Where it is proved that the property has been stolen and that very soon after the theft the defendant has been found in possession of the property, he may fairly be regarded as either the actual thief or else guilty receiver.
Before doctrine is revoked, proof must be given that:
1) The good in question has been stolen,
2) The theft should have taken place recently.
The doctrine of recent possession is a rebuttable presumption of fact based upon the finding of the property recently stolen in possession of the receiver. See the case of MICHAEL MHUTO V. R. 1975 L.R.T. No. 118.
Therefore where recent stolen property is found in possession of a person, the possessor of such property is deemed to have stolen or unlawful obtained unless he can give a reasonable explanation of innocent possession. Such presumption raises also a presumption of guilty connection with any further crime that accompanied theft.
This has been explained in the case of MANAZO MANDUNDU & ANOTHER V. R [1990] T.LR. 92. The appellants, charged with and convicted of the offence of murder, appealed against both conviction and sentence. The trial court based its conviction on the fact that the appellants were found in possession of stolen property a few hours after the watchman of a shop was killed. And, it was established that the property was stolen from the shop which the watchman was guarding. When arrested one of the appellants asked to be pardoned and the other said matters were becoming serious and later cried at the CCM office. Counsel for appellants charged on appeal that recent possession of stolen property could not alone, in the circumstances, ground a conviction of murder. The court held that:
1) The possession was very recent and that this fact cannot be ignored. The distance from the burgled shop to Chigugu is 28 miles and it takes 5 hours to travel by taking a short cut path or road. To be found at 10.00 am. The following day having already arrived at Chigugu means that there was no time lost by the possessors of goods in running away from the scene of crime.
2) In the circumstances it was not wrong to conclude that the appellants were also responsible for killing the deceased, and because we are satisfied that the killing was so as to effect the stealing we are of the view that it was quite proper to infer malice aforethought.
3)This is a fit case for invoking the doctrine of recent possession to support not only the shop breaking and theft but also the murder.
In the case of SAIDI MKUYU V. R. (1972) H.C.D. No. 41, the judge observed that where a person is found with a stolen radio two and half hours after a house breaking, even if no direct evidence can be given on the breaking, in the absence of a probable explanation he can be convicted of house breaking and stealing.
In D.P.P. V. JOACHIM KOMBA [1984] T.L.R. 312, The doctrine of recent possession provides that if a person is found in possession of recent stolen property and gives no explanation depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver.
At what time is near enough to be “recent” no general rule can be given for the period within which the presumption can operate will vary according to the article stolen. In the case of SEIF ALLY V. R. 1976 L.R.T. No. 55, in deciding whether the possession is recent or not, the nature of the property stolen must be taken into account, whether it be of a kind readily passes from hand to hand and the trade of occupation to which the accused belongs can all be taken into account.
In D.P.P. V. JOACHIM KOMBA [1984] T.L.R. 213, the respondent was originally charged with burglary. He was found in possession of a radio cassette which had been stolen some eight months earlier together with some household goods from complainant's house which had been burgled. The trial court acquitted the accused on the charge of burglary but convicted him of stealing and subsequently discharged him conditionally under section 38(1) TPC. D.P.P. appealed.
“… There is no general principle of determining the period of time, which is recent enough to justify the application of the doctrine of recent possession. In the circumstances of this case, eight months after the disappearance of the said stolen radio cassette is too long for the doctrine of recent possession to be invoked. Therefore he is guilty of receiving stolen property…”
In the case of NAFTAL s/o NGALYA V. R. 1976 L.R.T. No. 45, the appellant was charged and convicted of cattle theft. On 7.3.73 two herds of cattle were stolen. One herd was found two days later already slaughtered. On 21.7.73 the second herd was found in possession of the appellant, as he was about to sell it at KIGWE cattle market. On appeal:
“…In deciding whether possession is recent the court must have regard to the nature and value of the property. The period of four and a half months between the stealing of the herd of cattle and the finding of it in the possession of the accused entitled the court to invoke the doctrine of recent possession…”
In the case of WILLIAM MAZIKU V. R. (1972) H.C.D. No. 174, the court held that the doctrine of recent possession could be invoked to convict the appellant of burglary where the appellant has found in possession of stolen radio and clothes within three weeks after the burglary had been committed although he was arrested twenty-five months later.
However in the case of JAMES MALAWI V. R (1969) H.C.D. No. 172, it was held that four and half months period is not recent where the accused was found with the stolen radio which is a common article which can easily exchange hands.
