received twenty
shillings. It appears to me that here could be no theft not because there
was an intention to repay but because there would exist a genuine belief,
reasonably held in the circumstance that the use of he particular twenty
shilling not under those circumstances would not be objected to. As I
have indicated the position would be otherwise if there were specific
instruction to deliver a particular not or a particular coin and if such
instructions were willfully ignored.”

In Mikidadi Abdullah v. R,26 the appellant did not dispute that on or about 14th July. 1967,
he took Shs. 400/- from the Club’s treasurer but he maintained that this was a loan to him
which was taken in good faith. In the court’s (Seaton J) view:-

it was necessary to inquire further before proof of the appellant’s

fraudulent intention could be found. It appears from the record that
the appellant did not take the Shs. 400/- secretly or in an underhand
way. He informed the Club treasurer Mr. Nondo (P.W.5) that he was
taking a loan and would repay it by subsequently giving a cheque of

26
(1970) H.C.D 225
 his for this amount. He failed to do so before the present proceedings
were instituted by that does not necessarily prove he never intended
to do so …

It seems that a crucial distinction between Ally Iddi’s and the two cases Mikidadi
Abdullah v. R and Yusuf Salim Mkaly is the knowledge of the appellant in Ally Iddi’s case
that he did not have the owner’s permission to use his money for a loan.

Where a person uses another’s money entrusted to his custody without that owner’s
consent where it is reasonable to assume that amount would have been given if asked,
and if in such circumstances, the owner treats the transaction as one of loan when it is
reported to him that the money has been used, then he could not later look to take
criminal action. On the other hand, if there was no ground for reasonably believing that
the owner would have given consent for the use, and if on the report of it the owner
protests, the mere fact that she takes no immediate action and gives the offender time to
get the matter right by payment could not change the character of the original
unauthorized use, and a person in such circumstances may be guilty of theft.27

When a thing converted has been lost by the owner and found by the person who converts
it, the conversion is not deemed to be fraudulent if at the time of the conversion the
person taking or converting the thing does not know who is the owner, and believes on
reasonable ground that the owner can not be discovered. 28 It means that there must be an
owner of the thing alleged to have been stolen. No one can sill from “no owner” because
the intention to permanently deprive “the owner” can not exist if the property “stolen”
does not have an owner. The owner may be legal or special, and a legal owner can steal
from the special owner.29 The Penal Code defines the special owner to mean any person
who has lawful possession or custody of, or proprietary interest in the thing in question. 30
Where X gives a book to Y, so that Y can read it for a while and return it back to X, Y
will be the special owner, as X remains to be the legal owner. As the book is still in the

27
Ali Iddi v R (1969) HCD 263
28
Section 258 (4)
29
30
Section 258 (2)
possession of Y (the special owner), X secretly takes the book, and further asks it from Y
(as if nothing has happened), X can be said to steal the thing if he intends Y to believe
that he (X) has not taken the book. But no person steals from himself.31

1.1.4 Without claim of right

A person has a claim of right where he honestly asserts what he believes to be a lawful
claim, even though it may be unfounded in law or fact. 32 In Marcel Mpembee v. R,33 the
accused was convicted in the Primary Court of cattle-stealing, from which he appealed to
the District Court, which dismissed the appeal. The appellant had contended that the
cattle which he was alleged to have stolen belonged to or at least partly belonged to him.
He maintained this claim throughout the proceedings from the Primary Court upwards.
The lower courts found that the cow did not belong to the appellant, and convicted him of
cattle-stealing. On appeal to the High Court, it was held that the two courts below had
failed to consider the fact that the accused maintained genuinely (though perhaps
erroneously) that the cow belonged to him and that he had a real and honest claim to it. It
matters not whether that claim is right or wrong; it matters not whether, in the eyes of the
court, the claim may amount even to a fantasy. If the accused at the time of the taking
thought genuinely that he was taking his own property, then however incorrect his claim
might be, whatever the unreasonableness of his arguments, he cannot be convicted of
theft.

