Handling Stolen Goods

Handling Stolen Goods

So with the financial crisis that’s global, it seems economic to buy that second hand phone,laptop or any other electrical gadget from so called brokers, we purchase it without any question as to its origin more often than not it has been stolen thus no valid title passes to us upon purchase.

In law this is the principle of possession of stolen property, it applies to cases of theft and theft-related offences. A rebuttable presumption arises in Court when it believes in its wisdom that the person in possession of the goods knew or had reason to believe that the goods were stolen or otherwise unlawfully received. It doesn’t apply to where the possessor is not the thief, however if you are found with stolen property of which you cannot account for then it is presumed that you are the thief[1]or handler by receiving.

The possession raises a presumption of guilt in connection with any further crime.

Doctrine doesn't apply to all cases of theft. The general rule is that where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it then it is open to the court to find him guilty of stealing or handling by way of receiving on the basis of the particular facts and circumstances of the case.

Ingredients of the offence:

1.      Ownership of the article

2.      Theft of the article

3.      Recent possession by the accused[2]

The burden is on the accused to explain and absence of a plausible explanation fuels the fire and leads to a likely conviction.

The time and application of the presumption is unlimited to time as it will vary according to the article that has been stolen. For instance 3 months has been held to be sufficiently recent for a motor car[3], the court must note the scope and limitation of the doctrine eg 7 months after a stolen tire pump was found was held to not be recent[4].

Presumption of Recent Possession v Presumption of Innocence

1.      The presumption of recent possession is a presumption of fact and not a presumption of law as the presumption of innocence[5].

2.      The presumption of fact does not displace the presumption of innocence thereby shifting the burden to the accused of producing legal proof of the innocent origin of the article. Burden remains on the state, the accused is merely expected to state how it originated[6]

Defences

Honest claim of right, an honest claim of right is a defense, where one honestly asserts what he believes to be a lawful claim even though it is unfounded in law or fact, however absurd prevents the taking from being theft.[7]

It may appear that a claim of right supports a plea of ignorance of the law but where it raises the benefit of doubt, it should be accorded to the accused.

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[1] Chaama Hassan Hasa v The Republic (1974) KLR 6 1976

[2] Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)

[3] Odhiambo v The Republic 2002 1 KLR 241

[4] Abdullah Ibrahim v R (1960) EA 43( J Law)

[5] Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR

[6] Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121

[7] Oyat v Uganda 1967 EA 827( Sir Udo Udoma)

Theft by Servant

Theft by Servant

Ever had that temptation to appropriate your employer’s funds? Ever heard that temptation to convert official money so as to buy that gigantic smart phone?
Well hope you resisted it because you would have committed an aggravated form of theft[1].Section 281 of the Penal Code[2] succinctly states that if the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.  From this we can deduce that the ingredients are;

1.      Offenders of this offence must be either clerks or servants( employees)

2.      Things capable of being stolen

3.      Fraudulent

4.      Stolen matter is employers property/or came into offenders possession by virtue of employer

This normally occurs when a master has entrusted goods to his servant and servant is known to have custody of the goods but not ownership. If money is received on someone’s behalf then it is the property of the person on whose behalf it has been received. 

Jurisprudence in this area states that;

1.      To determine whether someone is a servant we look at whether he/she is bound to obey his orders as to what work he should do and how he should do it[3]. Even conductors who take fare but give the employer a lesser sum are liable for theft by servant[4] as this money is gotten by virtue of his employer entrusting him this position.

2.      Things capable of being stolen[5]

3.      Fraudulent Taking/ Conversion: Fraudulent taking is the used in a manner that would be rejected by the employer. Thus it would not be theft if money given by employer was used in circumstances that would not be objected to by the owner[6] as this would negate the element of fraudulent taking. Conversion on the other hand is the using of something in such a way that is inconsistent with the owner’s rights.