In the case of IBRAHIM RAMADHAN V. R (1969) H.C.D. No. 218, the same court held that fort-three days were “recent” in a case of burglary where the accused was found with a stolen gun since a gun is not a thing which can easily change hands. The question of “recent possession” therefore, remains largely a question of fact where each case is to be decided on its own merits.
Receiving and Retaining Stolen Property or Unlawful Obtained
The offence of receiving and retaining stolen property or unlawful obtained are created under section 311 TPC. Receiving and retaining are different offences. In receiving it implies that at the time the accused received the property he knew that it had been stolen or otherwise unlawfully required. In retaining the implication is that at the time of the receipt the accused doesn’t know that the property was stolen or otherwise unlawfully acquired but discover this fact at some later . If he continues to keep such property after such discovery, then he is deemed to retain the property it is logical therefore, that a person can’t be charged with both receiving and retaining the same property.
In the case of MOPUYANI OLE NDOTOO & ANOTHER V. R. (1970) H.C.D. N0. 74, the six appellant were charged with receiving and retaining stolen cattle and were convicted of these offences. On appeal:
A charge of receiving stolen cattle is mutually distinct from a charge of retaining stolen cattle.
Receiving stolen cattle implies that at the time the property stolen was received the receiver did not know it was stolen property, but that sometime later he came to know that it was stolen property, and thus retain it in his possession. A person therefore can’t be both a receiver and a retainer at one and same time.
It is necessary for the prosecution to charge and prove that the receiver knew that the property had been obtained unlawfully.
In MASWEDA ADIGA V. R. [1992] T.L.R. 140, the court held that in order to prove a charge under section 311(1) TPC, it must be established that the accused received or retained the property in question and that he received or retained the same with guilty knowledge in the sense that he knew or had reason to believe that the same had been stolen or otherwise feloniously obtained or disposed off. Furthermore, the prosecution must prove:
1) Theft or obtaining by unlawful means.
2) Receipt of the stolen property by the accused person.
3) The accused’s guilty knowledge at the time of receipt.
It should be noted that on retaining, the same elements prevails, except that the guilty knowledge may exist after receipt.
In the case of MWANGI NJOROGE V. R. [1963] E.A. 624, the appellant was convicted of receiving or retaining stolen property. The evidence showed that when the appellant’s house was searched a large number of M & B Tablets were found in tins placed under the bed. The appellant argued that the tablets were not stolen but that they belonged to someone else and that he had bought them. In convicting the appellant, the magistrate held that having regard to the circumstances of the appellant’s purchase and possession of the tablets, they had been stolen and the appellant knew that they had been stolen. In allowing the appeal:
“… Where there is no direct proof of theft or of receiving goods knowing them to have been stolen, the ordinary rule of circumstantial evidence must be applied, namely, that the circumstances must be such as to convince any reasonable person that no other conclusion was reasonably possible. Since it was possible that the tablets had been concealed because the appellant had committed the minor offence of contravening the pharmacy and poison laws. Thus the magistrate was wrong in convicting the appellant of receiving stolen property…”
In another case of IDDI WAZILRI V. R. [1961] E.A. 246, there was strong circumstantial evidence of stealing leading to a finding of receiving stolen property. The appellant was convicted of receiving stolen property, namely four bags of coffee, but there was no direct to prove conclusively the theft or ownership of the stolen goods. He was selling coffee at a price well below the market price, and the bags were hidden in a maize field. When he saw the police he ran away. In dismissing the appeal:
“…The resident magistrate was right in finding that the circumstances in which the appellant was found in possession of the goods and the circumstances in which he attempted clandestinely to sell them and his subsequent denial of knowledge or possession pointed irresistibly to the receipt of the goods by the appellant knowing them to have been stolen…”
The person accused of receiving or retaining stolen property must be in actual possession of it. In SAID KIGOZI V. R. [1958] E.A. 1, the appellant was convicted of receiving a bicycle knowing it to have been stolen. The bicycle had been taken to the appellant for repairs and was found in his possession in a dismantled condition. The appellant had removed the small part which bears the number, and substituted another such part with a different number. It was argued on the appeal that the appellant didn’t have possession of the bicycle of the nature that must be proved to establish a charge of receiving. In receiving the appeal:
“…Although were manual possession of a stolen article, without having control of it doesn’t amount in possession in law, in this case the RM had considered this question and had rightly inferred from the evidence that the appellant had atleast joint possession and had, at least joint control over the article…”
Conveying or Being in Possession of Suspected Stolen Property
For section 312TPC to apply the person must have been detained by a police officer under section 25 CPA. Thus if a person is found in possession of or conveying in any manner anything, which may reasonably be suspected to have been stolen or unlawful acquired he may be charged with the offence of being in possession or conveying or has control over the property suspected to have been stolen or unlawful acquired.
