https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12590

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA NO. E087 OF 2025** **MARTIN NGIREE NJAGI** **………….…………………………….………….…APPELLANT** **VRS** **REPUBLIC……………………………...………………….…………….…...RESPONDENT** **JUDGMENT** 1. The appellant and another were charged with the offence of Shop breaking contrary to Section 306 (a) and Stealing contrary Section 279 (b) of the Penal code. *The accused persons broke and entered Telefonica Communication shop belonging to one John Karanja and stole therein Cash Ksh.330, 709, assorted mobile phones and Airtime the property of the said John Karanja.* 1. In the alternative count, the accused was charged with Handling stolen property contrary to Section 322 (1) (2) of the Penal Code. *On the 23rd day of November 2023 at around 2100hrs at Murang'a Town within Murang'a Sub-county, otherwise than in the course of stealing, the accused retained on mobile phone make Tecno Spark IOG Imei knowing or having reasons to believe them to be stolen goods.* 1. The prosecution called a total of Five (5) witnesses in support of the said charges.The appellant gave sworn evidence and did not call any witness. 2. The court convicted the appellant and sentenced him to 5 years imprisonment. The co-accused was acquitted under Section 215 of the CPC. 3. The appellant prays that this court quashes the conviction and sets aside the sentence imposed in Criminal Case No. E903 of 2023. **Appellant’s Submissions;** 1. The appellant argues that the learned trial magistrate erred in law and fact by convicting the Appellant on insufficient and uncorroborated circumstantial evidence. 2. It is his case that none of the prosecution witnesses witnessed the Appellant breaking into or stealing from the complainant's shop. All prosecution witnesses (PW1—PW4) expressly stated that they did not see who broke into the shop. 3. According to him they did not know the Appellant prior to court proceedings. The conviction was therefore based purely on circumstantial evidence according to him. 4. He placed reliance in the case of **Sawe v Republic [2003] KLR 364** in arguing that circumstantial evidence in law must irresistibly point to the guilt of the accused and exclude all other reasonable hypotheses.According to him the evidence on record does not meet this threshold. 5. On another front, he advanced the argument that the doctrine of recent possession was wrongly applied.He is troubled that the trial court relied heavily on the doctrine of recent possession to convict the Appellant. 6. He places reliance on **Eric Otieno Arum v Republic [2006] eKLR** where the court reiterate that, the prosecution must strictly prove: 7. That the property was found with the accused; 8. That the property belonged to the complainant; 9. That the property was stolen; 10. That the property was recently stolen. 11. The appellant submits that he consistently denied being found with the alleged Techno Spark 10 5G phone and no independent arresting officer who allegedly tracked the phone testified. No tracking report, call data, or expert evidence was produced to link the phone to the Appellant. 12. The alleged recovery was therefore not proved beyond reasonable doubt, and the doctrine of recent possession was improperly invoked. 13. He advanced the ground that the trial court relied on hearsay and untested evidence in that PW5 (the investigating officer) admitted that the phone was allegedly tracked by CRIB officers and that he was not present during the actual arrest of the Appellant. 14. The evidence relied upon was therefore hearsay, contrary to Sections 62 and 63 of the Evidence Act according to him. 1. He argues that his defence was improperly rejected. He gave a sworn defence detailing his arrest circumstances, the allegations of assault and extortion and that he was arrested with an Itel phone, not the alleged Techno Spark phone. 15. The trial court dismissed this defence as an "afterthought" without: Proper analysis according to him. 16. It is trite law that an accused person's defence must be considered alongside the prosecution evidence **(See Oketch Gicharu v Republic [2010] eKLR).** The trial court failed to do that. 17. Once the alleged accomplice was acquitted and no independent evidence of common intention under Section 21 of the Penal Code was proved, the conviction of the Appellant became unsafe. He argues that conviction on the main count was unsafe after acquittal of the alleged accomplice. The 1st accused was acquitted due to lack of evidence. The Appellant was alleged to have acted jointly with the acquitted co-accused. 18. He submits that the court failed to consider alternative sentencing options. The Appellant was a first offender in the present case and the sentence of five (5) years imprisonment was excessive. 19. According to him, the sentencing must be proportionate and individualized **(See Bernard Kimani Gacheru v Republic [2002] eKLR).** 20. As averred in the case of **Okeno v Republic [1972] EA 32**. This Honorable Court, as a first appellate court, is under a duty to re-evaluate the entire evidence on record, Analyze it afresh, and Arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testimony. **The Respondents Submissions** 1. The Respondent challenges the grounds that the evidence was insufficient and uncorroborated and the court relied on hearsay and untested circumstantial evidence. The appellant states that the doctrine of recent possession was wrongly applied is also challenged by the Respondent. 