WHAT CONSTITUTES THEFT IN KENYA? LEGAL DEFINITIONS AND KEY ELEMENTS

 Theft is a serious offense in Kenya, governed by the Penal Code Section 268. It occurs when someone fraudulently takes another person’s property without their consent, intending to deprive them of it permanently. Theft can take many forms, from petty theft and shoplifting to larger cases like fraud and embezzlement. Understanding what constitutes theft is essential for both individuals and businesses to protect their rights and avoid unintentional legal violations. In this article, we will explore the legal definition of theft in Kenya, its key elements, and the different types of theft recognized under Kenyan law.

DEFINITION OF THEFT IN KENYA 

According to the Kenyan Penal Code, theft is defined as when a person fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property. Essentially meaning taking someone else's property without their consent and with the intention to permanently deprive them of it. It is also known as stealing. 

Robbery and burglary are different from theft. Put very simply, someone is guilty of robbery if he steals from a person using force or makes them think force will be used. Theft means taking someone's property but does not involve the use of force. Burglary means illegally entering a property in order to steal property from it. 

KEY ELEMENTS OF THEFT UNDER THE KENYAN LAW 

Theft comprises of 4 elements:

  • Appropriation/ unlawful taking- The offender must take the property of another person without their permission or consent. This can be physical taking or non-physical taking, such as through  deception or coercion
  • Property- the property that was taken must belong to someone else, and it must have some value, whether monetary or sentimental. In general, property is anything that has value, is owned by someone, and can be physically possessed or controlled
  • Ownership of property- the owner may be described as any person with the ultimate right or title to the thing. The property must belong to someone else, and the offender must have no legal right to take or possess it.
  • Intent- Intent is a crucial element of theft because the perpetrator must have the specific intent to deprive the owner of their property. In other words, the perpetrator must  intentionally take someone else's property with the intent to keep it for themselves or to deprive the owner of it permanently

 TYPES OF THEFT 

  1. Theft by trick- it occurs when the offender lies in order to receive possession of property, but never obtains the title for that property. For example, person pretends to sell a phone online, receives payment via M-Pesa, but never delivers the phone.
  2. Theft by intimidation- it occurs when the offender threatens or causes harm to another person's property, reputation, or person. For example, a school bully demands lunch money from a younger student and threatens to beat them up if they refuse.
  3. Theft as a result of a mistake-it occurs when a person unknowingly takes someone else’s property without the intent to steal, such as picking up the wrong phone or mistakenly believing an item belongs to them in such cases, the lack of dishonesty and intent may prevent it from being classified as theft under the law. For example, someone picks up the wrong phone at a restaurant, thinking it is theirs. If they realize the mistake but decide to keep it, it becomes theft
  4. Theft by finding- this is in situations where an item is found and retained, without taking steps to locate the legal owner. For example, a person finds a lost wallet with an ID inside but keeps the money instead of returning it to the owner.
  5. Stock theft- the illegal stealing of livestock or other produce. For example, someone sneaks into a farm at night and steals chickens to sell at the market.

In conclusion, theft is a serious offense under Kenyan law, with strict legal consequences. Understanding its definition, key elements, and different types can help individuals and businesses protect their property and avoid legal trouble.

 

 

 Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 REFERENCES   

Storey, T., & Martin, J. (2023). Unlocking criminal law (8th ed.). Routledge.

 

 

 

 

 

 

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