Ah, the Court of Appeal. Not very famous in Kenya because it is a court of record, and perhaps because it has no original jurisdiction, and neither is it the first point of contact for any cases in Kenya. Nonetheless, the Court has a rich history and excels in its record management. I might sound biased when I say that some of the friendliest judges in Kenya are the Justices of Appeal, but let us not get into that today. I was allowed to peruse a criminal appeal the other day and of course, something interesting caught my attention. Before I continue to describe what interesting thing diverted my attention from the Robbery with Violence file, allow me to send my love to all persons struggling with their mental health. In particular, the month of September is the Suicide Prevention and Awareness Month.

In this particular consolidated appeal, the appellants had been charged with Robbery with Violence contrary to section 296 (2) of the Penal Code. The second count, and rightly so, was Handling Stolen Property contrary to section 322 (2) of the Penal Code. While the appellants were aggrieved with the judgment and sentence of the the superior court, of concern was that one of the appellants contended the second count of Handling because he was only found in possession of one of the items that formed the subject matter of the suit. The issue as he put it was that the prosecution did not discharge its burden fully of proving beyond reasonable doubt that all elements of the offence were met. However, its judgment in favour of the charge of Handling, the superior court highlighted the doctrine of recent possession in relation to the offence of Handling stolen goods.


The “doctrine of recent possession” is a misnomer as it is not a doctrine and does not refer to recent possession- it refers to possession of property that has been recently stolen. The ‘doctrine’ is simply part of the principles of circumstantial evidence.

Graham gooch & michael williams

The “doctrine” only applies to offences of handling stolen goods and is relevant to proving the mens rea of the offence. R v Abramovitch is said to be among the earliest cases (in England) to have discussed this principle in great length.

Under the doctrine of recent possession, an inference of guilty knowledge may be drawn against the accused in the absence of reasonable explanation from him of how he came by the stolen goods in his possession.

d. h. jack

The doctrine of recent possession entitles the court to draw an inference of guilt where the accused is found in possession of recently stolen property in unexplained circumstances.

malingi v republic (1988) KLR 225

The court in R v Langmead agreed with this, stating that “unexplained recent possession was evidence either of theft or of feloniously receiving, depending on the circumstances”. The matter of how to decide whether the accused stole or merely received & handled it has caused quite a discussion in the legal field. In my opinion, the Court in R v Exall did justice in clarifying the issue:

The strength of the presumption which arises from such possession, is in proportion to the shortness of the interval which has elapsed … Thus, for instance, if the property were the produce of a burglary, then the possession of it soon after the burglary, is SOME evidence that the person in whose possession it is found was a party to the burglary. For at all events, he must have RECEIVED it from one who was a party to it, and this is strong evidence that he was PRIVY to it, and SOME evidence that he was PARTY to it.

pollock c. b.

R v Kowlyk, the majority of the judges were of the view that “Upon proof of the unexplained possession of recently stolen property , the trier of fact may- but not must- draw an inference of guilt of theft or of offences incidental thereto. This inference can be drawn even if there is no other evidence connecting the accused to the more serious offence. The doctrine  will not apply when an explanation is offered which might reasonably be true, even if the trier of fact is not satisfied of its truth.” However, the dissenting view was that “Recent possession of stolen goods does not give rise to a legal presumption of guilt or theft of or of break, enter and theft. Rather, it constitutes a material fact from which an inference of guilt can be drawn. But the strength of the inference will depend on the surrounding circumstances. If there is no other evidence connecting the accused to the theft (as opposed to mere possession), then the offence of theft is not made out against him.”

The reasons for divergence in views is seen to stem from the issue as to whether “an inference of guilt [of break and enter or theft] can be drawn when there is no other evidence connecting the accused to the more serious offence”. Other jurisdictions have also discussed this “doctrine”, with the Supreme Court of Canada not being an exception [Regina v Graham].

