BAKARI HAMISI AND ANOTHER VERSUS THE REPUBLIC [1987] KLR


The Appellants in this matter were charged with burglary and theft but were charged with the offense of handling stolen property contrary to section 322 (2) of the Penal Code (Cap 63). The charge on that count stated that they had otherwise than in the course of stealing dishonestly received certain property knowingly or having reason to believe it to have been stolen or unlawfully obtained.
In convicting the appellants the trial magistrate observed that the appellants had dishonestly undertaken or assisted in the retention of the stolen items despite the knowledge that they had been dishonestly obtained.
The Appellants appealed to the high court which appeal was unsuccessful hence the appeal to the Court of Appeal.
The Court of Appeal held that;
·         In a charge of handling stolen goods under the Penal Code, the prosecution after having proved that the goods are stolen, it is necessary to prove that the accused handled them either by receiving, by undertaking to assist in their retention, removal, disposal, realization, or for the benefit of another person or that he arranged to so.
·         The appellants had been convicted for an offense not charged; they were convicted for handling stolen property by way of dishonestly retaining it whereas they had been charged with handling the property by way of dishonestly receiving it.
·         Receiving stolen goods is not the same as retaining stolen goods.
·         A distinction was made between the charge of handling goods by receiving them and handling goods by retaining them.
·         The court defined the terms suspicion, knowledge, and reason to believe.
·         If uncorroborated evidence of an accused is to be taken against the co accused then it is desirable for the trial court to warn itself of the danger of acting on such evidence because of the danger of the accused seeking to serve his own interest.
·         There was no evidence on record upon which a charge of jointly receiving of the allegedly stolen items by the appellants could be sustained.
·         Where there is a heavy minimum sentence prescribed for an offense, the lower courts should be particular to see each ingredient in the charge is reflected in the particulars of the offense and is properly proved.
In reaching the above conclusion the court relied on the case of R v Russell (1968) 52 Cr App R 147, Mitchell, S. G et al. (1976) Archbold: Pleading, Evidence and Practice in Criminal Cases London: Sweet & Maxwell 39th Edition, The Penal Code (Cap 63) Sections 279 (b); 304 (2); 322; 322 (1); 323, the Criminal Procedure Code ( Cap 75) sections 26, 188, 354, Theft Act 1968 [UK] section 22 (1)

In reaching the judgment above the Honorables Platt, Gachuhi & Apollo considered whether a charge of receiving is the same as that of retaining. The Honorables held that the first limb of the offense of handling stolen goods as provided for under the Penal Code is for “dishonest receiving of goods with the belief or knowledge that they are stolen goods.”
The count only suffices where there is clear evidence of possession by the defendant of the goods alleged to have been stolen.
The second limb of the offense is, “dishonestly undertaking, assisting in their retention, removal, disposal, or realization by or for the benefit of another person.”
Handling, having proved that the goods are stolen goods, it is necessary to prove that the defendant handled them either by receiving them or retaining them, removing them, disposing them or realizing them by or for the benefit of another person or had arranged to do so.
The court attempted to make a distinction between receiving and handling. The accused must know or have reason to believe at the time he received the goods that they were stolen. On the other hand he must have had such knowledge at the time he retained them. The court made a further distinction on the charge of receiving the accused must have possession when he received them, while possession is not necessary in the charge of retaining.
The court considered the case of R v Pitchley (1973)57, Criminal application No 30 where Pitchely was held to have assisted in the retention of stolen money where some forty eight hours after innocently accepting it from his son for safekeeping and banking it, he discovered it was stole and took no steps to have it returned to the owner before being visited by the police four days later. Pitchley’s control of the money in the bank was sufficient to constitute retention. According to the court, this was a clear illustration of the difference between receiving and retaining with possession.
Therefore by converting the reasoning from receiving into a case of retaining, the trial magistrate avoided the difficult task of proving possession of the stolen box in the appellant’s house.
The court came to the conclusion that having decided the case on the basis of retaining, the trial court disarmingly ended its judgment by finding the appellants guilty on the alternate charge of handling which concerned receiving.
 The court further made an attempt to define and distinguish between “suspicion” and “reason to believe.” The court defined suspicion as an inchoate state of mind inclining to, or entertaining the impression, that a certain conclusion may yet be reached. “Knowledge” is the mature stage of that f that process when the conclusion has been reached. “Reasons to believe” is an objective evaluation of the facts upon which a mature conclusion should be reached but which the individual has failed to reach because he has shut his eyes to the facts before him.   
            