In Francisko Sewava v. R,34 the appellant was charged in the District Court with theft of
six doors and twelve iron sheets, described in the charge as the property of one A.S. and
after due trial, was convicted of the offence and sentenced to twelve months’
imprisonment. A.S had heard through his mother that his house in Kazo had been pulled
down and that doors and iron sheets had been stolen. Neither the mother nor A.S. had
gone to the site to verify the truth of the information but a police constable and A.S.
interrogated one Mary who explained that she had bought two doors and twelve iron

31
Enock Sanane v R (1982) TLR 256
32
Marcel Mpembee v. R. [1969] HCD 222
33
[1969] HCD 222
34
[1966] E.A
sheets from the appellant for Shs. 120/-. The appellant readily admitted having sold the
doors and iron sheets to Mary. From the evidence at the trial there was some doubt as to
whether A.S. and the appellant were referring to the same house and the main defence of
the appellant was that the doors and iron sheets sold by him and in acknowledgment
whereof he had openly given Mary a receipt was his property. The appellant appealed to
the High Court on various grounds, but the substantial ground of appeal was that the trial
magistrate had erred in law in failing to direct his mind to the issue of ownership of the
house from which the doors and iron sheets came. It was submitted that the trial
magistrate had failed to consider this claim and that this omission had occasioned a
miscarriage of justice. The court held that the appellant, having properly asserted his
claim of right over not only the house from which the doors and iron sheets were
extracted but also over the doors and iron sheets themselves, it was plainly the duty of the
trial magistrate to resolve the two conflicting claims which he failed to do; that it was
probable that if the trial magistrate had directed his mind to the appellant’s claim of right,
his decision might have been different.

Also refer to the defence of bona fide claim of right

1.1.5 Things capable of being stolen

Not everything can be stolen. A thing shall be said to be capable of being stolen if it is
movable,35 or capable of being made movable.36 Every tame animal, whether tame by
nature or wild by nature but tamed, which is the property of any person, is capable of
being stolen.37 Animals wild by nature, of a kind which is not ordinarily found in a
condition of natural liberty in Mainland Tanzania which are the property of any person
and which are usually kept in a state of confinement, are capable of being stolen whether
they are actually in confinement or have escaped confinement, 38 and even while they are
being actually pursued after escaping from confinement, but not at any other time. 39

35
Section 157 (1)
36
Section 157 (2)
37
Section 157 (3)
38
Section 157 (4)
39
Section 157 (5)
Animal wild by nature is deemed to be in a state of confinement as long as it is in a den,
cage, sty, tank or other small enclosure, or it is otherwise so placed that it can not escape 40
Wild animals in the enjoyment of their natural liberty are not capable of being stolen but
their dead bodies are capable of being stolen. Everything produced by or forming part of
the body of an animal capable of being stolen is capable of being stolen. Where a person
kill certain animals41 with intent to steal its skin or carcass or any part of its skin or
carcass he shall, for the purposes of section 265 and this section, be deemed to have
stolen the animal.42

Things which are not movable, say, land, or house can not be stolen. But so long as a
fluid such as water could be sufficiently appropriated to the user, it could be stolen. 43 In R
v Ndesario,44 the accused was charged with theft and malicious damage to property. The
accused person had an agreement with the complainant where he (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 6am and
9am. The accused was arraigned of having stolen water and breaking the furrow at night.
The accused had no right to extract water at any other time than the stipulated one. It was
held that so long as a fluid such as water could be sufficiently appropriated to the user, it
could be stolen.

The penal code is silent about the value of a thing capable of being stolen. In Kyewawula
v Uganda,45 The accused was employed by Uganda Currency Board and her work
schedule entailed counting of old currency notes which were to be destroyed later. She
was convicted of stealing some of the old notes which were described in the charge sheet
as “cash“ Kyewawula appealed to the High Court of Uganda. It was held that the old
notes were no longer money and could not be stolen. The court was of the view that To
form a subject of larceny the thing stolen must have some value. Only economic value is
taken into account. The value may be great or small so long as it has some actual money

40
Section 157 (6)
41
Section 268 (3) [Cap 16 R.E. 2002]
42
Section 268 (2) [Cap 16 R.E. 2002]
43
R v Ndesario (1969) E.A. 257
44
(1969) E.A. 257
45
(1974) EA 293
value for some person or persons. In England, a bank note which is not legal tender had
been held not to be subject of an indictment for stealing.46

In R v Kambengwa47 accused was charged with theft by public servant. The prosecution
stated that a bonnet stand was missing from a motor vehicle, and that accused was seen
some days later using it as a walking stick. Accused answered the charge by saying “It is
true.” When asked if there were special circumstances which might warrant leniency
under the Minimum Sentences Act, he stated that he had not know that the bonnet stand
was of any use, and that he had taken it to use as a stick. The court held that in a
prosecution for larceny, it is irrelevant that the property taken may be of no value, or that
the owner may intend no further use for it. However, the conviction was quashed in that
the “plea of guilty” was equivocal, since the gist of accused’s position was that the bonnet
stand had been abandoned (mistake of fact)

