Sisya, J.: This appeal is by the Director of Public Prosecutions against the acquittal by the learned District Magistrate, Muheza, of the respondent, Charles Kiegezo, after his trial on a charge of theft G by a person employed in the public service. He, respondent, was alleged to have stolen cash shs.55,044/= property of his employer, the Ngomeni Kamba Factory.
It is common ground that the respondent was employed at Ngomeni Kamba Factory from 1/7/78 to 22/9/80 when he was dismissed from service. Although it is conceded, as indeed it must, that H therefore he was a servant of the said Ngomeni Kamba Factory the evidence, however, is dead silent as to why he was labelled in charge sheet as a public servant. The term a person employed in the public service is defined by the law, see Section 5 of the Penal Code. By reason thereof I am positive I that an employee of, say, Amboni
A Plastics Factory does not qualify for that term. The point I am driving at is that evidence ought to have been adduced in this case by a competent witness to establish that the respondent was, throughout the relevant period, a person employed in the public service. For purposes of the instant B matter this is mere academic exercise but the learned Public Prosecutor who conducted this case should, however, take note for his future guidance.
Getting back to the facts of the case, it is likewise common ground that the respondent started as an assistant Accountant and from 24/11/78 to the date of his dismissal he became cashier. His duties as Ccashier included receipt of all revenue or payments made to the factory and to effect payments for and on behalf of the factory. Every payment to the factory was to be acknowledged by issuance of an official receipt and every payment by the factory was to be effected on or evidenced by a D payment voucher duly authorised. It is alleged in the charge that the respondent stole the money between 24th day of November, 1978, and 27th day of January, 1979. The little that can be gathered from the evidence, however, tends to suggest that there were separate and distinct takings and on different dates from those shown in the charge sheet. In law, each distinct and separate taking or E fraudulent conversion constitutes an offence and each offence must be charged separately, which also means in separate counts albeit in the same charge sheet. In this instance by conglomerating all the supposed distinct takings in a single count the person who framed the charge erred. I do not F propose to say anything more on this point.
With these undisputed facts in the background one would have expected the person who checked the respondent's accounts and discovered the so-called loss to have had an easy task to perform in G so doing as well as in explaining the same to those concerned, including the Courts of law. The man who checked the respondent's accounts and discovered the alleged loss was one Yohana Mshami (PW2), who described himself as the Chief Accountant at Ngomeni Kamba Factory. Contrary to one's expectation Mshami's evidence in this case is not only confusing but it is, itself, H also confused. It is, by far, too much below the standard required of a man of his status. As Chief Accountant, and, more importantly, as the person, as aforesaid, who checked the accounts and discovered the alleged theft, he is a principal witness in the case. I will produce samples from his I text in order to demonstrate the type of his evidence. Fairly early in his evidence-in-chief Mshami is recorded to have said, and I quote from the record of proceedings:
"On 24/11/78 he (i.e. respondent) was charged to become a cashier..... The accused continued with this work A to 27/1/79 ..... When the accused handed the cashier duties to the new cashier it was detected that there was shortage of cash, shs.45,941/25. Again we detected another loss in his cash book which all amounted to shs.55,044/20. Cash short was shs.45,941/25 as follows: B
On the handover on 24/11/78 the former cashier had a cash short of sh.19,279/75 which the accused inherited. This sum ought to be deducted from the actual loss attributed to the accused. Thus the C figure drops to shs.26,661/50 which was actual loss by the accused.
It is not known what Mshami did with the figure of shs.55,044/20 which he, earlier on, had said was the total amount of the sum lost. In his attempt to explain how the amount in the charge was arrived D at Mshami went on to say, and, again, I quote from the record of proceedings:
In December, 1978, the accused paid total cash shs.144,236/20 which had no supporting documents. At the E same time he entered revenue which had no supporting document which amounted to shs.114,406/70 the difference was shs.29,829/40. In January, 1981 the accused paid a total amount of shs.120,185/= and he F entered revenue of shs.95,829/55, difference was shs.34,355/45. There was also difference of shs.13,000/= in six days he worked from 24/11/78 - 30/11/78. In this period he paid total amount of shs.25,603/85, the revenue was shs.12,574/05, the difference was shs.13,029/80. G
It seems Mshami took the difference between the monthly income and the monthly expenditure as the amount 'stolen' by the respondent in that month. I must admit that I have failed to comprehend the rationale behind this. Anyhow, the total amount (i.e. shs.29,829/10 & shs.34,355/45 & H shs.13,029/30) is shs.77,214/65. He, i.e. Mshami, went on to say:
On checking, we detected that there were other payments effected without being recorded in the accused's I cash book. The amount paid by this way amounted to shs.21,208/95. Thus
A the whole difference outlined above minus this sum, the total cash paid unsupported is shs.56,006/60.
This is actually shs.77,214/65 minus shs.21,208/05. Mshami then added:-
B I cannot tell how the accused managed to count money (for) which he had issued no receipt.
C Likewise, it also beats my comprehension how Mshami verified his figures without any documents. One is, thus, left in doubt as to whether the figures said to be of expenditure and even those said to be of revenue are correct and proper. Of equal significance is the fact that at no time or stage in his evidence did Mshami, or any other witness for that matter, swear that he physically D checked the cash and confirmed or verified the alleged deficit. This creates a lacuna in the Prosecution case which is very fundamental in that it goes deep to the root of the Prosecution case.
This flaw also explains why Mshami was very erratic in his figure of the alleged stolen sum. At one E stage in his evidence-in-chief Mshami fixed the figure at shs.103,862/60, "which the Accused stole." He went on to tell the Court that later, however, it was found that some of the payments made by the respondent were 'genuine'. By using his somewhat dubious calculations and F deductions Mshami then eventually settles on shs.55,044/=. This includes three alleged payments of shs.10,994/50, shs.3000/= and shs.7,200/= as per Exhs. PI, P2 and P6 made to him. I, however, hasten to point out that there is not even a grain of evidence to show that the said payments were, in fact, made to him, i.e. respondent.
G In short all that can be said about this matter is that it was a wangle right from the word go. It is clear from the evidence of Mshami that the accounts of the Factory were already in a mess when the respondent was told to take over but, on the evidence and material available, the worst that can be said about the respondent is that he made the said accounts even more hay wire. Criminally, I find H no sufficient evidence on which to found and sustain a conviction.
In the final result this appeal fails and it is hereby dismissed.
Appeal dismissed.
A
