https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11281

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CRIMINAL APPEAL NUMBER E003 OF 2026** **SABONTU AMIN KADIR……………………………………. APPELLANT** **VERSUS** **REPUBLIC…………………………………………………. RESPONDENT** **(Being an appeal arising from the conviction and sentence delivered on 20.01.2026, by Hon. W.K Cheruiyot (PM) in Marsabit MCCR/E289/2025)** **BETWEEN** **REPUBLIC…………………………….……………………..PROSECUTOR** **VERSUS** **SABONTU AMIN KADIR………………………….…….……...ACCUSED** **JUDGEMENT** 1. **INTRODUCTION** 2. The appeal is filed by the appellant to challenge her conviction and sentence delivered on 20.01.2026, by **Hon. W. K Cheruiyot (PM)** in **Moyale MCCR/E289/2025** where she was convicted of the ***offence of stealing contrary to section 268(1) of the Penal Code as read with Section 275 of the Penal Code***, and after mitigation, was sentenced to serve two (2) years imprisonment from date of arrest. 3. Being dissatisfied with the said conviction and sentence the appellant filed her petition of appeal and raised the following grounds of appeal; 4. ***That the learned trial magistrate erred in law and fact by failing to consider her request to avail CCTV footage as her witness, despite the house and plot being fitted with cameras.*** 5. ***That the learned trial magistrate erred in law and fact by failing to take into account that she is the sole breadwinner of her seven‑month‑old child, whose life has been rendered difficult by her incarceration.*** 6. ***That the testimonies of PW2 and PW3 were contradictory and unreliable, with PW2 alleging that he saw household items in the accused’s rented house, while PW3 claimed that the accused’s sister had locked the house and fled with the key.*** 7. ***That the learned trial magistrate failed to consider that she had previously been prosecuted before an Ethiopian court of law and discharged after the complainant failed to produce any evidence.*** 8. ***That the learned trial magistrate failed to consider her mitigation.*** 9. The Appellant thus prayed that her appeal be allowed, her conviction and sentence be quashed and she be set free. 10. **BACKGROUND FACTS** 11. PW 1, Fatuma Hassan Osman**,** the complainant, testified that she had employed the appellant as a domestic worker for five months between February 2025 to July 2025 and paid her a monthly salary of **Kshs.5000/=**. On 26.07.2025, she left the appellant at home with her brother, who had mental illness and her nephew and later when she returned that afternoon, she found that the appellant was missing and attempts to reach her on phone failed. She checked the appellants room and discovered that she had not carried her clothes and thus expected her to return but even on the second day after she left, she did not turn up. 12. On the second day at about 4.30pm, the appellant’s sister called her from Wajir and told her that she should look for another maid, and that is when she realized that the appellant had absconded and this raised her antenna to check if the cash she had saved and kept hidden in a drawer hidden under her bed was intact. Unsurprisingly, she discovered that the said cash, which was **Kshs.600,000/=** was missing. She reported the matter to the police and discovered that the appellant had crossed over into Ethiopia, rented a house, were she was eventually arrested from. She also confirmed that she had no quarrel with the accused and had been paying her a monthly salary on time. 13. PW2 Mohamed Mohamud Isack, an Oromo elder, testified that he was approached by the complainant, who reported that her house help, who was from his community had stolen her money from her house and had thereafter fled to Ethiopia. He circulated the appellants photograph among Ethiopian authorities and after some time, the appellant was tracked and arrested. He subsequently informed PW1 and accompanied her to Ethiopia, where she positively identified the appellant as her employee, who stole her money. Initially, the Ethiopian authorities were reluctant to deport the appellant to Kenya, but upon intervention of a senior defence officer, she was eventually deported to face the charge before court. 14. Under cross‑examination, he stated that if the accused had grievances about being mistreated by the complainant or had issues of unpaid wages, she ought to have reported her grievances to him as their elder to help resolve the same, but she had not done so. Further, he had not seen her steal the sums claimed, but upon arrest, they had discovered that she had rented a house where she paid **8000 birr**, which house was fully furnished with a bed, carpet and personal effects. 