1.2 Theft by persons having an interest in the thing stolen

When a person takes or converts anything capable of being stolen under such
circumstances as would otherwise amount to theft, it is immaterial that he himself has a
special property or interest therein or that he himself is the owner of the thing, taken or
converted subject to some special property or interest of some other person therein, or
that he is lessee of the thing, that he himself is one of two or more joint owners of the
thing, or that he is a director or officer of a corporation or company or society owning it. 48
In R. v. Samweli,49 the accused was a member of a Kijiji cha Ujamaa, and was given by
the chairman Shs. 100/= to buy a cow to be slaughtered for the Kijiji. The accused did not
buy the cow nor did he return the money. The trial magistrate ruled that a case had not
been made out in that the accused, being a member of the Kijiji, was a general owner of
the money and had a claim of right; that the remedy for recovering the money was civil
rather than criminal. He relied on the definition of theft in Section 258 (1) of the Penal
Code and it is – “A person who fraudulently and without a claim of right takes anything
capable of being stolen or fraudulently converts to the use of any person other than the

46
R. v. Clark (1810), Russ. and Ry. 181 C.C.R
47
(1968) HCD 333
48
Section 263 [Cap 16 R.E. 2002]
49
[1972] H.C.D.110
general or special owner thereof, anything capable of being stolen, is said to steal that
thing. In the High Court, Bramble J, stated:

Without going into the merits of the argument that the respondent was
general owner I would draw attention to section 263 of the Penal Code
which reads: ‘When any person takes or converts anything capable of being
stolen, under such circumstances as would otherwise amount to theft, it is
immaterial that he himself has a special property or interest therein, or that
he himself is the owner of the thing taken or converted subject to some
special property or interest of some other person therein, or that he is one of
two or mere joint owners of the thing etc.’ There was little evidence from
which the interest of the accused in the Shs. 100/= could be positively
inferred and if anything could be inferred it is that he was a joint owner
with other members of the Kijiji and this brings the matter squarely within
the provision of section 263 quoted above.”

1.3 Stealing by persons employed in the public service

Section 270 of the Penal Code requires that an accused be employed in the public service
at the time he commits the offence and that the thing stolen be the property of the
Republic, or came into his possession by virtue of his employment. In Mikidadi Abdullah
v. R,50 the appellant was convicted on two counts of stealing by a public servant under
sections 265 and 270 of the Penal Code and obtaining money by false pretences under
section 302 of the Penal Code. The court found that as the money belonged to the Prison
Staff Club, not to the Government, and therefore the offence did not fall within section
270 of the Penal Code. Conviction of simple theft under section 265 was upheld.

To convict under section 270, the stolen property must have been received on behalf of
the employer, and that prima facie evidence that the appellant is a servant of the
administration without further proof that he received money in the course of his
employment, all short of discharging the burden of proof of the offence. The prosecution
must prove the fact of employment beyond reasonable doubt, although there may be no

50
[1970] H.C.D. 225.
failure of justice by the prosecution not offering formal evidence of employment. In
Rajabu Mbaruku v. R,51 the appellant, being a person employed as a motor driver by the
East African Railways and Harbours Administration, stole money the property of his
employers which came into his possession by virtue of his employment. The prosecution
did not offer formal evidence of employment but a booking clerk employed by the
administration gave evidence that on April 3, 1962, he was on duty at the Korogwe
Station and that “a railway bus left Korogwe for Tanga” driven by the appellant. The
clerk further stated that the appellant’s orders were to carry the Morogoro passengers on
to Tanga and that he had no instructions to pick up fresh passengers. The trial magistrate
did not deal specifically with the question of employment and made no finding of fact
that the appellant was employed by the administration, but held that the evidence prima
facie showed that the appellant was the servant of the administration. The main grounds
of appeal were that the prosecution had not proved that the appellant was employed by
the administration, nor that the appellant was acting in the course of his employment, nor
that the appellant had authority to receive money for the administration nor that the
appellant did steal the money referred to in the charge. The Court held, inter alia, that the
prosecution must prove the fact of employment beyond reasonable doubt but no failure of
justice had resulted by the prosecution not offering formal evidence of employment (the
booking clerk’s evidence left no doubt that the appellant was an employee of the
administration). The appellant in picking up passengers deviated from his master’s
instructions not to pick up passengers; he was not guilty of stealing by a person employed
in the public service because picking up the passengers was in breach of his duty and the
money obtained from the passengers was not therefore received by virtue of his
employment. (R. v. Snowley (1830), 4 C. & P. 390 followed).

