https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7907

Mutisya v Republic (Criminal Appeal E073 of 2024) [2026] KEHC 7907 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7907 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E073 of 2024 AN Ongeri, J June 4, 2026 Between Joshua Kilonzo Mutisya Appellant and Republic Respondent (Being an appeal from the judgment of Hon. R. W. GITAU (SRM) in Mavoko CMCC NO. E726 of 2022 delivered on 22/8/2024) Judgment 1.​The Appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. 2.​The particulars of the charge were that on diverse dates between 11/12/2021 and 13/1/2022 at Mlolongo Township, Athi River Sub County within Machakos County, the Appellant jointly with others not before court stole 4 pieces of 20 litres aluminium cans, 3 pieces of 10 litres aluminium milk cans, 6 pieces of 50 litres aluminium milk cans, 2 bags of maize, 1 bag of 90 kgs of yellow beans, 37 kgs of kunde, 25 kgs of green grams, 25 kgs of baazi, 25 kgs of sugar, 8 pieces of pallets, 6 pieces of gloves and cash Ksh 5000/= all valued at Kshs. 316,200/= the property of Rita Wangechi. 3.​The prosecution evidence in summary was that the complainant was a tenant to the Appellant at the material time of the alleged offence. 4.​The complainant told the Appellant that she wished to change from Milk ATM to cereals and chips. 5.​On 11/12/2021 the complainant called the Appellant's caretaker and told him to store for her some items and he agreed. 6.​When the complainant returned at 2:00 pm she found the premises locked. 7.​When the complainant went to the agent, he told her that the items had been stolen. He locked the premises because he was told they wanted to move out and yet they were in rent arrears. 8.​The complainant went and reported to the police. 9.​In January 2022 the complainant found the Appellant and some agents removing her items and burning others. 10.​The complainant went to Mlolongo police station and reported. She also took photographs. 11.​PW1, the complainant who testified as PW1, said the Appellant sent a village elder with a view to settle the matter out of court. 12.​However, PW1 learnt that the Appellant had a gun and he was known as a person who causes violence. 13.​The Appellant said he was away when the incident occurred. He said he had appointed an agent by name Konza Mali Properties to manage his houses. 14.​The Appellant did not say anything about rent arrears. He admitted he was the landlord of the complainant but it was his agent who managed the properties. He said he is a major director of Konza Mali. 15.​The Appellant called his son as a witness. The son, DW2 Victor Mununga, said his father was sick having been diagnosed with diabetes. He said during the alleged period his father was sick and could not walk or even bath himself. 16.​The trial court found that the Appellant took away the complainant's properties and destroyed others. 17.​The trial court said the complainant was in rent arrears and the Appellant's action amounted to stealing. 18.​The trial court fined the Appellant Kshs. 20,000 and ordered restitution of the stolen property and in default to serve one (1) year imprisonment. 19.​The Appellant has appealed against the said conviction and sentence on the following grounds;I.That the conviction was based on a defective charge sheet.II.That the conviction for stealing was wrong since the complainant said her items were burnt, not stolen.III.That the charges should have been directed at other people whom the complainant identified as burning the items.IV.That the charges were originally against another accused and later transferred to the appellant without proper evidence.V.That the conviction relied on evidence with material contradictions between the complainant and her husband.VI.That the trial magistrate relied on a list of stolen items that were never recovered in the appellant’s possession.VII.That the investigating officer admitted to dropping charges against the main suspect (rental agent) and charging the appellant as an afterthought.VIII.That the trial magistrate rejected the appellant’s defence without giving proper reasons, violating Section 169(1) of the Criminal Procedure Code.IX.That the appellant was sick in hospital and could not have been at the crime scene on the dates in question.X.That there was malicious intent to sue the appellant without proper evidence.XI.That the restitution order was improper because the allegedly stolen items were not properly quantified.XII.That the judgment is against the weight of the evidence presented. 20.​The parties filed written submissions as follows; The appellant submitted that the charge sheet was defective because the complainant’s own testimony and photographic evidence showed her items were burnt or destroyed, yet the prosecution proceeded on a charge of stealing, which requires fraudulent appropriation, not destruction. 21.Relying on Sigilai v Republic and Yongo v Republic, the appellant contends that a conviction on a charge that does not fit the facts violates an accused’s right to know the nature of the offence. 