Introduction

In Kuwaiti criminal law, embezzlement is not simply the act of taking someone else’s money — it must fulfill specific legal components to be considered a crime. Whether the funds come from a company, estate, or power of attorney, the act must meet all the statutory elements to justify criminal prosecution. This article explains those required elements under the Kuwaiti Penal Code, focusing on financial misappropriation cases.

Legal Foundation

Embezzlement is addressed in Articles 240, 241, and 282 of the Kuwaiti Penal Code (Law No. 16 of 1960), depending on the offender’s role and the nature of the property or funds involved. To establish guilt, prosecutors must prove that the crime meets all three key elements: material, moral, and legal status of the offender.

1. Material Element (Actus Reus)

This refers to the physical act of embezzlement — the wrongful taking or conversion of property entrusted to the offender.

• The offender had lawful access or possession of the funds due to employment, agency, or a legal relationship (e.g., inheritance executor).
• They used that access to misappropriate or dispose of the funds for personal gain or to benefit others.
• The act involved cash, goods, property titles, or anything of financial value.

2. Moral Element (Mens Rea)

To be punishable under law, embezzlement must be committed with criminal intent. This includes:

• Knowledge that the funds did not legally belong to the offender.
• Deliberate intention to keep, use, or conceal the funds contrary to the interest of the rightful owner (e.g., employer, family estate, or patient).
• No attempt to return the funds voluntarily prior to discovery.

Accidental use or poor accounting does not qualify as embezzlement unless accompanied by proof of intent.

3. Legal Capacity or Fiduciary Status

The third element is that the offender must have held a position of trust or legal responsibility over the funds. Examples include:

• Company employee handling cash or payroll
• Manager or director with access to corporate accounts
• Legal agent acting on behalf of an ill or elderly person
• Heir who takes possession of inheritance funds before official division

Without such a fiduciary or entrusted role, the crime may be classified as theft, not embezzlement.

Summary Table of Elements

Legal Implications of Missing Elements

If any of the above elements is missing, the case may not qualify as embezzlement. For example:

• If the funds were not entrusted but forcibly taken – it may be theft or fraud.
• If there was no intent to retain the funds – it may be a civil dispute.
• If the offender had no authority – it may qualify under general penal provisions, not embezzlement.