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Court of AppealDismissedCriminal Appeal No. 51 of 1980

Hussein Salim v Republic [1980] KECA 9 (KLR)

Court of Appeal
24 October 1980
ELE.J.E LawCMC.H.E MillerKPK.D Potter
457 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you legally 'possess' drugs if you control them as an owner — no ownership documents needed — and dismissed Hussein Salim's drug appeal.

What this practically means

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Executive summary

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The appellant, convicted by the Resident Magistrate at Mombasa of possessing cannabis sativa contrary to section 10(e) of the Dangerous Drugs Act, lost his first appeal to the High Court (Simpson J, 11 August 1980) and appealed to the Court of Appeal at Mombasa (Law, Miller and Potter JJ A). On the concurrent findings of the courts below, it was the appellant who led police to a room in a house, opened the door, and pulled out from under the bed a box and plastic container which together held some 19 kilograms of bhang. His counsel, Mr Mbogholi Msagha, argued that those accepted facts did not amount to possession in law, relying on Biharusi d/o Ruanda v R [1959] EA 696 on possession of diamonds under Tanganyika's Diamond Industry Protection Ordinance. The Court approved Stephen's Digest of the Criminal Law definition of possession - power to deal with a moveable thing as owner to the exclusion of all others, with a presumed intent so to deal in case of need - and interpreted it as requiring neither legal title nor access excluding all other persons, but such access to and physical control that the possessor can deal with the thing as an owner could to the exclusion of strangers. The Court held the evidence satisfied that test, agreed possession was established, and dismissed the appeal, delivered at Mombasa on 24 October 1980.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence accepted by the two courts below was sufficient in law to establish possession of cannabis sativa within the meaning of section 10(e) of the Dangerous Drugs Act

Key legal issues

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01

Definition and legal test of criminal possession

Holding

The Court adopted and applied Stephen's Digest definition of possession; on the concurrent findings that the appellant led police to the room, opened the door and pulled out the box and container holding the bhang, possession was established.

Reasoning

Counsel for the appellant argued that the accepted evidence did not justify a finding of possession in law, relying on Biharusi d/o Ruanda v R. The Court approved Stephen's Digest definition of possession, interpreting it as requiring access to and physical control sufficient to deal with the thing as an owner could to the exclusion of strangers, not legal title or absolute exclusion of all others. The evidence met that test, affirming the concurrent findings of the courts below.

p. 1

Legal principles established

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  • Possession in criminal law requires neither legal title nor access to the complete exclusion of all other persons, but such access to and physical control over the thing that the possessor is in a position to deal with it as an owner could, to the exclusion of strangers.

Court orders

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  1. 1.The appeal is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EL
majority
CM
majority
KP
majority
On appeal from
High Court
Criminal Appeal No. 186 of 1980
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over a criminal appeal (as then constituted)

Relief refused

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Quashing of conviction for possession of cannabis sativa

Concurrent findings of the two courts below that the appellant led police to the room, opened the door and retrieved the bhang from under the bed established possession in law

p. 2

Costs

No costs order made in the judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in the case of need.
p. 1Definition of criminal possession (Stephen's Digest, approved)
In our view the evidence in this case satisfies those requirements, and we agree with the courts below that possession was established within the meaning of the Dangerous Drugs Act.
p. 2Application of the possession test to the evidence
Accordingly we order that this appeal be dismissed.
p. 2Final orders - disposition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hussein Salim v Republic [1980] KECA 9 (KLR)", Case Analysis (1980). Criminal Appeal No. 51 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1980/9/eng@1980-10-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.