22.The prosecution failed to prove stealing beyond reasonable doubt because the complainant did not see the appellant at the scene, no stolen items were recovered from him, and the investigating officer admitted that the caretaker and another tenant were initial suspects but were never charged. 23.Citing Pius Arap Maina v Republic and Sawe v Republic, the appellant submits that every essential ingredient of an offence must be proved, and suspicion alone cannot ground a conviction. 24.The appellant raised an alibi that he was unwell and receiving treatment at the material time, but the trial court failed to consider it properly; under Article 50(2)(k) of the Constitution and Kiarie v Republic, the burden remains on the prosecution to disprove an alibi beyond reasonable doubt, and the accused need not prove it. 25.The trial magistrate violated Section 169(1) of the Criminal Procedure Code by rejecting the appellant’s defence without giving proper reasons, which undermines the right to a fair hearing as emphasised in Caroline Wanjiku Nguvi v Republic. 26.The restitution order issued under Section 177 of the Criminal Procedure Code is unlawful because none of the alleged stolen items were recovered, identified, or linked to the appellant. 27.The appellant concludes that the conviction rests on a defective charge, contradictory and uncorroborated evidence, superficial investigation, and an ignored defence, and prays that the appeal be allowed, the conviction quashed, the sentence and restitution order set aside, and the appellant set at liberty. 28.The prosecution explicitly concedes the appeal, admitting that the conviction in the lower court did not meet the required standard of proof beyond reasonable doubt and had numerous gaps. 29.The complainant testified that certain persons burnt her items and identified a supervising agent named Angela; therefore, the appropriate charge should have been malicious destruction of property contrary to Section 338 of the Penal Code rather than stealing. 30.The particulars of the stealing charge did not tally with the actual evidence given in court, making the charge defective under Section 214(1) of the Criminal Procedure Code. 31.Relying on the consolidated case of King’eri (Criminal Appeal 8 & 9 of 2019), the prosecution notes that a conviction is quashed where appellants are charged under the wrong provisions of the law, which is fatally defective and highly prejudicial. 32.The dispute actually stemmed from a tenant-landlord issue involving rent payment, and the individuals who were initially arrested for burning the complainant’s items were released from police custody. 33.The issues for determination in this appeal are as follow;I.Whether the charge sheet was defective.II.Whether the prosecution proved the offence of stealing beyond a reasonable doubt.III.Whether the trial court properly considered the appellant's defence and the issue of alibi. 34.I have reviewed the record of the trial court, the grounds of appeal, and the submissions by both parties. 35.The prosecution has explicitly conceded the appeal, admitting that the conviction did not meet the requisite legal threshold. 36.This court finds merit in that concession. The gravamen of the complainant’s testimony was that her property was burned and destroyed by the appellant and agents. 37.However, the Appellant was charged with the offence of stealing contrary to Section 268 as read with Section 275 of the Penal Code. 38.A charge is fatally defective when the evidence on record does not support the particulars of the offence as framed. 39.The evidence adduced by the complainant demonstrated that her property was burned, not stolen, which fundamentally contradicts the charge of stealing. 40.As held in the consolidated case of King’eri (supra), a conviction is quashed where appellants are charged under the wrong provisions of the law, as such a defect is prejudicial to a fair trial. 41.Furthermore, the prosecution’s own case established that the complainant identified a supervising agent named Angela as having participated in burning the items, and the investigating officer admitted that initial suspects were released without charge. 42.This discrepancy between the charge and the evidence renders the trial a nullity. 43.Regarding the appellant’s defence, he raised an alibi that he was sick and in hospital during the material period. 44.While the burden of disproving an alibi lies squarely on the prosecution as established in Kiarie v Republic (supra), where the court held that an accused person who puts forward an alibi does not assume any burden of proving that answer, and it is sufficient if the alibi introduces a doubt into the mind of the court. 45.In this instance, the alibi was never properly investigated or dislodged by the prosecution. 46.Consequently, this court finds that the conviction was against the weight of the evidence. 47.The conviction is hereby quashed, the sentence set aside, and the appellant is set at liberty unless otherwise lawfully held. 48.Any cash bail or fine paid by the appellant to be refunded forthwith. 49.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMiss Muimi for the AppellantAppellant absentPC Mr Mangare – StateChrispine - Court Assistant