For the purpose of this section “unlawful acquired”means acquired in circumstances which constitute a criminal offence under any written law. Read sections 312(2) (a-b) and 312(3) (a-b) TPC which elaborate the unlawfulness of such property.
The first ingredient of this offence is the detention of the accused by a police officer under section 25 CPA. This section vests on a police officer of any rank the power to stop, search or detain any vessel, boat, aircraft or vehicle which he has reasons to suspect anything stolen or unlawfully obtained any person having in his possession or conveying in any manner anything stolen or unlawful acquired. When the prosecution has established these ingredients, it will be for the accused to satisfy the court that he didn’t steal the article or unlawfully acquired it.
In the case of ALLY RAMADHANI V. R. (1968) H.C.D. No. 430, the Accused was convicted of retaining stolen property contrary to section. 311(1) TPC. He had at first been charged with being in possession of property suspected to have been stolen, contrary to section. 312 of the Penal Code, but this charge was altered. Accused had been found in possession of a number of bicycle parts, some of which were usable. The serial numbers on a few of them appeared to have been erased. There was no evidence that the property was concealed. The accused’s explanation was that he was a bicycle repairer and that various customers would leave parts with him after repairs had been effected. On appeal:
1. Accused clearly could not have been convicted u/s 312 TPC as original charged. The pre-requisites for a conviction under this section are:
i) That the accused was detained in exercise of powers under section 24CPC (25 CPA)
ii) That he was detained while in the course of a journey, whether or not in street, in private land or in a building.
iii) That he had in his possession, when detained a particular thing.
iv)That the thing may reasonably be suspected to have been stolen or unlawful obtained from its nature or from the circumstances..
v) That the accused refused to give an account to the court of how he came by the thing or gave an account which was so improbable as to be unreasonable, or which was rebutted by the prosecution.
But there was no evidence that either pre-requisite (a) or (b) above were satisfied. Therefore accused could not have been convicted under section 312 TPC.
2. Accused was wrongly convicted u/s 311 TPC “where as u/s 311 all that needs to be done is to lead evidence to show that there was reasonable suspicion that the property was in fact stolen or unlawfully obtained and that the appellant knew or had reason to believe that this was the case. This doesn’t necessarily mean that the owner of the property should be identified, or that there should be direct evidence of theft.
The circumstances under which an accused received or possessed the goods may prove that they were stolen and that the accused knew it. In order to rebut innocent possession the prosecution may adduce evidence of the conduct of the accused at the time he was found in possession of the article in question if each conduct is inconsistent innocent possession.
E.g. Denial of possession of goods,
Attempt to destroy the goods,
Attempt to run away
In both situations, the accused has to satisfy the court that he did not or otherwise unlawfully acquired the property. He will have failed to satisfy the court if, for instance, he gives no account to the court as to how he came by the said property or if he gives an account which is so inherently improbable as to be reasonable or which the prosecution gives an account which ought reasonably be true and which is consistent with innocent possession he will be entitled to an acquittal. However the section doesn’t require him to prove that he came by the possession of the property honestly. Read the case of GEORGE LERAI V. R 1(1921-1952) T.L.R. (R) 366.
This principle was reiterated in the case of KIONDO HAMISI [1963] E.A. 209, where it was held that before a magistrate could convict on a charge u/s 312 TPC, he must make finding as in the case of ALLY RAMADHANI (above). The burden on the accused person was something less than satisfying the court on a balance of probabilities.
In BAKARI V. R. [1962] E.A. 466, it was held that the offence must be committed in the course of a journey, possession, therefore is not enough, conveying must also be proved.
In R. V. NJUGUNA 2 K.L.R. 50, it was held that, the section doesn’t apply to possession at large, but only to such possession as a man has when he is conveying the object. The reason for this is because a conviction precedent to the offence is that the person charged must have been stopped, searched or detained by the police officer under the powers conferred by section 25CPA.
However, in NJOROGE V. R. [1965] E.A. 585 where by the appellant when surprised by a police patrol fled from a land rover, which was found to contain copper wire, reasonably suspected to have been stolen from a nearby transmitting station. The appellants were caught after short chase. It was held that the evidence was sufficient to justify a finding that the appellants were “Conveying” the copper wire.
