AFRICA NAZARENE UNIVERSITY

LAW SCHOOL
COURSE TITLE: CRIMINAL LAW II
COURSE UNIT: LAW 202
DATE: SEPTEMBER-DECEMBER 2017
TIME: WEDNESDAY 11:50 A.M-.3:30 P.M.
PLACE: RONGAI
LECTURER: DR. CHARLES A. KHAMALA

LECTURE TWO: OFFENCES AGAINST PROPERTY

1. INTRODUCTION
Property offences can be divided into two. The fraudulent and non-fraudulent. Yet the very
definition of stealing contains the word “fraudulent.”
Under section 268 of Penal Code Cap 63 Laws of Kenya, the definition of stealing is:
“(1) A person who takes anything capable of being stolen or who fraudulently converts
to the use of any person, other than the general or special owner thereof, any property,
is said to steal that thing or property.”

2. ACTUS REUS
The actus reus of theft has three elements: property, taking and “capable of being stolen.”

Theft

Anything
Taking Property Fraudulently Converts to the
Capable of
Being stolen use
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 (a) Property Capable of Being Stolen
Under sections 267(1) and (2) of the Penal Code,
“(1) Every inanimate thing whatever which is the property of any person, and which is
moveable, is capable of being stolen.
(2) Every inanimate thing which is the property of any person, and which is capable of
being stolen as soon as it is made movable in order to steal it.”

Thus, any non-living which is tangible or corporeal or that has physical form is inanimate. Most
inanimate items of value are presumed to be owned by someone. Under the liberal democratic
constitution, the person whose name is written on the tag attached to any object is empowered
to determine its user. Such private property rights are guaranteed under Article 40 of Kenya’s
Constitution as follows:-
“40(1) subject to Article 65 every person has the right, either individually or in
association with others, to acquire and own property.
(a) Of any description, and
(b) In any part of Kenya
(2) Parliament shall not enact a law that permits the state or any person:-
(a) to arbitrarily deprive a person of property of any description or of any
interest in, or right over, any property of any description; or
(b) to limit; or on any way restrict enjoyment of any right under this Article in
the basis of any of the grounds specified under Article 27 (4) (equality and
freedom from discrimination).”
Under section 268(4) lost things cannot be stolen unless the finder knows or can discover the
owner. In Dutt v R [1959] EA 325 (Forbes, Gould and Windham JJA) the Court of Appeal for
Eastern Africa held that a person finding and selling a lost article (bracelet) does not necessarily
convert it fraudulently and, therefore, does not necessarily steal it, unless at the time of
conversion, he either knows who its owner is or has no reasonable ground for believing that
the owner cannot be discovered. Hence the appellant was acquitted on appeal despite having
been convicted on his own plea of guilt. See also Njani v R [1970] EA 260 (Platt J), Rex v
Kienga, [1911-1912] 4 EALR 34 (Hamilton J).

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 In Cleophas Ayimba v R (1983) (Kneller, Chesoni and Platt JJA) (Kisumu) the appellant
was found in possession of paint which he claimed belonged to him having purchased it and
produced receipts therefor. The prosecution failed to prove that the ministry for which he
worked had itself bought the paint hence the appeal succeeded against conviction of stealing by
a person employed in public service.
Under section 237(3) animals are capable of being stolen provided that they have an
owner. Wild animals which are not ordinarily found in Kenya can also be stolen whether or not
in confinement, under section 267(4). Conversely for wild animals ordinarily found in Kenya,
they are only capable of being stolen if they are not only owned, but also in confinement or
being pursued after having escaped. Those wild animals which have escaped into their condition
of natural liberty they are not capable of being stolen unless they are dead [section 267(7)].
Not only their dead bodies but also everything produced or forming part of an animal is capable
of being stolen.
A human corpse is incapable of being stolen since there are no property rights over
dead human bodies. However, the coffin or clothes or ornaments placed on the corpse may be
stolen.
In Republic v Ndesario [1969] EA 267 (Platt J) held that fluids such as water can be
stolen provided it can be appropriated to the user. The accused had no right to extract water
unofficially between certain hours. Although the water passed through the furrow over the
complainant’s farm nonetheless to extract water at any other time meant that the accused was
taking away a movable object which did not belong to him.
The accused used the water for irrigation and his intent was held to deprive the owner
permanently of it. Under section 267(5) movement consequently, land is incapable of being
stolen. Neither can permanent attachments such as buildings. This is because they are incapable
of being moved. However, an aspect of the land is detached or severed from the land, then it
becomes the basis of a theft charge.

