Prof.

Emmanuel Kasimbazi
 Property is something that one or more persons own with a
right to possess and use it to the exclusion of others and a
right to transfer.
 Offences against property are the crimes that affect
another person's rights of ownership (or in some cases
possession or control).
 The main offences against property are theft, robbery,
house breaking, burglary, obtaining goods by false
pretence, criminal trespass, damage, arson, forgery.
 It is important to note that some offences against property,
such as burglary, robbery, and blackmail, may also contain
elements of offences against the person. Other offences
also include corruption, embezzlement, causing financial
loss and abuse office.
Objectives of the class
 1. Understand the mens rea and actus reus of
theft;
 2. Know the elements of the offence of theft;
 3. Analyse the provisions relevant to the offence
of theft statutes.
 The objective of the offence of theft is to prevent
prejudice or unlawful appropriation of property
belonging to other persons.
 Under section 254 of the Penal Code Act, a
person commits the offence of theft if he;
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 anything capable
of being stolen.
Actus Reus
 The Actus reus of theft has three elements:
 Property, Appropriation and belonging to another
(a) Property
 Includes money and all other property, real or personal,
including things in action and other intangible property.
Intangible property means property that does not exist in
physical sense and a thing in action is also called a chose
in action is technical term to describe property that does
physically exist but which gives the owner legal rights that
are enforceable by a court action. Examples of things in
action are shares in a company and copy right
(b) Appropriation
 Appropriation means doing something with the property
that the owner has a right to do without the owner’s
permission. It also includes a situation in which some
gains possession of property without stealing it, but later
assumes some right of the owner or getting property
(innocently or not) without stealing it, any later assumption
of a right to it by keeping or dealing with it owner.
 For example where a person is let car by a friend and
then later refuses to return. Appropriation in this case
occurs at the moment of refusal
() Belonging to another
 Belonging to another property must be belong to another at
the time of the appropriation.
Mensrea
This has two elements:
Fraudulent
 In order to constitute theft, there must be an element of
fraud. Accordingly, if a man picks up a thing merely to
ascertain what it is, this is a mere inquisitive taking which is
not theft. An intention to permanently deprive may exist if it
is proven that there is an intention of the accused to treat
the thing as their own to dispose of, regardless of another
person’s rights in the property.
 In considering whether or not there exists fraudulent intent,
reference must be made to section 254 (2) of the Penal
Code Act which enumerates the intents that show that the
taking or conversion was fraudulent. These are discussed
below.
 Fraud has the following elements:
a. An intent to permanently deprive the general or special
owner of the thing of it.
 Theft requires an intention permanently to deprive the other
of his property. The intent must not be merely to deprive the
owner of the thing temporarily. So if A takes B‟s shirt
intending merely to wear it to dance and return it to B
afterwards, or where one takes one‟s car for an event and
return it afterwards, in both instances there is no theft
committed. But if it is proved that when A removed the
property he intended to deprive B permanently of it but
afterwards changed his mind and returned it, it is theft.
 There need not be any permanent deprivation in fact.
D may be guilty of theft even though P is never in any
danger of losing his property so long as D
appropriates with the intent. Conversely, the fact of
permanent deprivation is insufficient if there was no
intent. But it must be clear that the facts- the history of
what D did with the goods – will often have an
important bearing on the proof of D’s intent. If for
instance D is found re-spraying the car which he took
from P without his permission, it can easily be inferred
that D’s intention was to deprive P permanently of it. In
every case, is for the court to determine on the
evidence whether D did so intent.
 R v. Williams (1953) 1 All ER 1068
 A conditional taking, that is, with intent to keep only such of
the goods as are valuable is not sufficient. Thus if D opens
P’s car or a box belonging to P, intending to steal anything
that may prove to be of value, he may be convicted of
attempting to steal property belonging to P though, in the
result, he finds nothing in the car or box that he considers
worth stealing. R v. Eason, a policewoman placed her
handbag on the floor in a cinema hall. The accused who
sat behind her took it and searched it for money which he
intended to steal. There was no money in it but cosmetics
tissues. He quickly placed it back. His conviction for theft of
the handbag and its contents was quashed because he did
not intend to deprive her permanently of them.
 Section 254 (2) (a) also protects the rights of a person
who, though not the owner of the property, has some
special interest in it. The term special owner in the
section includes a holder of a charge or a lien or any
right arising from or dependant upon holding or
possession of the thing. A lien is the right to hold
property of another as security for the performance of
an act. For example, if A takes his shirt to a tailor for
mending and then in order to avoid paying the bill he
subsequently removes it secretly, this is stealing
because he has thereby deprived the tailor of his
special property called a lien to the shirt.
 b. An intent to use the thing as a pledge or security.
This happens where A takes B’s goods and intends to
pledge them or give them to another person as security or
a loan of money, this amounts to a fraudulent intent
because it is an obvious assumption of the rights of the
owner.
 This happens where for example X who has never driven a
car tells Y that he can drive properly. Y doubts this. They
make a bet and Y stakes his wrist watch. X takes Z’s wrist
from a nearby table and stakes it. The watches are handed
over to A on condition that he is to give both of them to the
winner of the bet. This is theft.
 c. An intent to part with it on a 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 such a manner that it cannot be
returned in the condition in which it was at the time of the taking
or conversion.
 For example if A removes B‟s pair of trousers and alters them to
a short, there is a fraudulent intent to constitute theft. But if he
merely removes the button from the trousers, although when he
returned they are not in the same condition as they were when
removed, this may be theft of the button and not of the trouser.
This can be illustrated by the Queensland case of R v. Bailey. In
this case, A used B‟s car for three days without B‟s knowledge or
permission. There was a gallon of petrol in the car when A
removed it and this he used for driving it. He was charged with
theft but the court held that the wear and tear of the car caused
by using it in the way A did, was too slight to establish an intent
