This offence is established under section 302 of the Penal Code. This section should be read together with section 301 of the Penal Code. To constitute this offence the accused must:
1) Make a false pretence.
2) With intent to defraud.
3) Obtained from that other person something capable of being stolen.
4) Induces that other person to deliver to another person something capable of being stolen.
In YUSUFU OMARI & ANOTHER V. R. [1964] E.A. 162, the court stated that the offence under section 302 is committed;
1) By a person who by false pretence and with intent to defraud, obtains from any other person anything capable of being stolen.
2) By a person who in similar circumstances induces any other person to deliver to any other person any such thing.
Obtaining by false pretences to some extent has been confused with stealing: In MANSUKU MOHAN MANJI V. R. (1968) H.C.D. No. 51, the accused altered a check so that it read 400/=. He was convicted of stealing government property. The court held that “this is a case of obtaining money by false pretences, not of theft”
For The Offence To Be Committed The Possession Must Not Be Custodial, Should Be Ownership or Possession With Authority To Pass Ownership or Title
In TOM ABRAHAM SALAMA MADHARA V. R. (1968) H.C.D. No. 75, the accused Area Secretary went to one SHABANI, a Divisional Executive Officer, who was storing at his house two elephant tusks which had been shot by a Game Warden in the course of his duties. Accused, who was an Area Secretary, brought two smaller tusks to SHABANI’s house and told him that he had been authorized by the Game Officer to exchange them for the larger ones. The exchange was effected.
“…The court held that the possession of the tusks by SHABANI was merely custodial, therefore, the taking of them by accused constituted theft and not obtaining by false pretences…”
In order for the offence to be committed, the complainant is duty bound to show that he was made to part with the goods as a result of the accused’s false pretence that operated on him at the time.
In AUGUSTINO BROWN CHANAFI V. R. (1968) H.C.D. No. 73, the accused was convicted of forgery and obtaining from the complainant upon a note which he represented to be a valid interim insurance cover note, evidently with the intention of using part of the money to obtain a genuine insurance cover for the complainant’s vehicle.
“…It was held that evidence supports a finding of “intent to defraud.”…
In the case of HUSSEIN T. KABEKE AND ANOTHER V. R. [1980] T.L.R. 267, the court of Appeal held that in making payment by check the necessary ingredient of false pretence under section 302 is established if at the time of issuing a check on reasonable grounds of business the check reaches his bank of payment.
For the offence to be committed the complainant must intend to part with ownership of the thing or else it will be mere theft. Here voluntary transfer of possession from one person to another is necessary.
The word “deliver” as it appears under section 302 refers voluntary transfer ofpossession from one person to another. That means that the aspects of voluntariness on the part of the complainant have a role to play in order to effect the offence of obtaining goods by false pretence.
In the case of SAFIAN SHABANI V. R. (1968) H.C.D. No. 281, the accused was convicted of stealing postal matters. The facts were that the accused obtained 30/= by presenting a stolen post office saving book.
“…The High Court held that the money was not stolen but was obtained by false pretences since the post master voluntarily paid the money thinking that the accused was the owner of the saving book…”
In PAULO KULOLA V. R. (1968) H.C.D. No. 332, Accused met two persons in a bus station, and convinced them that they should hide the money they were carrying, last it be taken by customs officials. He persuaded them to give him Tshs. 20/- and 50/- respectively, whereupon he purchased envelopes in which he suggested he would put the money. He instead put paper in the envelopes and proceeded to show them how to hide the envelopes on their persons. Accused was convicted of obtaining money by false pretences.
“…The High Court held that since the victims at no time intended to part with more than the temporary possession of their money, the offence committed was not obtaining money by false pretences, but larceny by trick…”
In ISSA NTAKA V. R. (1968) H.C.D. No. 374, it was stated that the most intelligent distinction between larceny by trick and obtaining by false pretences is that in the former the person parting with the property intends to part with the possession only, not with the property, while in the later, he intended to part with both.
Obtaining Credit by False Pretences
According to section 305 TPC, the prosecution must prove:
1) The incurring of date or liability.
2) By false pretences.
3) An intent to defraud.
E.g. when a man goes to a pub and orders a drink and then fails to pay the offence committed is obtaining credit by false pretences.
In T.C.HARBY V. (1968) H.C.D. No. 156, the accused was convicted on four (4) counts of obtaining credit by false pretences c/s 305(1) T.P.C. 1) appellant had his private automobile repaired on two occasions. 3) Had chartered an airplane on another occasion. 4) Had purchased to bottles of perfumes. In all cases signing invoices made out to his employer-the New Arusha Hotel. He had no authority from the hotel.
In order to obtain a conviction under section 305(1), three elements of the offence must be proved:
1) The incurring of a debt or liability.
2) By false pretences.
3) An Intent to defraud.
