Wangui v Republic (Criminal Appeal E079 of 2024) [2026] KEHC 12759 (KLR) (22 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CRIMINAL APPEAL NO E079 OF 2024** **JOHN KAMAU WANGUI…………………………………………….………….APPELLANT** **-VERSUS-** **REPUBLIC……………………………………………………..……………... RESPONDENT** **JUDGMENT** 1. The appellant was charged before the Senior Principal Magistrate’s Court at Kangema with the offence of burglary contrary to section 304(2) of the Penal Code. 2. The particulars of the charge were that on the night of 16th September 2024, at 0245 hrs within Kanyenyaini location of Kangema Sub County within MurangaCounty, the appellant broke and entered into the premises of Timothy Mwangi Ngeruwith intent to steal therein and did steal two empty keg barrels, one Ampex subwoofer, one Vitron television and one electric kettle, the property of Timothy Mwangi Ngeru. 3. In the alternative to Count I, the appellant was charged with the offence of handling stolen goods contrary to section 322(1)(2) of the Penal Code. 4. Count II was a charge of malicious damage to property contrary to section 339(1) of the Penal Code. The particulars were that on 17th September,2024 at 0245 hrs within Kanyenyaini location of Kangema Sub County within Muranga County, the appellant wilfully and unlawfully damaged one television make vitron 43’ the property of Timothy Mwangi Ngeru. 5. The appellant denied the charges and the matter proceeded to full trial. The prosecution called three witnesses. At the close of the prosecution case, the appellant was placed on his defence. He elected to give unsworn testimony and called no witnesses. 6. Upon conclusion of the trial, the learned trial magistrate found the appellant guilty of the main count of burglary contrary to section 304(2) of the Penal Code and the offence of malicious damage to property contrary to section 339(1) of the Penal Code. 7. The appellant was sentenced to serve five (5) years imprisonment on Count I and one (1) year imprisonment on Count II. The sentences were ordered to run concurrently. 8. Being dissatisfied with both conviction and sentence, the appellant preferred this appeal. **Grounds of Appeal;** 1. The appellant’s grounds of appeal, though numerous and repetitive, may be summarised as follows: 1. That the learned trial magistrate erred in law and fact by convicting the appellant when the prosecution failed to prove its case beyond reasonable doubt. 2. That the learned trial magistrate failed to properly evaluate the evidence on record and disregarded the appellant’s defence. 3. That the learned trial magistrate relied on evidence that was contradictory, inconsistent and insufficient. 4. That the investigations conducted were inadequate and crucial witnesses were not called. 5. That the charge of burglary contrary to section 304(2) of the Penal Code was defective as the particulars of the offence did not correspond with the evidence adduced at trial. 6. That the learned trial magistrate erred in convicting the appellant for malicious damage to property when the prosecution failed to prove the necessary mens rea. 7. That the sentences imposed were unlawful and excessive and that the trial court failed to comply with section 333(2) of the Criminal Procedure Code. **Duty of the First Appellate Court;** 1. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence that was presented before the trial court and arrive at its own independent conclusion while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 2. The duty of a first appellate court was set out in the celebrated case of **Okeno v Republic [1972] EA 32**, where the Court stated: *“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence.”* 1. **12.** This principle is buttressed in the decision in **Kiilu & Another v Republic [2005]1 KLR 174,** wherethe Court of Appeal held that: *“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”* 1. This Court shall therefore subject the evidence on record to fresh evaluation, consider the submissions of the parties and determine whether the convictions and sentences imposed by the trial court were safe and lawful. **Prosecution Evidence on Trial;** 1. The prosecution case was that on the night of 17th September 2024, the appellant broke into the complainant’s club premises and stole various items, including two empty keg barrels, an Ampex subwoofer, a vitron television and an electric kettle. It was further alleged that the television was damaged during the process of removal from its wall mounting. 2. PW1, the complainant, testified that he was a businessman and farmer and operated a club. He stated that on the material night at about 1.00 a.m., while asleep at his home, he received a telephone call informing him that there was a robbery taking place at his club. 3. He testified that the information had been relayed by a security guard stationed at a nearby building. PW1 stated that he contacted the police station and reported the incident. 4. PW1 was later informed that police officers had arrested the suspect. He proceeded to the premises and found that the door had been broken. 5. He testified that the appellant had broken into the counter and removed two empty keg barrels, an Ampex subwoofer, an electric kettle and a vitron television. 6. PW1 stated that the television had been in good working condition before the incident but was damaged when it was removed from the wall mounting. He stated that the screen cracked and the frame bent, and valued it at Kshs.23,000/=. 7. PW1 identified the recovered items in court, including the television, subwoofer, keg barrels, electric kettle, hammer and damaged counter lock. 8. In cross-examination, PW1 stated that he did not know the appellant before the incident and only saw him after the police had arrested him. He confirmed that he was informed of the incident by a person known as Wakarani, who was not called as a witness. 