KASYOKA V REPUBLIC [2003] KLR
 In this case the appellant had been convicted of among other offenses handling stolen property contrary to section 322 (2) of the Penal Code. The appellant appealed on grounds that the charge as framed was bad for duplicity due to the use of the words “received or retained.” The state argued that the fact that a charge sheet was defective was not necessarily fatal to a conviction or charge, the real test being whether the accused was able to understand the offense he faced.
The court restated the rule against duplicity under section 134 of the Penal Code as, every charge or information shall contain and shall be sufficient if it contains a statement of the specific offense or offenses with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offense charged.
The court further restated the decision in Hamisi Bakari & another v Republic on the importance of the distinction between receiving and retaining and that the two constituted two different charges.
The court also restated that decision in Cherere s/o Gukuli v Republic (1955) 22 EACA 478, where the East Africa Court of Appeal held that where two or more offenses are charged to the alternative in one count, the count is bad   for duplicity contravening section 135 (2) of the Criminal Procedure Code; the defect is no merely formal but substantial. Where an accused is so charged, it cannot be said that he is not prejudiced because he does not know exactly with what he is charged and if he is convicted he does not know exactly of what he has been convicted.  It would be impossible to say that an accused person is not prejudiced when offenses are charged in one count in the alternative; he does not know precisely with what he is charged nor of what offense he has been convicted. It is indeed very difficult to say that a breach of an elementary principle of criminal procedure has not occasioned a failure of justice.     

From the above, the following points of law are clear;
·         That under the offense of handling under section 322(2) of the Penal Code, a distinction should be made between the offense of ‘receiving’ and the offense of ‘retaining’.
·         Duplicity of charges on a charge sheet is a fatal error that is likely to prejudice the accused.      
·         If uncorroborated evidence of an accused is to be taken against the co accused then it is desirable for the trial court to warn itself of the danger of acting on such evidence because of the danger of the accused seeking to serve his own interest.
·         Where there is a heavy minimum sentence prescribed for an offence, the lower courts should be particular to see each ingredient in the charge is reflected in the particulars of the offense and is properly proved.

Comments

Post a Comment

Popular posts from this blog

Effect of the Repugnancy Clause under Section 3(2) of The Judicature Act and The Supremacy Clause Under Article 2(4) of The Constitution on African Customary Laws

1.        What does Article 2(4) of the Constitution provide? Article 2(4) of the Constitution of Kenya provides that, any law, including customary, that is inconsistent with the Constitution of Kenya is void to the extent of the inconsistency, and any act or omission in contravention of the Constitution is invalid. In essence Article 2(4) of the Constitution provides for the supremacy clause initially provided for under Section 3 of the Constitution of Kenya (Repealed) . Consequently the effect of Article 2(4) of the Constitution is that that any act or omission in contravention of the constitution is invalid. Therefore before a court of law applies Customary Law or any other law, in any particular case, the court must be sure that the particular rule of custom is not contrary to any provision of the Constitution. The court must therefore, consider all acts of a customs and ensure that they are not contrary to the provisions of the Constitution. In addition, Article 2(4)
Read more

The Problem of Legal Language: A Comparative Analysis of the Kenya Civil Procedure Rules 2010 and the 1998 England Rules of Procedure

Grant Gilmore of Yale has been quoted describing Christopher Langdell, a professor at Harvard Law school as essentially “a stupid man who early in his life hit on the casebook method, an idea that was absurd, mischievous and deeply rooted in error” an opinion that I strongly disagree with. However I do agree with the opinion of Joseph Kimble, Plain Language Michigan Bar Journal, November 2006, where he states that the case book method has had one harmful if unintended consequence for helping perpetuate legalese. Joseph Kimble states that legalese should be distinguished from terms of art such as habeas corpus, indemnity and tortious interference with a contract . He describes legalese as high faulting legal jargon such as hereinbefore stated, in the instant case, pursuant to and said claims or such claims. He further laments that use of legalese costs clients’ money, impairs persuasiveness and detracts a writer’s reputation. Bryan Garner [1] , in his article Learning to loathe
Read more

CORPORATE GOVERNANCE IN KENYA

This was Chapter 3 of my dissertation. A wonderful read for lovers of corporate governance especially as relates to the Nairobi Securities Exchange 3.1 INTRODUCTION Traditionally the idea of starting a business was driven by one motive only; that is to make profits. Questions of good corporate governance and business ethics never arose. All that mattered to organizations was whether they made profits and not how the profits were made [1] . Indeed most private business leaders are driven by profits and make no apologies for it. Ellen J Kullman , president of E. I. Du pont de Nemours and Company states that: “ Without profits, our system literally cannot be maintained anymore than man can survive without oxygen. No one would argue that breathing is an objective of life but no one could deny that, without it, no other objectives would be conceivable. And so it is and takes with it any possibilities of improving man's state of affairs. ” [2] This statement only s
Read more