15. PW3 Maalim Hune Osman, testified that he knew the appellant as she worked for her sister and their mother. On the material day he went to the shop and as a matter of routine, the appellant would come to pick vegetables at about 11.030am, which she would use to prepare lunch. He was with his daughter and asked the appellant to go back with her to her grandmother’s house where he would join them for lunch. Later at about 1.00pm, when he went home for lunch, he was surprised to find his child alone. Upon inquiry, she reported to him that that the appellant had left her at along main road and directed her to walk home, and saw the appellant take the route to Ethiopia border. 16. That evening, PW1 confirmed that the appellant had not returned to work and later discovered that her savings of **Kshs.600,000/=**, which she kept in a Wardrope inside her bedroom was missing. They requested PW2 to help them traced the appellant in Ethiopia, where she was eventually arrested and repatriated to Kenya. On cross‑examination, he confirmed she did not witness the theft but reiterated that the accused had abandoned her work and fled to Ethiopia. He was also not aware if the theft incident was captured on CCTV. 17. PW4 P.C. George Mwita Samson, Moyale DCI, confirmed that a complaint was made at their station about theft by a servant, who had picked **Kshs.600,000/=** kept in a bag inside the bedroom and thereafter fled to Ethiopia where she was eventually traced, arrested and repatriated back to Kenya. He visited the complainant’s house, recorded witness statements and eventually had the appellant charged before court. On cross‑examination, he confirmed that no money or household items were recovered from the accused at the time of arrest. 18. The prosecution closed their case at that point and upon considering the said evidence, the appellant was placed on her defence by the trial court. 19. **DEFENCE CASE** 20. The appellantgave sworn evidence and confirmed that she was a resident of Shashemane in Ethiopia and worked for the complainant as a domestic worker for about four months. During the said period, she was not paid her wages and when she demanded for the same, was beaten and forcefully removed from her work place. She denied stealing any money from the complainant’s house and maintained that she was unaware of any savings kept therein. She also pointed out that PW1 had also insinuated that they had a CCTV camera in her residence, but did not produce any CCTV video clip to prove the alleged theft incident. She further explained that, after she was chased away and locked out from PW1’s residence, she found her way back Ethiopia, where she rented a house, and was later arrested by Ethiopian police and handed over to Kenyan authorities. 21. She emphasized that the charges against her was false, and that no recovery of money or property was made from her at the time of arrest. She further contended that several tenants lived within the same compound, yet none of them was called as a witness and/or interrogated concerning the said incident. She thus urged the court to acquit her, to enable her go back to Ethiopia to assist her family members who depended on her. 22. On cross‑examination, she reiterated that she had not been paid her wages for four months and that her disagreement with the complainant arose when she demanded to be paid. She maintained that she was threatened with death by the complainant and reiterated that she had not stolen any money from PW1, the complainant. 23. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence ofstealing contrary to section 268 (1) as read with section 275 of the Penal Code. After mitigation, the trial court sentenced the Appellant to serve two (2) years imprisonment. 24. **THE APPEAL - ANALYSIS AND DETERMINATION** 25. The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See ***Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) & Shantital M Ruwala versus Republic (1957) EA 570,*** where the court of appeal set out the duties of the first appellant court. 26. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the oral submissions advanced by the Appellant and the respondent Counsel and find that the following issues arise for determination; 27. ***Whether the evidence adduced by the prosecution was sufficient to convict the Appellant.*** 28. ***Whether the sentence passed should be interfered with***. 29. In criminal cases, the burden of proof lies with the prosecution and they have to persuade the court either by preponderance of evidence or beyond reasonable doubt, that the material facts that constitute their whole case are true, thus consequently have established their case and deserve to have judgment given in their favour. ***See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 16 & Rex v Donovan [1934] 2 KB 498 (CCA).