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[1] Uganda v Matovu (1974) EA 195(C.J Wambuzi)

[2] Chapter 63 Laws of Kenya

[3] Afzal Khan Awan v R (1958) EA 492

[4] Gakubu v Republic (1968)EA 395 (CJ Farrell)

[5] Section 267 Ibid (n 2)

[6] Yusuf v Republic (1970) EA 276 (C.J Georges)

National Environmental Management Authority and Public Procurement Administrative Review Board

By Camille Amolo and Assa Mbagera

What Are Tribunals?
Tribunals are bodies established by Acts of Parliament to exercise judicial or quasi-judicial functions. They supplement ordinary courts in the administration of justice. Tribunals, however, do not have penal jurisdiction.

NATIONAL ENVIRONMENT TRIBUNAL
The National Environment Tribunal (NET) is created under Section 125 of the Environmental Management and Coordination Act (E.M.C.A) of 1999.

Functions of N.E.T    
-To hear and determine appeals from National Environment Management Authority’s decisions and other actions relating to issuance, revocation or denial of Environmental Impact Assessment (EIA) licences or amounts of money to be paid under the Act and imposition of restoration orders;
-To give direction to NEMA on any matter of complex nature referred to it by the Director General; and
-In accordance with the Forest Act No. 7 of 2005, NET is mandated to review decisions of the board under sections 33 and 63.

Composition of the Tribunal 
The National Environment Tribunal as established under section 125 of EMCA consists of five members nominated as follows:
-A Chairman nominated by the Judicial Service Commission (Currently Donald Kaniaru)
-Two lawyers, one nominated by the Law Society of Kenya and the other appointed by the Minister; and
-Two persons with exemplary academic competence in environmental management appointed by the Minister.

Power of the Tribunal 
On receiving an appeal or referral, the Tribunal shall enquire into the matter and:
-Make an award, order or decision, or give directions;
-Confirm, set aside or vary the decision in question;
-Exercise any of the powers which could have been exercised by NEMA;
-Make orders for costs; and
-Order that status quo be maintained pending determination of the appeal.
In the course of its proceedings, the Tribunal may;
-Compel attendance of any person;
-Order for discovery or production of documents;
-Order investigation of any contravention of EMCA as it deems necessary or expedient;
-On its own motion, summon or hear any person as a witness;
-Take evidence on oath and administer oaths; and
-Visit the sites which are subject of dispute.

Rules of the procedure 
Section 126 of the EMCA provides the proceedings of the tribunal. The proceedings include;
-The Tribunal is not bound by the rules of evidence as set out in Evidence Act.
-The Tribunal shall, upon an appeal made to it in writing by any party or a referral made to it by the Authority on any matter relating to this Act, inquire into the matter and make an award, give directions, make orders or make decisions thereon, and every award, direction, order or decision made shall be notified by the Tribunal to the parties concerned, the Authority or any relevant committee thereof, as the case may be.
-The Tribunal shall sit at such times and in such places as it may appoint.
-The proceedings of the Tribunal shall be open to the public save where the Tribunal, for good cause, otherwise directs.
-Except as expressly provided in this Act or any regulations made thereunder, the Tribunal shall regulate its proceedings as it deems fit.
-The prescribed rules of procedure are in Legal Notice No. 191 of 21st November 2003 which is The Environmental and Co-ordination Act, 2003 (No. 8 of 1999).
Appeal from the Tribunal
Section 129 of the EMCA provides for Appeals to the Tribunal. It states that “Any person who is aggrieved by:—
(a) A refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;
(b) The imposition of any condition, limitation or restriction on his licence under this Act or regulations made thereunder;
 (c) The revocation, suspension or variation of his licence under this Act or regulations made thereunder;
(d) The amount of money which he is required to pay as a fee under this Act or regulations made thereunder;
(e) The imposition against him of an environmental restoration order or environmental improvement order by the Authority under this Act or regulations made thereunder;
May within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.  Unless otherwise expressly provided in the EMCA, where it empowers the Director-General, the Authority or Committees of the Authority to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.  Upon any appeal, the Tribunal may;
(a) Confirm set aside or vary the order or decision in question;
(b) Exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or
(c) Make such other order, including an order for costs, as it may deem just. Furthermore, upon any appeal to the Tribunal under this section, the status quo of any matter or activity, which is the subject of the appeal, shall be maintained until the appeal is determined.
Parties have a right to appeal to the High Court and such appeals must be lodged within 30 days after the Tribunal’s award, order or decision. The decision of the High Court on any appeal under Section 130 of the EMCA shall be final.
Independence of the Tribunal
The Tribunal is a quasi-judicial body which makes its own decisions in accordance with the law and free from any interference. It also operates independently of all other institutions established under EMCA including NEMA and its committees and NEC. It makes its own decisions without reference to any other party. It also has the power to determine its own procedure. Administratively, the Tribunal falls under the Ministry responsible for the environment which is currently the Ministry of Environment, Water and Natural Resource. The Cabinet Secretary of this Ministry is Hon. Prof. Judi Wakhungu and she is assisted by the Principal Secretaries Mr. Richard Lesiyampe (In charge of Environment) and Mr. James Teko Lopoyetum (In charge of Water)