The million dollar question then becomes; 

Whether the inference which may be drawn from the unexplained recent possession of the goods in question, standing alone, would support a conviction upon a charge […] based on those articles found in possession.

The Court of Appeal summarised the essential elements of the doctrine of recent possession in Eric Otieno Arum v Republic, where the court stated that “In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must have been positively proved. In other words, there must be conclusive proof that the property firstly, was found with the suspect, secondly is positively the property of the complainant, and lastly that the property was stolen from the complainant.” 

Section 4 (a) Penal Code defines to “be in possession of” or “have in possession” to include not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person. Further, it continues to state that if there are two or more persons and any one or more of them with the knowledge and consent of the rest, has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.

In Kelvin Nyongesa & 2 others v Republic, the accused persons had been charged and convicted of Robbery with Violence contrary to section 296 (1) of the Penal Code; and 1 count of breaking in a building and committing a felony contrary to section 306 (a) of the Penal Code. In his judgment, Justice Majanja quoted the Court of Appeal in Kinyatti v R where the Court held that “… in defining ‘being in possession’, full control of the object or article in possession of the accused is not necessary nor is it a requirement of that definition. In order to prove possession, it is enough to prove either that the accused; (a) was in actual possession of the item, or that; (b) knew that the item was in the actual possession or custody of another person, or that; (c) they had the item in place (regardless of whether the place belongs to or is occupied by them or not), for their use or benefit of another person.” The Court further explained that knowledge that the item was in actual possession or is in one’s custody or of another may be inferred from the circumstances, or proved facts of the particular case.


Therefore, does this so-called doctrine shift the onus of the burden of proof from the State to the accused in light of the foregoing? Lord Reading in R v Schama & Abramovitch stated that “if an explanation is given (by accused/ prisoner) which may be true, though the jury is not convinced of its truth; the prisoner is entitled to an acquittal because the Crown has not discharged the onus of proof imposed by it of satisfying the jury beyond all reasonable doubt. That onus never changes; it always rests on the prosecution.” In Kenya, the same position was reiterated in Paul Mwita v Republic, where the Court of Appeal observed that; “Once an accused is found in possession of a recently stolen property, facts of how he came into possession of the recently stolen property is especially within the knowledge of the accused and pursuant to the previous section 111 of the Evidence Act Chapter 80, the accused has to discharge that burden.” Additionally, the court in Malingi v Republic stated that “Once the primary facts are established, the accused bears the burden to provide a reasonable explanation for the possession.This burden is evidential  only and does not relieve the prosecution from proving its case to the required standard of proof. That explanation need only be plausible.”

What is involved in the so-called doctrine of recent possession? It is difficult, indeed, to call it a doctrine for nothing is taught, nor can it properly be said to refer to a presumption arising from the unexplained possession of stolen property, since no necessary conclusion arises from it.


  1. The Penal Code Cap 63 Laws of Kenya
  2. The Evidence Act Cap 80 Laws of Kenya
  3. R v Abramovitch (1914 – 1915) All ER 204
  4. R v Kowlyk (1988) 2 S.C.R. 59
  5. R v Langmead (1844)
  6. Regina v Hall (1845)
  7. R v Exall (1866) 4 F. & F.922; 176 ER 850
  8. R v Schama & Abramovitch 11 Cr. App. R. 45
  9. Eric Otieno Arum v Republic CA Criminal Appeal No. 85 of 2005; (2006) eKLR
  10. Paul Mwita v Republic KSM Criminal Appeal No 200 of 2008
  11. Kinyatti v R (1984) eKLR
  12. Malingi v Republic (1988) KLR 225
  13. Kelvin Nyongesa & 2 others v Republic (2016) eKLR; High Court (at Kakamega)Criminal Appeal 76, 68 & 69/ 2016 [Consolidated]
  14. Graham Gooch & Michael Williams, “A Dictionary of Law Enforcement” [Oxford, Oxford University Press 2007].
  15. D. H. Jack, “The Doctrine of Recent Possession and the Rule Against Hearsay Evidence”




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