Katiti, J.: Msafiri s/o Kulindwa, herein the appellant, who was charged severally on counts (1) (2), with 4th B accused on count No. 3, on 4th count with 3rd accused, and on 5th count with 2nd accused, as first accused, was his own witness to his conviction as charged. The appellant, to his chagrin saw his co-accuseds walk out of the court scot-free on acquittal. Aggrieved, the appellant has appealed against conviction.
C Representing the appellant was a Mwanza based advocate Mr. Butambala, while the Republic was represented by a learned State Attorney Mr. Swai. The two counsels demonstrated their professional mettle in their arguments whether or not, the appellant, who was alleged to have uttered the alleged false D routing slips to RTC shop managers, falsely pretending the same had come from the Sales Managers, but paid for the goods listed thereon, committed the offence under the provisions of section 302 of the Penal Code Cap. 16 of the Laws. The two counsels argued with volcanic force of assumption that, intent to Edefraud, as an element of the offence under section 302 of the Penal Code Cap. 16 was incorporated, as it should have been in the charges, the appellant who was unrepresented, was facing at his trial.
I have with unmitigated anxiety first scrutinised the charged counts - all the counts-whose sample F representative phraseology of their particulars of offence, runs thus, inter alia, and I quote:
... did present a false Routing Slip to the Shop Manager RTC Shop No. 12, pretending that the routing slip was issued G to him by RTC District Sales Manager to buy I bag of sugar, (Ilula soap, khangas) whereas infact, it was not true.
The above particulars juxtaposed with the wording of section 302 of the Penal Code, will show or reveal, that, the words "with intent to defraud", that virtually control section 302 of the Penal Code, are Hsignificantly absent in the particulars of offences charged, and above reproduced.
What then, is the effect of this omission? I would imagine that no conjurations or incantations need be resorted to, to realise that the offence under the provisions of section 302 of the Penal Code Cap. 16 - "an I intent to defraud" is an essential ingredient of the offence of obtaining by false pretences, and it is therefore essential
that such intent to defraud must be alleged, or averred in the particulars of offence in a count charging that A very offence. It follows therefore, that where the charge falls under section 302 of the Penal Code Cap. 16 an omission to incorporate, or allege an intent to defraud in the particulars of that offence, renders the said charge defective. B
Whether or not such defect is curable, which is a question on heels I can do no better than apply the wisdom in the holding in a similar case, Terrah Mukindia v R. [1966] E.A. 425 at page 429, where it was held thus:
Our view is that a charge of false pretences which does not include an averment that, the pretence was made with C intent to defraud is a charge, which discloses no offence at law, and is not merely an irregular or defective charge, which can be put right by application of section 382 of the Criminal Procedure Code. D
While I make necessary concession that, the above case did obtain in Kenya, and has persuasive value, our legal position on the same is not different. I derive comfort in so boldly saying from the case - Edward E Opiyo s/o Anguro v. R. [1968] H.C.D. No. 55, in which the High Court quashing the relevant conviction, had this to hold, and I quote:
... and absence of the words "with intent to defraud" are fatal to conviction, since the accused may not have F understood the charge against him. The false pretence must be set out in the charge with sufficient certainty.
From the above, it is very clear that, the charges did not contain averment that, there was intent to defraud, G and as such, no offences, or offence known to section 302, or any other section in the Penal Code were charged. That means, the convictions were unfortunately misconvieved. The same said convictions are hereby and therefore quashed, and sentences set aside. The appellant to be set free, unless he has H otherwise offended the law.
Appeal allowed. I
A