to deal with it in such a manner that it could not be returned in
the condition in which it was at the time he removed it. The court
held, however, that A could properly be convicted of stealing
petrol in the car.
e. In the case of money, an intent to use it at will of the person who
takes or converts it although he may intend to repay the amount
to owner.
 A person is deemed to use money at his or her own will, if that
person deliberately or recklessly exceeds the limits of authority
allowed to him or her, or deliberately or recklessly disregards
any rules of procedure, prescribed by the owner in respect of the
money. For example, where a person collects money from
certain person as deposits for sending them to USA on
scholarship. He does not send them and does not refund the
money on demand or at a reasonable time thereafter. This
amounts to theft; or where one receives money from housing
finance on a piece of land which he/she mortgages to the
housing finance company. He/she instead uses the money for
election campaigns. This amounts to theft because the money
still belongs to the finance company until you use it for a specific
purpose for which you received it.
 A person who takes money without the owner‟s consent cannot plead, as
a defence, the intention of afterwards repaying the money. It has been
suggested by various authors that this does not cover the situation
where a person helps himself for another‟s money to obtain change and
make immediate or later payment.
 According to section 254(1) of the Penal Code Act (Cap. 120) a “person
who 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 anything capable of being
stolen, is said to steal that thing”. However, section 254(2) of the Penal
Code Act (Cap. 120) further distinguishes that in the case of taking
money, a person is deemed to have fraudulently taken it where he or she
does so with “an intent to use it at the will of the person who takes or
converts it, although he or she may intend afterwards to repay the
amount to the owner.”
 Wainaina v R (1959) EA 601
 R v Williams (1953) 1 QB 660
 ii. Claim of Right
 A person has a claim of right where he honestly
asserts what he believes to be a lawful claim even
though it is unfounded in law or fact. An honest
claim of right may exist even where the accused
takes by force against the will of the owner or
where he demands money with menaces. On the
strict construction of the definition under section
254, a claim of right may be interpreted as a
defence to taking and not a defence to
conversion. However, claim of right is a defence
that relates generally to offences against
property and it has been suggested that it can
apply to conversion.
 According to section 7 of the Penal Code, a
person is not criminally responsible in respect of
an offence relating to property if the act done or
omitted to be done by the person with respect to
the property was done in the exercise of an
honest claim of right and without intention to
defraud. Although this defence is usually raised
in cases of theft, the section covers all offences
relating to property. It should be noted that the
section does not require reasonableness. All that
is necessary is that the claim of right must be an
honest one.
 Bonafide claim of right is closely related to the defence of mistake of
fact only that in this case, the accused is only mistaken in his belief that
he is entitled to claim some property. It is a defence in a charge relating
to an offence relating to property. The accused has to show that he was
acting with respect to any property in exercise of an honest claim of
right and without intention to defraud e.g. a person seizes the
complainant‟s property in order to enforce payment of the debt. The
defence will also stand even where the right asserted by the accused is
mistaken.
 In Ngavana v R [1972] 1 EA 559 the appellant was charged with the
theft of the heifer and claimed that it belonged to him. The appellant‟s
animal had gone missing for some six months and the appellant took
the animal from the complainant‟s land claiming that it was his missing
animal and called evidence to this effect. The magistrate held that the
animal was the complainant‟s property and that therefore the appellant
could not have a claim of right to it. On appeal, it was held that where
the accused reasonably claims property as his, even if he is mistaken, he
must be acquitted.
 In Francisco Sewava v. Uganda (MB 60/66), the
appellant was acquitted on appeal when he had
been convicted of stealing doors and roofing
materials that he claimed as his and which claim
he had put forward at his trial at his trial. It was
held that however unfound the claim might be,
the appellant should not have been convicted.
 In Kamori Johnson v Uganda [1995] V KALR 57),
it was held that the defence of claim of right is
not available where the appellant claimed that
the property belonged to some other person and
not him.
iii. Taking (asportation)
 This means carrying away or any removal of anything from the
place which it occupied. Taking is the actus reus in the offence
of theft and includes detachment of anything as well as
obtaining possession. It must always be proved that the accused
took the property in question. In the case of Lerunyani v R [1968]
EA 107, a passer-by saw the accused sitting outside a cattle
boma. On enquiring about buying a cow in the boma, the
accused told the passer-by that the cow was owned by him (the
accused) and the accused agreed to sell it to a passer-by for Shs.
40/= and five goats. The passer-by gave the accused Shs. 40/=.
The true owner of the cow then appeared and stopped the
transaction from going further. In the magistrate‟s court, the
accused was convicted of stealing cattle and he appealed. It was
held that there was no „taking‟ of the cow within the meaning of
section 268 (1) and (5) (now 263) of the Penal Code and there
was no „conversion‟ of the cow. Accordingly, the offence of theft
had not been proved.
 To constitute taking, it is not necessary for the thief
to take the thing completely into his physical
possession. He is deemed to have taken the thing if
he moves it or causes it to move and the process is
complete even with a slightest movement even if the
item is abandoned thereafter. For example if A
intending to steal a book from B‟s briefcase begins to
takeout the book whereupon B suddenly shouts at
him and he drops it back into the briefcase. A‟s
conduct amounts to taking and not merely attempt to
take. The test to be applied to determine whether
asportation has taken place is whether each and
every atom of the thing has left the place into which
it was before it was removed.
 R v. Taylor (1911) 1 KB 674
 In Kifuko v. R [1971] EA 413, the accused who was
working in a post office took a parcel from the foreign
parcels rack and put them in the locker parcels rack. The
issue was whether he was guilty of theft. His defence was
that he did not take the parcel into his possession and was
not guilty of theft. It was held that once it is proved that an
accused removed an article from one place and placed in
another place with the intention of depriving the owner
permanently from it is guilty of theft. The issue is whether
the item has left the place in which it was in before. If the
answer is yes, the accused will be said to have taken the
property.