2. The Respondent submits that the court observed that the prosecution was able to prove that a person broke into a building having obtained entry into the building by breaking any part of building. The prosecution was able to prove that the complainant's employees securely closed the business doors on 20th January 2023 and went home. 3. When the said employees reported the next morning, they noted that the front door of the shop had been broken into and some items were missing. The complainant later went to the shop and then reported the matter to the police. Investigations commenced and photos were taken and were produced as exhibits. 4. The court observed that the prosecution witnesses evidence corroborated each other. The employees of the complainant stated that they used to stock phones in the shop using IMEI numbers and they were able to account the phones that got stolen. They provided the IMEI numbers to the police officers who were able to trace one of the phones in possession of the appellant. 5. The Investigating officer stated that they were able to locate one of the stolen phones through CRIB officers and they traced it at Mjini area in possession of the appellant who was using the phone. 6. According to the respondent, the doctrine of recent possession was applied correctly and that circumstantial evidence proved that the appellant was one of the culprit that broke into the phone shop and stole items. 7. The court stated that the appellant and the co accused failed to discredit and cast doubt into the prosecution's case. 8. During cross examination, the appellant stated that he did not know his co-accused yet he was the one who identified him to the police as one of the passengers that he had ferried on the night of the subject incidence. 9. The appellant failed to explain how a phone stolen from the complainant's shop was recovered in his possession. The appellant was unable to substantiate how he was allegedly framed by the police and what grudge that the police had against him.The court termed the appellants defence as an afterthought. 10. The conviction was safe in that all evidence of commission of offence pointed to the appellant and not the accomplice. 11. The court noted that it is the appellant who had adversely mentioned the accomplice as one of the passengers that he ferried on the date of incidence which led to his arrest but no evidence showed his liability or contribution to the offence. 12. The learned magistrate found the accused guilty for the subject offence and sentenced him to 5 years imprisonment and the same should be upheld. **Analysis and Determination;** The issue for determination is whether the appeal has merit. 1. **In the case of Ajode –vs- Republic Criminal Appeal No. 87 of 2004** the Court of Appeal sitting in Kisumu held inter alia that:- *“In law it is the duty of the first appellate court to weigh the same conflicting evidence and make its own inferences and conclusions but bearing in mind always that it has neither seen nor heard the witness and make allowance for that****”.*** 1. **In Kiilu & Another v Republic [2005]1 KLR 174,** the Court of Appeal stated thus: *“1. 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.* *2. 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. Pw1 testified that the CCTV at the premises captured nothing since there was a blackout that night.PW 2 testified that he couldn't recall the exact amount of what was stolen.PW 3 the complainants customer care officer testified that; *“One and we got inside the shop and we found it was messed as the phones displaces had been opened and where we got into our cubicles, the drawers were open. We also found the phones we left were missing so was the cash which was missing for mpesa and sales of that day was Kshs.273,631/- and Equity Agent which had a cash of Kshs.62,000/-.* *We had presented the records of the phones missing at the time. This is a record of the missing items from Telefonica 3 Gates which we found had been stolen.* *All the phones recorded therein were missing*.” 1. During cross examination Pw 3 testified that; “*There was a phone, Techno Spark 105G which we were told it was found and it was shown to me. If I saw it, I can identify it and it was in a box when it was stolen. I don't know if the said phone is in court and if I see the box I said I can identify it.”* 1. PW 4 testified that an inventory of the stolen phones was made at this point.There is no clear way of proving that the phones ever existed. 2. He testified that the investigating officer informed him that there was a phone, Techno Spark 105G which was found and it was shown to him and if shown he can identify it and it was in a box when it was stolen. 3. PW 5 testified that IMEl numbers were given by the director Mr. Karanja. I have the said inventory and I asked the CRIB who located one phone from among the stolen ones being a Techno Spark 105G of IMEI No. 354623320537328. 4. His evidence was that the CRIB officers were able to locate the phone which was at and they noted it was at Muji area and so they went for the person using the phone and they brought him to the station. They were able to recover the said phone herein and which according to the IMEI number and the phone itself it was the same as the one in the inventory of the owner of the shop. The second inventory is from the one recovered with the phone marked (PMFI 3). 