9. PW1 further stated that he did not record the name of the premises in his statement. He confirmed that the premises had one main door and that he arrived after the police had already arrested the appellant. 10. PW2 was the security guard who was on duty at a bank adjacent to the complainant’s premises. He testified that on the material night at about 1.30 a.m., he heard noises emanating from inside the club. 11. PW2 stated that he attempted to contact the complainant but did not have his telephone number. He managed to obtain the number of a person known as Wakarani, whom he contacted and requested to inform the complainant about the incident. 12. PW2 testified that police officers subsequently arrived at the scene and arrested the appellant inside the club. He stated that the complainant later arrived at the premises. 13. During cross-examination, PW2 confirmed that he did not see the appellant breaking into the premises or removing any items. He stated that he remained at his work station and only heard noises from inside the club. 14. He further confirmed that the premises was a club and that the person who eventually communicated with the complainant was Wakarani. 15. PW3, the investigating officer, testified that on the material night at about 2.45 a.m., he received a telephone call from the complainant informing him that his premises had been broken into. 16. PW3 stated that he proceeded to the scene together with another police officer. They entered through the back gate and found the door partly open. 17. Upon entering the premises, they found the appellant inside and arrested him. 18. PW3 testified that they recovered various items, including two empty keg barrels, a Vitron 43-inch television, an Ampex subwoofer and an electric kettle. He further stated that a hammer suspected to have been used in breaking into the premises was recovered. 19. PW3 testified that the appellant was escorted to the police station because members of the public were threatening to harm him. 20. He produced the recovered items as exhibits and stated that their total value was assessed at Kshs.72,000/=. 21. In cross-examination, PW3 stated that photographs of the scene had been taken but were not produced in evidence. He maintained that he found and arrested the appellant inside the premises. **Defence Case;** 1. At the close of the prosecution case, the appellant was placed on his defence. The appellant elected to give unsworn testimony and called no witnesses. 2. He denied committing the offences and stated that on 15thSeptember 2024 at about 10.00 p.m., while on his way home, he was arrested by two police officers who took him to the police station. 3. He stated that he remained in custody and was later taken to court and charged, but maintained that he was not at the scene of the alleged offence. 4. The defence then closed his case. **Appellant’s Submissions;** 1. The appellant submitted that the prosecution failed to prove the charges against him beyond reasonable doubt and that the trial court erred in convicting him. 2. On Count I, the appellant submitted that the charge of burglary contrary to section 304(2) of the Penal Code was defective. 3. He argued that burglary under section 304(2) relates specifically to breaking and entering into a building used as a human dwelling with intent to commit a felony therein. 4. Counsel submitted that the evidence before the trial court established that the premises in question was a club used for business purposes and not a dwelling house. 5. The appellant relied on **Jackson Mwangi Kariuki v Republic [2026] eKLR**, submitting that a charge sheet must conform to the applicable law and must disclose the criminal conduct complained of. 6. He further relied on **Jason Akumu Yongo & Another v Republic [1983] eKLR**, submitting that where the particulars of the charge and the evidence adduced do not correspond, the charge is defective. 7. 46. It was submitted that the trial court ought to have amended the charge under section 214 of the Criminal Procedure Code if it considered that another offence had been disclosed by the evidence. 8. On Count II, the appellant submitted that the prosecution failed to prove the mens rea for malicious damage to property contrary to section 339(1) of the Penal Code. 9. He argued that his intention was to steal the television and not to damage it and that the damage occurred only as a consequence of removing it from the wall mounting. 10. He relied on **Duncan Mwai Gichuhi v Republic [2025] eKLR** and submitted that the prosecution was required to prove that the damage was wilful and unlawful. 11. On sentence, the appellant submitted that the sentence imposed on Count I was founded on an erroneous conviction and that the trial court failed to take into account the period spent in custody as required by section 333(2) of the Criminal Procedure Code. 12. He urged this Court to allow the appeal, quash the convictions and set aside the sentences. **Respondent’s Submissions** 1. The respondent opposed the appeal and submitted that the duty of the first appellate court was to reconsider and re-evaluate the evidence afresh. It relied on **Okeno v Republic [1972] EA 32**. 2. On the alleged defect in Count I, the respondent conceded that the premises involved was a club and not a dwelling house. 3. It submitted that the proper provision ought to have been section 306 of the Penal Code, which relates to breaking into buildings other than dwelling houses. 4. However, the respondent argued that the wrong citation of the statutory provision did not render the charge fatally defective. 