(b) Property
Under section 268 (2): a “special owner” includes any person who has any charge or lien upon
the thing in question, or any right arising from or dependent upon holding possession of the
thing in question.
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 Thus the meaning of “property” for the purposes of theft includes money as well as
things-in-action and other intangible property. Intangible property does not exist in the physical
sense, and a “thing-in-action” (also called a “chose in action”) is a technical term to describe
property that does not physically exist but which gives the owner legal rights that are
enforceable in a court action. For example, when a bank account is in credit, the bank owes the
customer money, and if the bank refuses to pay, the customer can sue the bank for the amount
in the account. This is the “thing in action” since the customer is not claiming the specific
notes which he actually banked, but their value.

(c) Converting
The approach to be taken with cheques has caused particular problems. In Shiv Kumar Sofat v
R [1957] EA 840 (Rudd and Connell JJ) the appellant, an employee of the Railways
Corporation caused cheques made out by the Corporation in favour of a bank payable to the
account of a fictitious person. The cheques were cleared by the bank and the account of the
fictitious person was credited without the cheques ever going into the hands of the appellant.
He was convicted of theft, but on appeal, the convictions were reversed. It was held that there
was certainly fraud, false pretences and fraudulent false accounting, but there was no
conversion by the appellant since the cheques were sent to the bank by the Corporation, and
once cleared, the money represented by them became the property of the bank. The money was
then credited by the bank into the account of the fictitious person, and not by the appellant.
There was no taking of the money by the appellant or conversion of the cheques by the
appellant. It was observed that there must be an actual receipt of the money before there can be
a conversion of it.
In Hawkins v R [1959] (Forbes Gould Windham) the appellant, an accountant of the
complainant, received a cheque from the complainant in the appellant’s name with instructions
to use the proceeds of the cheque to repay a loan owed by the complainant to a third party
creditor.
Instead of paying the creditor, the appellant deposited the cheque into his own account
with the intention of reducing his indebtedness. He was convicted of converting the proceeds
and his appeal dismissed. He had, it was held, deposited the money into his own account as
owner, not as a trustee. He had no intention to repay the creditor forthwith but intended to use
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the money for his own purposes. Because he failed to pay the money as soon as the cheque
cleared, he was guilty of stealing it.
It can be seen that the balance of the cash is reduced when the cheque is cashed and can
be treated as a thing-in-action. If the cheque was drawn on an account which was in credit or
within an agreed overdraft facility [R v Kohn (1979)].
If the account was over drawn, beyond any agreed overdraft facility, then the account
holder has no right to money held by the bank which could be treated as a thing-in-action. The
case of R v Duru (1973) suggested that a piece of paper was disapproved in R v Preddy (1976).
Prof J. C. Smith has argued that cheques should be treated as property of the banks, that they
are “valuable security,” rather than focusing on a thing in action or a piece of paper.
Information cannot be stolen. In Oxford v Moss (1979) a student who stole an exam
paper was not liable for the theft of the information contained in it though he could have been
liable for theft of the piece of paper itself, assuming all elements of the offence were present.
This has implications for business, since it means that trade secrets, such as the recipe for Coca-
cola, cannot be stolen (though there are other legal means for dealing with the problem).

3. MENS REA
The mens rea has various elements: various intents under section 268(2):
“A person who takes anything capable of being stolen or who converts any property is
deemed to do so fraudulently if he does so with any of the following intents, that is to say
–
(a) An intent permanently to deprive the general or special owner of the thing of it;
(b) An intent to use the thing as a pledge or security;
(c) An intent to part with it on condition as to its return which the person taking or
converting it may be unable to perform;
(d) An intent to deal with it in a manner that it cannot be returned in the condition
in which it was at the time of the taking or conversion;
(e) In the case of money, an intent to use it at the will of the person who takes or
converts it, although he may intent afterwards.