 Taking may also be constructive, for example where a

person gives apparent consent to taking but his consent is
vitiated by a trick, intimidation or mistake.
 In Mapunda v R, [1971] EA 413 the appellant was convicted of unlawfully hunting
an elephant and stealing its tuskswhich were the property of the government.
After shooting the elephant, the appellant obtained a licence and returned for the
tusks. He obtained the tusks from the villagers who had found them and took
them to the appropriate officer to obtain a certificate of ownership. For the
appellant, it was argued that the offence was not one of theft but of cheating or an
attempt at stealing. It was held that the appellant stole the tasks when he took
possession of them. His subsequent actions in attempting to obtain a certificate of
ownership were merely evidence of his intention permanently to deprive the owner
of them. It was further states that the offence of stealing is the deprivation of
possession not ownership- the theft is committed when he wrongly removes the
goods with the necessary intent- that is, in this case, permanently to deprive the
owner of it. That a thief obtains no title to the articles stolen. A short example
might illustrate this. a thief steals a car and then subsequently attempts to have
the vehicle registration book altered in his name. The theft here is committed
when he takes the car, and the subsequent attempt of registration would be
evidence of his intention permanently to take rather than borrow the car but the
offence would be committed when he unlawfully took the car.
 iv. Things Capable of being Stolen
 It is not that everything can be stolen. Section 253
contains a list of things capable of being stolen and they
are of two categories; inanimate things and animals. Every
inanimate thing, which is the property of any person and
which is movable, is capable of being stolen. An inanimate
thing which is the property of any person and which is
capable of being made movable is capable of being stolen
as soon as it becomes movable, although it is made
movable in order to steal it. There must be an owner who
must be named in the charge sheet. However, if the owner
cannot be traced, the presumption is that most inanimate
things have owners and the charge sheet will state that it
is the property of a person unknown.
 Valueless things such as rubbish cannot also be
stolen. In Kyewawuna v Uganda(1974) EA 293 , the
accused was working in the Bank of Uganda. The
government had just changed a new currency for old
ones. He stole some of the old currency and he was
charged with theft. It was held that while the old
currencies were owned, they were useless to the
bank. They were of no value to the bank.
 Williams v. Phillips (1957) 1 AC 5
 Hibbert v. Mckierakn (1948) 2 KB 142
 A human corpse is incapable of ownership but the
coffin, burial clothes and jewelry are things capable
of being stolen since they are a property of a person
who provided them.
 Incorporeal- things without body or not of
material nature, for example telephone,
electricity cannot be stolen. There are,
however, offences created under the
respective legislations for illegal use of such
services.
 The property must be movable to be capable
of being stolen. Land and buildings cannot be
stolen because they are immovable. However,
a window or any other fixture detached from
the house is capable of being stolen.
 v. Conversion
 Conversion was defined by Atkin J. as he then was, in the
case of Lancashire and Yorkshire Railway Co. v. Mac Nicol
as dealing with goods in a manner inconsistent with the
right of the true owner provided that it is also established
that there is an intention on the part of the accused in so
doing to deny the owner‟s right or to assert a right which
is inconsistent with the owner‟s right.