5. It relied on section 382 of the Criminal Procedure Code and submitted that the appellant understood the allegations against him, participated fully in the trial and suffered no prejudice. 6. The respondent submitted that sections 304 and 306 of the Penal Code were closely related and urged the Court to substitute the conviction under section 304(2) with one under section 306. 7. It relied on **Wario v Republic [2023] KEHC 21789 (KLR)**. 8. On Count II, the respondent submitted that the appellant’s argument lacked merit. It argued that the damage to the television was deliberate and that malice in the context of section 339(1) did not require proof of hatred or personal spite. 9. On sentence, the respondent submitted that the sentences imposed were lawful and within the statutory limits. It urged the Court to dismiss the appeal but substitute the conviction on Count I with one under section 306 of the Penal Code. **Issues for Determination;** 1. Having considered the grounds of appeal, the evidence on record and the submissions by the parties, the following issues arise for determination: 1. Whether the conviction for burglary contrary to section 304(2) of the Penal Code was supported by the evidence and the law; 2. Whether the defect in Count I was curable under sections 179 and 382 of the Criminal Procedure Code or whether the conviction could properly be substituted under section 306 of the Penal Code; 3. Whether the conviction for malicious damage to property contrary to section 339(1) of the Penal Code was proved beyond reasonable doubt; 4. Whether the sentences imposed by the trial court warrant interference. **Analysis and Determination;** **Whether the conviction for burglary contrary to section 304(2) of the Penal Code was proved** 1. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion. Having carefully considered the evidence presented before the trial court, the submissions by the parties and the applicable law, this Court now proceeds to determine the issues raised. 2. The appellant’s principal challenge to Count I was that the charge of burglary contrary to section 304(2) of the Penal Code was defective because the particulars of the charge did not correspond with the evidence presented at trial. 3. The respondent, while conceding that the premises involved was a club and not a dwelling house, argued that the defect was a mere misdescription of the applicable law which could be cured under section 382 of the Criminal Procedure Code. 4. The starting point is the charge itself. 5. The appellant was charged with burglary contrary to section 304(2) of the Penal Code. The particulars alleged that he: *“broke and entered into the premises of the complainant with intent to steal therein and did steal two empty keg barrels, one sub woofer make Ampex and one television make Vitron, the property of the complainant.”* 1. Section 304(1) of the Penal Code creates the offence of housebreaking and provides that: *“Any person who—* * 1. *breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or* 2. *having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking…”* 1. Section 304(2) provides that where the offence is committed in the night, it is termed burglary. 2. From the wording of the statute, it is apparent that one of the essential ingredients of burglary is that the building entered must be a building used as a human dwelling. 3. The Black's Law Dictionary defines a dwelling house as a building, apartment, or structure where the occupier and their family usually reside or, in other words, "dwell and lie in". 4. The requirement that the premises be a dwelling house is not a minor procedural detail. It is an essential ingredient that distinguishes burglary from other offences relating to unlawful entry. 5. The evidence before the trial court did not establish that the complainant’s premises was a dwelling house. 6. PW1 testified that he was a businessman and that he operated a club. PW2, who was guarding an adjacent bank, consistently referred to the premises as a club. PW3, the investigating officer, also described the premises as the complainant’s club. 7. No witness testified that anyone resided within the premises. There was no evidence of sleeping quarters, residence or any use of the premises as a human dwelling. 8. Significantly, the particulars of the charge did not allege that the appellant broke and entered a building used as a human dwelling. They merely referred to 'the premises of the complainant.' The evidence at trial then established that the premises was in fact a commercial club. Thus, both the charge as framed and the evidence adduced failed to disclose an essential ingredient of the offence of burglary contrary to section 304(2) of the Penal Code. 9. This Court therefore finds that the prosecution failed to prove one of the essential ingredients of burglary contrary to section 304(2) of the Penal Code. 10. The evidence may have established unlawful entry into commercial premises and removal of property, but criminal conviction must be based on proof of the specific offence charged. 11. As stated in **Jasunga Akumu Yongo & Another v Republic [1983] eKLR**, the purpose of a charge sheet is to inform the accused person of the case he is required to answer and the particulars must support the offence charged. 12. Similarly, in **Sigilani v Republic [2004] 2 KLR 480**, the Court emphasized that a charge must contain sufficient particulars to enable an accused person to understand with reasonable clarity the allegation facing him. 13. The Court also notes that the charge sheet was internally inconsistent as to the date of the alleged offences. Whereas Count I alleged that the offence was committed on 16thSeptember 2024, both the alternative count and Count II referred to 17th September 2024. Although the evidence on record relates to one continuous incident occurring during the night of 16th and 17th September 2024 and the appellant has not demonstrated that he was prejudiced by the discrepancy, the inconsistency underscores the lack of precision with which Count I was framed. Standing alone, the discrepancy would not have been fatal by virtue of section 382 of the Criminal Procedure Code. However, when considered alongside the substantive mismatch between the offence charged and the evidence adduced, it reinforces this Court's conclusion that the conviction on Count I cannot safely stand. 