Hamisi Bakari & another v Republic [1987] KECA 66 (KLR)
The bottom line
#Kenya's Court of Appeal quashed two handling-stolen-goods convictions, holding that receiving and retaining stolen property are distinct offences requiring different proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a charge of receiving stolen goods is the same as retaining them under section 322(1) of the Penal Code
- 2.Whether the High Court erred in treating 'suspicion' and 'reason to believe' as synonymous
- 3.Whether the appellants were in recent possession of the stolen goods
- 4.Whether there was evidence to support the charge of handling by receiving, particularly as a joint charge
Key legal issues
#Distinction between receiving and retaining under section 322(1) of the Penal Code
Receiving and retaining are distinct offences; the trial court convicted on receiving while its findings supported only retaining, so the conviction was for an offence not charged.
Section 322(1), drawn from section 22(1) of the English Theft Act 1968, contains separate limbs. The first limb is dishonest receiving, requiring possession and knowledge at the time of receipt; the second limb covers undertaking or assisting in retention, requiring neither possession nor receipt. The trial court's findings were all about retention - hiding the suitcase for Hakimu - yet it convicted on the alternative charge of receiving. The magistrate converted reasoning about retention into a case of receiving to avoid proving possession.
Whether suspicion equates to knowledge or reason to believe
Suspicion, knowledge and reason to believe are distinct mental states; the High Court erred in treating suspicion and reason to believe as synonymous.
Suspicion is an inchoate state of mind; knowledge is the mature conclusion; reason to believe is an objective evaluation of facts that the individual has failed to reach by shutting his eyes. The High Court's conflation would unsettle the law of arrest and search, which depends on reasonable suspicion under sections 323 of the Penal Code and 26 of the Criminal Procedure Code.
Sufficiency of evidence for the joint charge of receiving
There was no evidence of joint receiving: the goods were received on different days, separately, and Rukia had no knowledge the box contained stolen goods.
The charge alleged joint receipt on November 3, but the goods were received on October 30 or November 1. The box passed from Rukia to Hamisi; she had no interest in or control over it, and there was no evidence she knew its contents - it was her lover bringing it. Hamisi kept a closed box at Hakimu's request without knowing its contents. At the time of receipt neither appellant had knowledge or reason to believe the contents were stolen.
Recent possession
The doctrine of recent possession did not apply because this was a direct case of handling based on the admitted handing over of the goods by Hakimu.
Six weeks after the burglary, articles of clothing would have moved on quickly, but in any event the case did not depend on recent possession: the property was admittedly given to the appellants by Hakimu, the convicted thief. The inference-based doctrine of recent possession (theft or handling) was irrelevant to a direct handling case founded on the parties' own accounts.
Legal principles established
#- Receiving and retaining are distinct limbs of the offence of handling stolen goods; a conviction for receiving cannot rest on reasoning that establishes only retention.
- Suspicion is not the same as knowledge or reason to believe; suspicion is inchoate, knowledge is mature, and reason to believe is an objective evaluation.
- The knowledge or belief that goods are stolen must exist at the time of receipt (or at the time of retention, for that limb).
- Possession is required for the receiving limb but not for the retaining limb of section 322(1).
- Where a heavy minimum sentence is involved, lower courts must ensure each ingredient of the charge is reflected in the particulars and properly proved.
- A co-accused's sworn evidence against another accused warrants a warning similar to the accomplice warning.
Court orders
#- 1.Appeals of each appellant allowed
- 2.Convictions of both appellants quashed
- 3.Sentences of both appellants set aside
- 4.Appellants ordered to be set free unless held for any other lawful cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Criminal Procedure Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The question then arises whether a charge of receiving is the same as retaining. It is clear that it is not.
It held that "suspicion" and "reason to believe" were saying the same thing in different words. That is not so at all, and has never been the law.
There is no evidence on the record by which a charge of joint receiving of the box of clothes by these appellants could be sustained.
Consequently we allow the appeals of each appellant quash their convictions and set aside their sentences and they are ordered to be set free unless held for any other lawful cause.
We would note that where a heavy minimum sentence is involved, the lower courts should be particular to see that each ingredient in the charge is reflected in the particulars of the offence, and is properly proved.
Issues in the judgment
#The citation for R v Pitchley is internally irregular, combining a year, volume and what appears to be an application number rather than a normal law report citation.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamisi Bakari & another v Republic [1987] KECA 66 (KLR)", Case Analysis (1987). Criminal Appeal No. 217 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/66/eng@1987-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.