However, the decision of Spry, J in Rajabu Mbaruku has been viewed as applying
“narrow interpretation” of the law. In Yesaya Gweseko v R,52 the appellant, a chief prison
officer, made out local purchase orders for special food. He then cashed these orders
through one Lyimo, a shopkeeper, allegedly to buy high grade food for Arab detainees.
The orders with requisite bills and authorisation were later forwarded by the appellant to

51
[1962] E. A. 669.
52
[1970] 1 EA 667
the Ministry of Home Affairs in Dar es Salaam and Lyimo was paid by cheque in due
course. The trial magistrate found that the appellant had pocketed the monies he received
from Lyimo and that the names of the detainees mentioned in the orders were fictitious.
He convicted the appellant of forgery but acquitted him of stealing holding that the
appellant did not receive monies from Lyimo on behalf of his employer the Government.
The appellant appealed against his conviction of forgery and the Republic cross-appealed
against the acquittal of stealing.

In allowing the appeal by the Republic, Biron, J stated at page 671:

...In any event, as sufficiently indicated, I am not persuaded that the

narrow construction put on the expression “by virtue of his employment”
by the English authorities should be followed in this country. Accordingly
with respect, I must differ from the decision of Spry, J., and hold that in the
circumstances of this case, the appellant received the monies by virtue of
his employment as a prison officer, that is, a servant of the Government.
He should, therefore, have been convicted of stealing as a Government
servant, contrary to ss. 265 and 270 of the Penal Code, as charged.

To recapitulate, the appellant’s appeal is dismissed in its entirety, as the

sentences imposed, which incidentally have, I am informed, been served,
cannot by any stretch be regarded as excessive. The appeal of the Republic
is allowed, and convictions are formally entered on the three counts of
stealing by a person employed in the public service, as charged.

In Donald William Ibrahim v. R,53 the accused was charged with and convicted of
fraudulent false accounting and stealing by a person employed in the public service c/s
317 (c), 265 and 270 of the Penal Code. The charge in count one was that the accused did
during the period of August and September, 1969 with intent to defraud, omit the entry of
a receipt for Shs. 100/= in the remand prisoner’s register. The second count was that the
accused stole Shs. 100/= the property of a remand prisoner, which came into his
possession by virtue of his employment. At the time the alleged offences were committed
the accused was employed as a prison officer in Isanga Prison and was in charge of the

53
[1971] H.C.D 59
admission section of the prison. The judge refused to follow the narrow interpretation of
the phrase by virtue of his employment” by Spry J. (as he then was) in Rajabu Mbaruku.
The Court affirmed the reasoning in Yesaya Gwaseko that the decision in Rajabu’s case
was what it was because the learned Judge felt bound by English decision regarding the
interpretation of the phrase by virtue of his employment” and was fortified in his decision
by the language of section 4 of our Penal Code at that time. Our Penal Code is no longer
interpreted “in accordance with the principles of legal interpretation obtaining in
England.” Section 3 of Act No. 26/1971 is to the effect that the court in construing the
provisions of the Penal Code will be guided by the principles of natural justice. In the
Donald William it was found, there was no dispute whatsoever that the appellant was a
person employed in the public service when he stole the shillings 100/= Equally there
was no doubt at all that he received the said money by virtue of his employment as a
prison officer, that is, a servant of the Government.

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 authorization.54

1.4 Stealing by clerks and servants

271. 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 the account of his employer, he
is liable to imprisonment for ten years.

1.5 Stealing by directors or officers of companies

272.
If the offender is a director or officer of a corporation or company and the thing stolen is
the property of the corporation or company, he is liable to imprisonment for fourteen
years.

54
Geofrey Buyombe v. R, (1968) H.C. 373
1.6 Stealing by agent

In Levi Nyoro v. R,55 the appellant, who was an assistant divisional executive officer,
received sums of money totaling Shs. 1,355/60 from three persons in order to change
them into new currency. But instead of changing the money he uses it for his own
purposes. It was held that the combined effect of s. 265 and s. 273(b) of the Penal Code is
to make it an offence if any property which has been entrusted to another for him to retain
in safe custody or to apply, pay or deliver for any purpose or to any person the same or
any part thereof or any proceeds thereof, is stolen, the maximum penalty for which is
imprisonment for seven years. Section 260 of the Penal Code provides inter alia that
when a person receives any money with a direction that such money shall be applied to
any purpose or paid to any person specified in the direction, such money is deemed to be
the property of the person from whom it was received until the direction has been
complied with. The appellant received various sums of money from the respective
complainants with a direction to change them into new currency. He did not do so, and
his acts fall within the definition of theft as defined by section 258(c) of the Penal Code.

