Achieng vs Republic (1972)

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Achieng v Republic [1972] 1 EA 37 (CAN)

The appellant was convicted on six counts of stealing and on a further count of stealing a cheque.

The appellant was the Permanent Secretary of the Ministry of Tourism and Wild Life and an ex officio chairman of the Central Committee of the Fishermen’s Loan Scheme. He had been given some imprest but failed to account for it. An imprest is a sum of money advanced to a person for a particular purpose.

Over a period of 11 months, the accused drew a total of Shs. 76,500/- from the imprest account of a Loan Scheme.

He was charged with theft buy servant and his defense was that he had no intention to defraud treasury of the money and he intended to account for it.He alleged that he had lawfully distributed some of the monies and that he kept the remaining balance in his custody with the intention of paying it back.

The prosecution relied on Section 268(2(e) of the Penal Code and in particular on subs. 2 which provides “the fraudulent intent to steal exists in the case of money where there is 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.”

The prosecution also adduced evidence of 6 previous occasions when the accused had taken money from the imprest account and never accounted for it. This rebutted his defense of lack of intention because an inference of guilt could be drawn.

The question arose of whether the evidence of previous occurrences was admissible. The court held it was admissible because it rebutted his defense of lack of intention to commit the alleged theft.