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.

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