Advantage of National Environment Tribunal
The process of courts of law is elaborate, slow and costly. The Tribunal on the other hand disposes of disputes expeditiously and at a relatively low cost. It provides for use of assessors and experts in hearing of disputes.

Rulings
The Tribunal received the first appeal on 17th February, 2005 and a total of six (58) appeals have been filed so far.
Affiliates to NET
The following are branch organizations closely related to the NET.

NETFUND
National Environment Trust Fund (NETFUND) is a government organization established under the Environment Management and Co-ordination Act (EMCA 1999) by the Ministry of Environment and Natural Resources. EMCA’s objectives were to coordinate lead agencies and streamline 77 scattered pieces of environmental leg­islations in order to establish a coherent institutional framework for environmental management in the country. In this respect, EMCA section 24 established the National Environment Trust Fund (NETFUND) to mobilize, manage and avail resources for various aspects of environmental management.
NETFUND is a fund through which the government, multilaterals, bilateral, corporate bodies, individuals and other organizations can fund environmental, natural resources and climate change activities in Kenya.
It is administered by a Board of Trustees, ap­pointed by the Cabinet Secretary Ministry of Environment, Water and Natural Resources. The BoT is the main decision-making organ charged with, among other things, policy formulation, provision of advisory services, control of NETFUND funds and assets and undertaking other activities in line with the mandates, mission and vision of NETFUND. The trustees are selected on basis of dem­onstrated integrity, dedication and competence in a variety of fields as outlined in EMCA. There is a Board of Trustees consisting of professionals both from the private and public sector.

NEMA
The National Environment Management Authority (NEMA) is established under the Environmental Management and Co-ordination Act as the principal instrument of Government for the implementation of all policies relating to environment. EMCA 1999 was enacted against a backdrop of 78 sectoral laws dealing with various components of the environment, the deteriorating state of Kenya's environment, as well as increasing social and economic inequalities, the combined effect of which negatively impacted on the environment. The supreme objective underlying the enactment of EMCA 1999 was to bring harmony in the management of the country's environment.