1.7 Conversion not amounting to theft:

Where conversion does not amount to theft, a person can still be guilty of the offence as
provided by section 284 of the penal code. A person is said to convert a thing if he
intentionally does any act in relation to it which is inconsistent with the owner’s right.
The section provides that:

any person who unlawfully and without colour of right, but not
as to be guilty of theft, takes or converts to his own 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

Conversion not amounting to theft may occur where a person who initially was in lawful
possession of his employer’s vehicle, subsequently does any act in relation to it which is

55
[1969] H.C.D.73
inconsistent with the owner’s right, although without intent to deprive the owner
permanently of the vehicle.56

In R. v. Burns,57 the accused, a police officer, took a government vehicle which was on
charge to his police station with the driver to Nairobi and returned a day later. He had no
authority and would not have been given authority to take the vehicle if he had asked for
it. He was charged with the unlawful use of the vehicle contrary to s. 289 of the Penal
Code and was convicted on his own plea. It was held that the use of the vehicle by the
accused was unlawful and without colour of right; he deprived his police station of the
use of the vehicle for two days and his conduct was inconsistent with the owner’s right
and constituted conversion. Where a servant who initially is in lawful possession of his
employer’s vehicle uses that vehicle for a private frolic, the question of whether he has
“taken” the vehicle so as to be guilty of conversion not amounting to theft depends in part
on whether he has completed his day’s work with the vehicle before using it for his own
purpose. The servant may be said to have “converted” a vehicle so as to be guilty of
conversion not amounting to theft even though initially in lawful possession of the
vehicle, if he subsequently does any act in relation to it which is inconsistent with the
owner’s right, although without intent to deprive the owner permanently of the vehicle.58

In Laurence Maliki v. R,59 the appellant was tried on a charge containing two counts, one
of them being conversion not amounting to hteft c/s 284 of the Penal Code. The appellant
was employed as a driver by M/S Tiger Ltd., a Motor Transport Company at Dar es
Salaam. On the 18th April 1971, he was instructed to drive the vehicle on an errand to the
office of Tanania Zambia Road Services Ltd., Ubungo, to collect certain documents for
his employers, Ubungo being 7 miles from the city centre. The Appellant left with the
vehicle but was not seen again until after few days later when he showed up to his
employer’s office and reported that he was involved in an accident at Kibaha in which the
56
Meliki v R (1973) LRT n 12
57
[1958] E. A. 142ntly does any act in relation to it which is inconsistent with the owner’s right,
although without intent to dprive the owner permanently of the vehicle.
58
Laurence Maliki v. R [1973] L.R.T. no. 12.
59
[1973] L.R.T. no. 12.
vehicle capsized and was completely wrecked and a passenger travelling in the vehicle
was killed. Kibaha is about 16 miles beyond Ubungo. Upholding the conviction,
Onyiuke, J. stated:

I find that the appellant left Ubungo before 7 p.m that that day.
The position then was that when the appellant was told by TZBS
Ubungo to return the next day, his assignment for the day was
finished. He could reasonably have stayed at Ubungo or
returned the car to the Company’s garage at Dar es Salaam or
possibly park the car at his house at Dar es Salaam for the night.
If he had taken the car to his house for the in order to travel back
to Ubungo the next day he might not have been regarded as
acting unreasonably even though he was not specially
authorized to do so. What did the appellant do: He took the car
to Princess Night Club where he remained till 12:30 a.m when
he drove off at that very late hour of the night to Kibaha which
was 23 miles from Dar es Salaam…. When he left Ubongo that
night it was his duty to return the vehicle to Dar es Salaam and
to park it for the night either in his house or at the Company’s
garage… His excursion to Kibaha at 12:30 a.m. was plainly a
taking within the meaning of Section 284. He could not pretend,
and it could not seriously be argued that he took the vehicle in
these circumstances lawfully or under any claim of right…
In the light of the foregoing it is clear that the question whether
or not a vehicle is in a person’s lawful custody before he starts
off an unauthorised journey is not the sole factor to consider in
determining whether he took the vehicle without the consent of
the owner. On this view, the facts of the case will justify the
conclusion that the appellant when he drove off from the
Princess Club, Dar es Salaam, to Kibaha that night had
completed his day’s work with the vehicle and that his action
 amounted to a fresh and separate taking of the vehicle within the
meaning of Section 284 of the Penal Code.

