The Republic v John William Jones

High Court, Appellate Side, Nairobi 22nd November 1966

Sir John Ainley CJ & Miles J

Theft - fraudulent taking - no intent to deprive owner permanently - employee taking cash from employer - replacing cash with personal cheques - cheques honoured by bank - using money at the will of the person taking it – whether cheques equivalent to cash - meaning of “money” – Penal Code (cap 63), sections 4, 268(2)(e).

Theft - stealing by person in public service - public service – person employed by East African Railways and Harbours Administration – Penal Code (cap 63), section 280.

The respondent was employed as a clerk by the East African Railways and Harbours Administration. He was appointed to that office by a public commission or board. A few days before 24th December 1965, he was paid £1413 by the administration and he was at that time, due to receive several thousand pounds compensation for loss of office. On 24^th December, however, contrary to regulations, he took Shs 3680 belonging to the administration from a safe and put his own cheque for that amount in its place. At that time there were insufficient funds in his bank account to meet the cheque; but his superior officer later indicated that he would then have had no hesitation in accepting a cheque from the respondent for that amount. In February 1966, the respondent took Shs 400 from the administration’s safe and replaced it with his own cheque for that amount; on this occasion there were sufficient funds in his bank account to meet the cheque. When the two cheques were later presented for payment, they were both honoured. The respondent was charged with stealing money which had come into his possession by virtue of his employment in the public service, contrary to section 280 of the Penal Code. At his trial, a plea of no case to answer was made on his behalf at the conclusion of the case for the prosecution. The magistrate, finding that the prosecution had failed to show that the respondent had taken the money with an intent to deprive the administration of it permanently, dismissed the charge. The prosecution appealed.

Held:

Remitting the case to the magistrate, (1) that on a charge of theft it was necessary to prove a fraudulent taking or conversion without a claim of right, and a person was deemed to have taken or converted money fraudulently if he did so without a claim or right and with an intent to use it at his will, even if he intended afterwards to repay the amount to the owner.

Dictum of Lord Goddard CJ in R v Williams [1953] 1 All ER 1068, 1070, CCA, not applied.

(2)That even though the definition of “money” in section 4 of the Penal

Code included cheques, the respondent could not avoid liability for theft merely by placing his cheques in the safe in exchange for the cash which he had taken.

(3)That the respondent could properly be charged with the offence of stealing by someone in the public service contrary to section 280 of the Penal Code as he held an office in the appointment of a public commission or board and therefore fell within paragraph (a) of the definition of “person employed in the public service” in section 4 of the Penal Code.

Cases referred to in judgment:

Gaciatta (Abraham Lucky) v The Republic [1966] EA 277.

R v Williams [1953] 1 QB 660, [1953] 2 WLR 937, [1953] 1 All ER 1068, CCA.

Appeal

The prosecution appealed (Criminal Appeal No 1323 of 1966) from a ruling by the Resident Magistrate, Nairobi, that the respondent, John William Jones, had no case to answer on a charge of stealing money which came into his possession in the course of his employment in the public service. The facts are set out in the judgment of the court.

Brookes for the Republic.

R Wira for the Respondent.

Note. When the case was heard (criminal case 839 of 1966 of the Resident Magistrate’s Court at Nairobi), the magistrate found the respondent guilty on both counts and fined him a total of £200. He appealed to the High Court against conviction and sentence (criminal appeal 1323 of 1966). In the appeal against conviction, reliance was placed principally on the absence of the word “cash” in the charges as laid. On 14th April 1967, the High Court (Rudd and Trevelyan JJ) applying Menzour Ahmed s/o Shekh Soleh Mohamed v R [1957] EA 386 held that the word “cash” was not required in the charges and dismissed the appeal against conviction. In view of all the circumstances in the case, the High Court on the appeal against sentence substituted an order for absolute discharge for the fines imposed by the magistrate – Editor.