14. In the circumstances of this appeal, the learned trial magistrate erred in entering a conviction for burglary when the prosecution evidence did not establish that the premises was a dwelling house. **Whether the conviction could be substituted under section 306 of the Penal Code** 1. The respondent urged this Court to substitute the conviction with one under section 306 of the Penal Code, arguing that the evidence clearly established breaking into other premises and that the error was curable. 2. The Court has considered that submission. 3. Section 179 of the Criminal Procedure Code permits a court to convict an accused person of a minor offence where the facts proved constitute such minor offence although the accused was not charged with it. 4. The purpose of this provision is to prevent an accused person from escaping liability where the prosecution has proved an offence which is legally included within the offence charged. 5. However, the application of section 179 is dependent on the offence proved being a minor offence contained within the offence charged. 6. In the present case, the difference between burglary under section 304(2) and breaking into other premises under section 306 is not merely the difference in punishment. 7. The offences are distinguished by a substantive ingredient: the nature of the premises entered. 8. Burglary relates to entry into a building used as a human dwelling, whereas section 306 relates to buildings other than dwelling houses. 9. The nature of the premises therefore defines the character of the offence. 10. The Court is therefore unable to find that the offence under section 306 is a minor offence included within burglary for purposes of section 179 of the Criminal Procedure Code. **Whether the defect was curable under section 382 of the Criminal Procedure Code** 1. The respondent further relied on section 382 of the Criminal Procedure Code and submitted that the appellant was not prejudiced. 2. It is correct that not every error or irregularity in a charge sheet renders a conviction invalid. 3. Section 382 of the Criminal Procedure Code provides that: 4. ***“****No finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial unless the error, omission or irregularity has occasioned a failure of justice.”* 5. The provision is intended to cure technical errors that do not affect the fairness of the trial. However, section 382 cannot cure failure by the prosecution to prove an essential ingredient of the offence charged. 6. This was not a mere misquotation of a statutory section while all ingredients of the offence had been established. The prosecution evidence proved entry into a commercial club, not entry into a dwelling house. The appellant was therefore convicted of an offence whose essential ingredient was absent. 7. To invoke section 382 in these circumstances would amount to permitting a conviction for an offence different from that which the appellant faced at trial. 8. This Court therefore finds that the defect occasioned a miscarriage of justice and is not curable under section 382 of the Criminal Procedure Code. **Whether section 214 of the Criminal Procedure Code was applicable** 1. Section 214 of the Criminal Procedure Code provides a mechanism for amendment of a charge where it appears to the court that the charge is defective. 2. The purpose of amendment is to ensure that the accused person is tried on a charge that corresponds with the evidence and the law. 3. In this case, once the evidence disclosed that the premises was a club and not a dwelling house, the prosecution ought to have considered amendment of the charge to reflect the offence disclosed by the evidence. 4. Had such amendment been sought and allowed, the appellant would have been entitled to plead afresh and exercise the procedural rights available to him, including recalling witnesses if necessary. 5. That safeguard was not invoked. 6. The trial court therefore proceeded to determine the case on a charge that was not supported by the evidence. 7. The Court has considered the authority relied upon by the respondent, namely **Wario v Republic [2023] KEHC 21789 (KLR)**, in which the High Court substituted a conviction under section 304 of the Penal Code with one under section 306. 8. The Court appreciates that an appellate court has jurisdiction, in appropriate circumstances, to substitute a conviction where the evidence clearly establishes another offence and the accused person is not prejudiced. 9. However, the circumstances of the present appeal are distinguishable. 10. In this case, the difficulty is not limited to an incorrect citation of the statutory provision. The prosecution failed to establish an essential ingredient of the offence charged, namely that the premises entered was a building used as a human dwelling. 11. The appellant faced a charge of burglary, an offence whose distinguishing feature is entry into a dwelling house. The evidence instead established entry into a commercial club. 12. The Court is therefore not persuaded that this is a proper case for substitution of the conviction under section 306 of the Penal Code. 13. The Court must guard against the temptation of reconstructing the prosecution case after trial. The duty of the court is to determine whether the offence charged was proved, not whether the facts might have supported a different charge. 