1.8 Theft and the doctrine of recent possession

The doctrine of recent possession is a rebuttable presumption of fact based upon the
finding of property recently stolen in possession of the receiver. Where recently stolen
property is found in possession of a person, the possessor of such property is deemed to
have either stolen it himself or received it knowing it to have been stolen or unlawfully
obtained unless he can give a reasonable explanation of innocent possession. To
constitute possession, it is sufficient if possession has passed to the receiver. It is
immaterial, whether ownership passes.60

There is no general principle for determining the period of time which is recent enough to
justify the application of the doctrine of recent possession,61 and all will depend on the
nature of the property stolen, its value, or any other facts concerning the property or the
circumstances of its being stolen. In Lucas Mbanda v. R,62 the appellant was convicted of
housebreaking and stealing contrary to sections 294(1) and 265 of the Penal Code. On the
morning of the 20th March, 1971 the house of the complainant was broken into while he
was at work and bed sheets and clothes stolen there from to the value of approximately
Shs. 2,000/=. It was undisputed also that on the 27th July, 1971 the complainant saw the
appellant wearing what appeared as some of his stolen clothes. He followed him
stealthily and thereby came to know where he was staying in the township. A couple of
days later he took P.W.3 a police officer to such place. That transpired to be the house of
P.W.2 with whom the appellant was staying. In that house they found one bed-sheet, 2
trousers, 3 shirts, a neck tie and a jacket all of which the complainant recognised as
forming part of his stolen things. However, the appellant contended the things were his
and he duly produced receipts. It was not disputed that the appellant had those things
when he moved to stay with the complainant on the 30 th March, 1971, ten days after the
offences were committed. In view of this and having regard to the fact that the things
60
Michael Mhuto v. R [1975] LRT 18
61
DPP v Joachim Komba (1984) TLR 213
62
(1972) H.C.D. n. 214
comprised most of the complainant’s stolen property, the court was satisfied that the
doctrine of recent possession was properly applied so as to find the appellant the
perpetrator of the offence charged.

An inference under the doctrine of recent possession is not limited to theft or the related
offences. It may be drawn to uphold any offence however penal it may be, including the
offence of murder.63 In Manazo Mandundu and Another v R,64 the appellants, were
charged with and convicted of the offence of murder, appealed against both conviction
and sentence. The trial court based its conviction on the fact that the appellants were
found in possession of stolen property a few hours after the watchman of a shop was
killed. And, it was established that the property was stolen from the shop which the
watchman was guarding. Counsel for appellants charged on appeal that recent possession
of stolen property could not alone, in the circumstances, ground a conviction of murder.
The court held that to be a fit case for invoking the doctrine of recent possession to
support not only the shop breaking and theft but also the murder - that possession was
very recent, considering that the distance from the burgled shop to Chigugu, a place
where the accused was found with stolen articles, was 28 miles and it would take 5 hours
to travel by taking a short cut path or road. The court further stated that to be found at
10.00 am. the following day having already arrived at Chigugu meant that there was no
time lost by the possessors of goods in running away from the scene of crime.

It is essential for a proper application of the doctrine of recent possession, that the stolen
thing in the possession of the accused must have a reference to the charge laid against the
accused. That is to say that the presumption of guilt can only arise where there is cogent
proof that the stolen thing possessed by the accused is the one that was stolen during the
commission of the offence charged, and, it is the prosecution who assumes the burden of
such proof, and the fact that the accused does not claim to be the owner of the property
does not relieve the prosecution of that obligation. 65 In George Mingwe v. R,66 the house
of the complainant was broken into on 26th February 1987, and two shirts, a pair of shoes,
a belt, a pair of trousers and other articles were stolen. The thief, or thieves, were
63
DPP v Joachim Komba (1984) TLR 213
64
[1990] TLR 92
65
Ally Bakari & Pili Bakari v R 1992 TLR 10
66
[1989] TLR. 10
unknown. On 23rd March 1987 the appellant was seen by the complainant wearing a
shirt, a belt and a pair of shoes which the latter claimed to be his. He was arraigned and
convicted of house breaking and theft c/ss 294(4) and 265 of the Penal Code. Adducing
evidence in the District Court, the complainant neither described by make or any other
mark the articles which he claimed to be his, but claimed to recognise the shirt by its
colour and stripes; the belt and the shoes by colour. The court held that the applicability
of the doctrine of recent possession depends on the type of the stolen property being
identified.