 It is intended to cover a situation where a person lawfully
in possession of a thing belonging to someone else
wrongfully appropriates it to some other person. It differs
from taking in that there is no need for removal of the
thing. It is important to note that for conversion to amount
to stealing, it must be done with one of the fraudulent
intents as specified under section 254 (2).
 For example, where a person was lent property
and then determined in his own mind to sell it for
his own benefit contrary to the terms of
bailment, he had determined that in relation to
the property he would no longer be a borrower
but an owner, and an owner wishing to sell; when
he proceed to carry the intention into effect by
offering the property for sale, he had already
converted the property to his own use whether
the attempted sale takes place of not.
 Patel v R (1962) EA 509.
Special Cases
Theft by finding
 Where a thing capable of being stolen is lost by the owner,
the finder of the thing is guilty of theft if he coverts it and
at the time of the conversion the finder knows who the
owner is or he believes on reasonable grounds the owner
can be found. That is to say, the conversion or taking will
not be deemed fraudulent if at the time the person taking
or converting the thing does not know who the owner is
and believes on reasonable grounds that the owner cannot
be traced.
 Dutt v R (1959) EA 235
 If, however, the finder takes possession of property
intending to look for its owner and restore the thing to
him, he does not assume the rights of the owner and does
not commit theft.
Theft by Mistake
 This is constituted in circumstances which are similar
as the principles governing mistake of fact. It will be
theft by mistake where there is a mistake by the
transferor as to the identity of the transferee whether
or not ownership passes. An example is where a
cheque is given to a wrong person who shares the
same name with the intended recipient and the
person knowing that the cheque was not intended to
him goes ahead to cash it. Another example is where
an employee obtains an advance on his monthly
salary and later on is paid the full amount, he would
have dishonestly appropriated the excess sum.
Theft by Trick
 This is where the owner of a thing actually transfers
possession of the thing capable of being stolen to a thief
by some kind of trick. In this case, the owner does not
consent to be permanently deprived of the thing. An
example is where the owner passes possession of a thing
under a contract of repair and the thing is appropriated by
the repairer or where a customer who has been handed the
goods by the shopkeeper then walks out with them
without paying.

 However, theft by trick must be distinguished from

obtaining by false pretence whereby the offence of false
pretence involves a situation where the owner consents to
be permanently deprived of the thing.

 Zara is on his way to a job interview but as he walks
out of the house he realises it is raining. He sees his
neighbour Jackie has left a bright pink umbrella by
her gate so he picks it up to borrow for the day
intending to return it later. He is sure that Jackie
would be fine with this as they are good friends.
 The rain gets so heavy that Zara get a boda for a taxi.
He gets in and provides the address of the office he
will be going to. When the taxi pulls up, the driver
informs Giles that the meter says the fare will be UGX
10,000/=. Zara looks in his pocket for his wallet,
realises he does not have the money and cannot pay
the fee so quickly jumps off boda and out of sight
before the driver is able to react.
 Shaken by the experience, Zara decides he
better not risk being caught without cash
again today. He sees a lady walking by on her
phone and notices her purse is sticking out
slightly from her pocket. He quickly grabs the
purse but the lady grabs his arm as he tries
to get away. He shoves her hard and runs off.
 When Zara gets to the interview he is asked
to wait in reception for the interviewers to call
him. He sees a door marked „store room‟ and
is intrigued.
 He checks the receptionist is not looking and he goes
in to have a look and when he gets inside he sees a
stash of new iPhones waiting to be handed out to the
employees as their new company phones. Zara has
wanted an iPhone for ages and decides that he is not
confident he will get the job so the best thing to do
would be to take one now just in case. He checks no
one has seen him and then puts one in his bag.
 Later that day Jackie returns home and is furious that
her umbrella has been taken. She has stated in
evidence that she would not have allowed Giles to use
it if she had known as it was a gift from her boyfriend
and she is very attached to it.
 Identify any possible offences committed by Zara and
apply relevant law to determine his potential liability.