*** 30. The Appellant herein was convicted for the offence of stealing contrary to **section 268 (1) as read with section 275 of the Penal Code**. Section 268(1) of the Penal Code states that; ***“Definition of stealing”*** 1. ***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, any property, is said to steal that thing or property”*** 2. Additionally, section 275 of the said penal Code states that; ***“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years”*** 1. To sustain a charge of theft, the prosecution must prove several key elements. Firstly, the property in question must be tangible and capable of being stolen. Secondly, the property must belong to another person or entity. Thirdly, there must be a fraudulent and dishonest taking or conversion of the property by the accused persons. Finally, the prosecution must establish that the accused persons intended to permanently deprive the owner of the property. If all these are proven, the accused then is liable for an imprisonment term of 3 years. 2. The appellant alleged that she kept **Kshs.600,000/=** in her bedroom drawer, which she discovered was missing two days after the appellant had abruptly resigned from her job unannounced and relocated back to Ethiopia. The Appellant was later traced using PW2’s connection’s and was repatriated back to Kenya, to face due process. 3. The Appellant in defence denied the allegation that she run away, and disclosed that she was chased away by PW1 when they disagreed over her salary arrears, which was outstanding, and for which she was rightfully demanding payment for. She further pointed out that the complainant’s residence had a CCTV video coverage, which would have capture the thief, but was deliberately not presented to court and that the said compound too had other tendants, who could have also stolen the alleged sum, but none were interrogated. She maintained her innocence and urged the court to acquit her of the charge faced. 4. The evidence adduced to convict the appellant largely circumstantial and a negative inference drawn by her running away back to her homeland Ethopia. However, proof in a criminal case can be established either by direct evidence or by circumstantial evidence from which a reasonable inference may be drawn. Where circumstantial evidence meets the legal threshold, it may well be the basis for finding an accused person culpable. ***See Neema Mwandoro Ndunya-Vrs- Republic (2008) eKLR*** where the Court of Appeal cited with approval the case of ***Republic-Vrs- Taylor Waever and Donoven (1928) 2Cr App R 20***: the Court stated that ***“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a preposition with accuracy of mathematics. It is no derogation of evidence to say it is circumstantial”.*** 1. PW1 alleged that the sum of **Kshs.600,000/=** was stolen from her residence, which she alleged was saving made from her cashier job at her brother’s hotel but did not bring before court any tangible evidence to prove that she had the said amount within her house. The prosecution inferred that since the appellant left her job unannounced and ran away and hid in Ethiopia, it pointed toward her guilt as the person who stole the said sum. But again, this has to be considered and weighed against the defence offered that the dispute was about unpaid wages and that she was chased away by PW1 and returned to Ethiopia, which was her country of origin. 2. The burden of proof in criminal law does not shift, and proof of the exact sum stolen was not established. As such, it was unsafe to accept PW1’s averment that she had **Kshs.600,000/=** in the house without tangible proof thereof. The facts herein therefore only establish strong suspicion that the appellant might have committed an offence and ran back to Ethiopia, but in law strong suspicion cannot be used to convict, unless sustained by corroborating evidence, which lacked in this matter. See **Sawe-Vs-Rep (2003) KLR 304.** 3. **DISPOSITION** 4. The upshot, having considered the entire record, I do find that the appellants conviction is not safe. The same is therefore quashed and her sentence is set aside. She shall be set free unless lawfully held. 5. The Appellant will also be deported back to Ethiopia by the Directorate of Immigration services upon release. 6. Right of Appeal 14 days. 7. It is so ordered. Judgment read, signed and delivered in Open Court at **MARSABIT** this **23rd** day of **JULY** 2026. **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** this **23rd** Day of **JULY, 2026.** In the presence of:- ………………………………………..Appellant ……………………………………..For O.D.P.P …………………………………..Court Assistant