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(a) Taking with Owner’s Permission
Thus an “appropriation” in English law means doing something with the property which the
owner has a right to do without the owner’s permission. This could include selling, keeping,
damaging, destroying or extinguishing the property. It is not limited to physically taking the
property.
A situation which caused some problems was where the accused assumed some right of
the owner’s but with the owner’s permission. Was this an appropriation?
In Lawrence v Metropolitan Commissioner [1971] an Italian student who hardly spoke English
arrived at London and boarded a taxi at the airport. He showed a taxi driver a piece of paper
with the address where he was to stay. The fare should have been 50 pence as it was nearby.
Therefore when they arrived the student offered one pound which is double the amount. Yet the
driver declined. When the student took out his wallet, the driver took out a further 6 pounds
which is 12 times the fare. His argument on appeal was that the student consented; therefore he
had not appropriated the money. However, the conviction was upheld.
In R v Morris, the appellant took goods from the shelf of a supermarket and switched
their price labels with those of cheaper products. He was charged the lower process at the
checkouts which he paid. He denied theft since there was no appropriation. The House of Lords
held that it was not necessary to assume all the rights of an owner, so long as at least one was
assumed, then an appropriation had taken place. i.e. the owner had not consented to the
accused’s unauthorized acts, not when the goods were removed from the shelves but upon
subsequent “adverse interferences” with the owner’s rights which could not be satisfied if the
owner’s consent had been given.
This directly conflicted with the Lawrence judgment, but was rejected in R v Gomez
(1993). In that case, the accused (Gomez) was the assistant manager of a shop selling electrical
goods. Ballay sought to buy 17,000 worth of electrical goods from the shop. In payment he
tendered some building society cheques, which had in fact been stolen and were therefore
worthless. Gomez acted as Ballay’s accomplice and persuaded the shop manager to accept these
cheques which were “as good as cash”, and not revealing that they were stolen. Gomez was
charged with theft (instead of obtaining by false pretences). Ballay had the owner’s authority to
take possession of the goods. Was this appropriation? If Morris was followed, then no

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appropriation and no liability. The Lawrence holding that an appropriation can take place even
if the assumption of the owner’s rights takes place with the owner’s consent.

(b) Fraudulently
The courts have to look at the common law to decide whether an accused has the relevant
“animus furandi”, i.e. acted with fraudulent intention. Under English law the Court of Appeal
laid down the test for dishonesty in R v Ghosh [1982] ALL ER 689 Lord Lane the court should
first ask whether the accused has been dishonest by the ordinary standards of reasonable and
honest people. If the answer if “yes”, the court should then ask whether the accused realized
that he or she had been dishonest by those standards. If the answer to this second question was
also “Yes”, there was dishonesty. The facts were that Ghosh was a doctor acting as a locum
consultant in a hospital. He claimed fees for an operation he had not carried out. He said that he
was not dishonest as he was owed the same amount of consultation fees. The trial judge directed
the jury to apply their own standards to decide if what he did was dishonest. On appeal from
conviction:
The English Court of Appeal decided that the test of dishonesty has both subjective and
objective elements:
- They have to start with the objective test. The second test judges the accused by what he
realized ordinary standards of honesty were. This prevents him from saying although he
knew that ordinary people would consider those actions dishonest, he did not think that
those standards applied to him.
- Was this dishonest or as easier than was this fraudulent since fraud seems to involve
technicalities which have to be explained by a lawyer.

4. THE GENERAL PUNISHMENT

Under section 275 of the Penal Code” –
“Any person who steals anything capable of being stolen is guilty of the felony termed
theft and is liable, unless owing to the circumstances of the theft or the nature of the
thing stolen. Some other punishment is provided, to imprisonment for three years.

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c/s 276 wills – ten years
c/s 277 postal matter – ten years
c/s 278 livestock – fourteen years
c/s 279 A motor vehicle – seven years
c/s 278b fishing gear – five years
c/s 279(a) from the person (b) in dwelling house with threats of violence, (c) from vessel/vehicle
(d) part of railway (e) from shipwreck or accident; (f) from public office (g) from locked room
or box
c/s 280 by public servants/officer – seven years (if item came into possession by virtue of
employment)
c/s 281 by clerks or servants – seven years
c/s 282 by company directors/officer – seven years
c/s 283 by agents – seven years
c/s 284 by tenants/lodgers – seven years
c/s 285 by second/subsequent offenders – seven years
Offences allied to stealing c/s 286-s 294 registers (14 years), concealing wills (7 years), deeds
(3 years), killing animals with intent to steal – punishment for stock theft (14 years), mineral (5
years), power (5 years) riding animals or motor vehicles or bicycles – six months (misdemeanor)
or Kshs 3,000/= or both.

5. GENERAL DEFENCE
Honest claim of right although unfounded in law and fact.

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