PPARB
The Public Procurement Administrative Review Board (PPARB) as stated in Section 25 of the Public Procurement and Disposal Act (PPDA), 2005 is a continuation of the Public Procurement Complaints, Review and Appeals Board which was established under the Exchequer and Audit (Public Procurement) Regulations, 2001.  It was established to promote and uphold fairness in the Public Procurement System through judicious and impartial adjudication of matters arising from disputed procurement proceedings.
The Board is autonomous and is made up of six members nominated by various bodies as prescribed in Regulation 68 (1) (a). The bodies are;
(i) Kenya Association of Manufacturers;
(ii) Law Society of Kenya;
(iii) The Architectural Association of Kenya;
(iv) The Institution of Engineers of Kenya;
(v) The Institute of Certified Public Accountants of Kenya;
(vi) The Kenya Institute of Supplies Management;
(vii) The Institute of Certified Public Secretaries of Kenya;
(viii) The Chartered Institute of Arbitrators;
(ix) The Kenya National Chamber of Commerce and Industry;
(x) The Kenya Institute of Management;
(xi) The Computer Society of Kenya;
(xii) The Pharmaceutical Society of Kenya;
(xiii) The Federation of Kenya Employers;
(xiv) The Central Organization of Trade Unions three other members appointed by the Minister; a Chairman appointed by the Minister from among the persons appointed under paragraph (a).
Sections 93 100 of the PPDA read together with Regulations 67 88 of the Public Procurement and Disposals Regulations, 2006 are the provisions that govern the Review Board.
As part of the Government reform agenda, the need to strengthen and streamline the procurement process was given prominence. This therefore, led to the enactment of The Public Procurement and Disposal Act, 2005 and Public Procurement Regulations 2006, which was operationalized on 1st January, 2007
Administrative services are offered to the Board by the Public Procurement Oversight Authority which acts as its secretariat. The business of the Review Board is transacted between 8.00 am and 5.00 pm on normal working days unless otherwise agreed to by the secretary .
The Public Procurement System in Kenya has evolved from a crude system with no regulations to an orderly legally regulated procurement system. The Government’s Procurement system was originally contained in the Supplies Manual of 1978, which was supplemented by circulars that were issued from time to time by the Treasury. The Director of Government Supply Services was responsible for ensuring the proper observance of the provisions of the Manual. The Manual created various tender boards for adjudication of tenders and their awards.
A review of the country’s public procurement systems was undertaken in 1999 and established that:
i) There was no uniform procurement system for the public sector as a whole
ii) It did not have sanctions or penalties against persons who breached the regulations in the Supplies Manual, other than internal disciplinary action. Consequently application of the rules was not strict and many of the norms were not followed
iii) The Supplies Manual did not cover procurement of works
iv) The dispute settlement mechanisms relating to the award procedures as set out in the Manual were weak and unreliable for ensuring fairness and transparency
v) Records of procurement transactions in many cases were found to be inaccurate or incomplete or absent, which led to suspicions of dishonest dealings at the tender boards.

In view of the above shortcomings it was found necessary to have a law to govern the procurement system in the public sector and to establish the necessary institutions to ensure that all procurement entities observe the provisions of the law for the purpose of attaining the objectives of an open tender system in the sector. Consequently the establishment of the Exchequer and Audit (Public Procurement) Regulations 2001 which created the Public Procurement Directorate (PPD) and the Public Procurement Complaints, Review and Appeals Board(PPCRAB).
The PPD and PPCRAB, though largely independent in carrying out their activities, had been operating as departments in the Ministry of Finance on which they relied for staff, facilities and funding. Since these institutional arrangements have a potential for undermining the impartiality of these bodies in the long run it was found necessary to create an oversight body whose existence was based on a law. The Public Procurement and Disposal Act, 2005 was thus enacted and it became operational on 1st January, 2007 with the gazettement of the Public Procurement and Disposal Regulations, 2006.
The Public Procurement and Disposal Act, 2005 created the Public Procurement Oversight Authority (PPOA), the Public Procurement Advisory Board (PPAB) and the continuance of the Public Procurement Complaints, Review and Appeals Board as the Public Procurement Administrative Review Board (PPARB). The PPAB and PPARB are autonomous bodies .
Mandate of on its overall functioning
  3. Initiating public procurement policy
 4. Assisting in the implementation and operation of the public procurement system by:
-preparing and distributing PPOA
The PPOA is mandated with the responsibility of:
  1. Ensuring that procurement procedures established under the Act are complied with;
  2. Monitoring the procurement system and reporting manuals and standard tender documents,
-providing advice and assistance to procuring entities, and
-develop, promote and support training and professional development of staff involved in procurement.


BIBLIOGRAPHY
1. Environmental Management and Coordination Act, Act No. 8 of 1999
2. Public Procurement and Disposal Act (PPDA), 2005
3. Exchequer and Audit (Public Procurement) Regulations, 2001
4. National Environment Tribunal Website, < http://net.or.ke/ >
5. National Environment Trust Fund Website, < http://www.netfund.go.ke/ >
6. National Environment Management Authority Website, < http://www.nema.go.ke/ >
7. Public Procurement Oversight Authority Website, < http://www.ppoa.go.ke >