Doctrine of Recent Possession. Kenyan Criminal Law

Doctrine of Recent Possession

The name is a misnomer as the doctrine does not refer to recent possession but recent possession of stolen property[1]. The doctrine is largely a part of the principles of circumstantial evidence and is manifest to prove mens rea of the offence of handling stolen goods.

The ‘doctrine’ was explained in the case of R v Abramovitch[2] and lays down that when a person charged with handling stolen goods is found in possession of, or dealing with, goods that have recently been stolen, a jury may infer that he is guilty if he offers no explanation of his possession or they do not believe the explanation given. The jury is not bound to draw such an inference and must only do so if they are satisfied that he has committed the offence charged[3].

Applying this to the Kenyan Jurisdiction we infer the elements to be that when one is found with recently stolen property, and offers no explanation of his possession or the explanation cannot be believed then it is inferred that they know that the goods are stolen and are therefore liable for the offence.

More succinctly put; if the prosecution establishes the fact of theft and the fact of recent possession by the accused of the stolen goods, then, in the absence of any evidence to explain how the accused obtained possession of them, the jury may convict the accused[4].

The period of recency is mostly associated with the recency of theft rather than recency of possession[5]. It is a matter of circumstances such as type and size of the items. In certain cases recency can include periods longer than a month.

It is a rebuttable presumption that Arises in Court when it believes 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^[6]or handler by receiving.

It is possession by an accused person of recently stolen goods that constitutes the foundation of a prima facie case against him and creates a presumption of guilt. It is a persuasive presumption which imposes on the accused person a burden of giving an explanation of his possession that might reasonably be true. When such an explanation has been given the burden then continues to rest, as always, on the State to prove the guilt of the accused beyond reasonable doubt[7].

The 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:

1.     Ownership of the article

2.     Theft of the article

3.     Recent possession by the accused^[8]

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^[9], the court must note the scope and limitation of the doctrine e.g. 7 months after a stolen tire pump was found was held to not be recent^[10].

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^[11].

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 accused is merely expected to state how it originated^[12]

Defenses

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.^[13]

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.

Bibliography

Books/Articles

1.     Musyoka William: Criminal Law, Law Africa Publishers

2.     J.D Morton, Burdens of Proof and the Doctrine of Recent Possession, O.H.L.J, Vol 1

Cases

3.     Chaama Hassan Hasa v The Republic (1974) KLR 6 1976

4.       R v O'Keefe [1958] O.R. 499 (C.A.)

5.       Seif Ally v The Republic (1976) LRT 215 (J Mwakibete)

6.       Odhiambo v The Republic 2002 1 KLR 241

7.       Abdullah Ibrahim v R (1960) EA 43( J Law)

8.       Mwihambi s/o Chinyele and another v Regina( 1953) 2 TLR

9.       Rex v Hassani s/o Mohammed alias Kinyonyoke 1948 15 EACA 121

Internet Articles

10.                      http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100407690  

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[1] http://oxfordindex.oup.com/view/10.1093/oi/authority.20110803100407690

[2] [1914–15] All ER 204

[3] J.D Morton, Burdens of Proof and the Doctrine of Recent Possession, O.H.L.J, Vol 1

[4] [1958] O.R. 499 (C.A.)

[5] https://en.wikibooks.org/wiki/Canadian_Criminal_Evidence/Recent_Possession

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

[7] R v O'Keefe [1958] O.R. 499 (C.A.)

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

[9] Odhiambo v The Republic 2002 1 KLR 241

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

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

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

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