14. Accordingly, the appellant is entitled to succeed on the challenge against his conviction on Count I. **Whether the conviction for malicious damage to property contrary to section 339(1) of the Penal Code was proved** 1. The appellant challenged his conviction on Count II on the basis that the prosecution failed to prove the necessary mensrea for the offence of malicious damage to property. 2. It was his submission that his intention was to steal the television and not to damage it. He argued that the damage occurred accidentally when the television was removed from its mounting. 3. The respondent opposed this argument and submitted that the damage was a direct consequence of the appellant’s deliberate actions and that the ingredients of the offence had been proved. 4. Section 339(1) of the Penal Code provides that: ***“****Any person who wilfully and unlawfully destroys or damages any property shall be guilty of an offence.”* 5. The prosecution was therefore required to prove that: 1. The property belonged to another person; 2. The property was damaged or destroyed; and 3. The damage was wilful and unlawful. 6. The issue for determination is whether the damage to the television was a deliberate act or merely an unintended consequence of the appellant’s alleged attempt to steal. 7. PW1 testified that the television was mounted on the wall and was in good working condition before the incident. He stated that when it was removed, the screen cracked and the frame became bent. 8. The damaged television was produced in court as an exhibit. 9. The Court has considered the appellant’s argument that he lacked the intention to damage the television. 10. However, the offence of malicious damage does not require proof that the offender acted out of personal spite, hatred or ill-will towards the owner of the property. 11. The word “wilfully” requires proof that the act causing the damage was deliberate. 12. A person who unlawfully removes a television fixed onto a wall, in the course of committing another offence, deliberately undertakes the act of removal and assumes the foreseeable consequences of that action. 13. The damage was not caused by an independent intervening event. It occurred directly during the appellant’s act of removing the television from its mounting. 14. The Court is therefore satisfied that the prosecution proved beyond reasonable doubt that the appellant wilfully and unlawfully damaged the complainant’s television. 15. The conviction on Count II was therefore safe and shall not be disturbed. **Whether the Sentence Warrants Interference** 1. The appellant challenged the sentences imposed by the trial court on the basis that they were excessive and that the trial court failed to consider the period spent in custody. 2. Having found that the conviction on Count I cannot stand, the sentence of five (5) years imprisonment imposed on that count was founded on an unsustainable conviction and must therefore be set aside. 3. With regard to Count II, the sentence of one (1) year imprisonment was within the statutory limits provided by law. 4. However, the appellant raised the issue of section 333(2) of the Criminal Procedure Code. 5. Section 333(2) of the Criminal Procedure Code requires a sentencing court to take into account the period an accused person has spent in custody before sentence. 6. The Court of Appeal in **Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR** held that the failure to take into account the period spent in custody amounts to an error in sentencing. 7. From the record, the appellant took plea on 17th September 2024 and was sentenced on 4th November 2024. 8. Although the period was relatively short, the law requires that it be taken into account. The trial court did not expressly demonstrate compliance with section 333(2) of the Criminal Procedure Code. 9. This Court shall therefore direct that the sentence on Count II shall run from the date the appellant was first placed in custody. **Final Disposition;** 1. Having reconsidered the entire record, this Court finds that the prosecution established that the appellant was unlawfully inside the complainant’s club premises at night and that the complainant’s property was damaged. 2. However, the prosecution did not prove the offence of burglary contrary to section 304(2) of the Penal Code because the premises entered was not a dwelling house. 3. The Court declines to substitute the conviction with one under section 306 of the Penal Code because the defect was substantive and not curable under sections 179 or 382 of the Criminal Procedure Code. 4. The conviction on Count II for malicious damage to property contrary to section 339(1) of the Penal Code was properly founded and shall stand. **Orders:** * 1. The appeal against the conviction for burglary contrary to section 304(2) of the Penal Code is hereby allowed. 2. The conviction on Count I is hereby quashed. 3. The sentence of five (5) years imprisonment imposed on Count I is hereby set aside. 4. The appellant is hereby acquitted on Count I. 5. The appeal against the conviction for malicious damage to property contrary to section 339(1) of the Penal Code is hereby dismissed. 6. The conviction on Count II is hereby upheld. 7. The sentence of one (1) year imprisonment imposed on Count II is affirmed and shall be deemed to have commenced on 17th September 2024 pursuant to section 333(2) of the Criminal Procedure Code. 8. The court notes that the said sentence has since been fully served. 9. Unless the appellant is otherwise lawfully held, he shall be set free forthwith. It is so ordered. **Dated, signed and delivered virtually at Eldoret this 22nd day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE**