Yusuf v Kenya

• Jurisdiction: Kenya
• Date: 26 November 1974
• Court: Court of Appeal (Kenya)

Kenya, Court of Appeal.

(Spry Ag. P., Law Ag. V.-P and Musoke J.A.)

Yusuf

and

Republic

Jurisdiction In general Territorial jurisdiction Territorial limits of jurisdiction Acceptance of Tanzanian currency in Kenya for carriage to and payment in Tanzania Receipts prepared at the time of acceptance of the money not returned Money not paid in Tanzania Charge of stealing by a servant in Kenya Whether courts in Kenya have jurisdiction to try the offence The law of Kenya

Summary: The facts:Yusuf was an employee of the East African Airways Corporation. He was given some money in Tanzanian currency at Nairobi Airport in Kenya to take to Dar es Salaam in Tanzania and there give it to the station accountant of the Airways Corporation. At the time of the acceptance of the money in Kenya a receipt was prepared in duplicate signed by him and Okech, the person who gave him the money. Yusuf took both copies of the receipt to have them checked by another officer after which he was supposed to return one copy to Okech. Yusuf neither returned the receipt nor paid the money to the accountant in Tanzania. Yusuf was charged in Kenya with stealing by a servant, contrary to Section 281 of the Penal Code. He contended that the offence, if any, had been committed in Tanzania and the Kenya court therefore had no jurisdiction. Section 6 of the Penal Code provided that the Kenya courts would have jurisdiction in the case of offences against the Code where the act amounting to the offence was performed partly within and partly beyond the jurisdiction.

Held:(1) The act of taking away both copies of the receipt was carried out to prepare for the theft, or at least to create the opportunity for theft, and was a sufficient overt act within Kenya to give the Kenya courts jurisdiction.

(2) Failure to account is most commonly the essence of the offence of stealing by a servant. Yusuf was accountable in Kenya for the payment in Tanzania and the Kenya courts had jurisdiction.

The following is the text of the judgment of the Court:

26 November 1974. The considered majority judgment of the court was read by SPRY, Ag. P.: The appellant was convicted in the court of the resident magistrate at Nairobi of stealing by a servant contrary to s. 281 of the Penal Code. We would remark in passing that the charge should have referred to ss. 268 and 281.

The charge alleged that the appellant, being a servant of East African Airways Corporation, stole a sum of Shs. 36,430/-, the property of the Corporation, on 31 January 1973, at Nairobi Airport.

The facts found by the trial magistrate were that on 31 January 1973, the appellant was handed the money, to Tanzania currency, by a Mr. Okech to take to Dar es Salaam, where he was to hand it to the station accountant of the Corporation there. Okech prepared a receipt in duplicate, which was signed by him and by the appellant. (This receipt was sometimes referred to as an agreement.) The appellant was then supposed to have the money and the receipt checked by another officer and then return one copy of the receipt to Okech. This he failed to do. The...