5. During cross examination by the 1st Accused, PW 5 testified and confirmed that the investigations were not complete and that they were yet to recover all the stolen items. 6. Section 306 (a) of the Penal Code on Breaking into building and committing felony states: *"Any person who—* *(a)breaks and enters a schoolhouse, shop, warehouse, store, office, countinghouse, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is hot part of it, or any building used as a place of worship, and commits a felony therein; or...* *is guilty of a felony and is liable to imprisonment for seven years*. " 1. Section 279 (b) of the Penal code provides for other classifications of stealing as follows: *"If the theft is committed under any of the circumstances following, that is to say-* *(b) If the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; the offender is liable to imprisonment for fourteen years.* 1. No independent arresting officer from CRIB who allegedly tracked the phone testified. 2. No tracking report, call data, or expert evidence was produced to link the phone to the Appellant. The alleged recovery was therefore not proved beyond reasonable doubt, and the doctrine of recent possession was improperly invoked. 3. The elements of recent possession were not proven beyond reasonable doubt. 4. PW5 (the investigating officer) admitted that the phone was allegedly tracked by CRIB officers. He was not present during the actual arrest of the Appellant. None of the CRIB officers who allegedly tracked and recovered the phone testified. The prosecution did not tender any evidence to demonstrate why it did not call this critical witness. This witness would have told the court how the appellant was traced and how the alleged phone was recovered. 5. The witness would have been the best witness to produce all the tracking records, the devices that he used during the alleged phone tracking and the appropriate certificates that should be produced in court in cases where the prosecution is seeking to rely on electronic evidence. 6. The failure to call this witness and the none production of the electronic certificate denied the appellant the opportunity to cross examine the said witness and deprived him of the right to cross check the electronic records. 7. The relevant Section of the Evidence Act, Section 106A, provides that electronic records may be proved in court. The conditions upon which such electronic evidence would be admissible are provided for under Section 106 (B) of the same Act. Section 106 (B) (1) provides as follows: - *“106B(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.”* 1. Section 106B (2) provides that: - *“The conditions mentioned in sub section (1) in respect of a computer output, are the following- the computer output containing the information was produced by the computer during the period over which the computer was used to store or process the information for any activities regularly carried out over that period by a person having lawful control over the use of the computer.* *during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in ordinary course of the said activities;* *throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly was out of the operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and* *the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”* 1. Section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied, Section 106B (4) provides: - “*In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following –* *was produced identifying the electronic record containing the Statement and describing the manner in which it giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;* *dealing with any matters to which conditions mentioned in subsection (2) relate; and* *Purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge of the person stating it."* 1. This provision is clear that, for electronic evidence to be deemed admissible it must be accompanied by a certificate in terms of Section 106 B (4). 2. In the case of **R Vs Barisa Wayu Matuguda [2011] eKLR** the court observed that: *“. . . any information stored in a computer. . . which is then printed or copied. . . shall be treated just like documentary evidence and will be admissible as evidence without the production of the original. However, section 106B also provides that such electronic evidence will only be admissible if the conditions laid out in that provision are satisfied...”* *“...This provision makes it abundantly clear that for electronic must be accompanied by a certificate in terms of section 106B (4).”* evidence to be deemed admissible it. 1. The conviction that is arrived at in a case that has a component of electronic evidence is bound to collapse as is the case here given that the trial court failed to follow the provisions of Section 106B (4) of the evidence Act. 2. The IMEI number of the phone that was found with the appellant was not matched with the ones listed as stolen by the complainant. 3. The phone itself was not tendered as evidence. The make of the phone was in doubt. Phones vary in types models sizes series and colours. The phone features run into multiple possibilities. The prosecution did not tender any such evidence to the court during trial. No doubt these fine details were available to the prosecution. 4. The appellant was deprived of a critical opportunity it access these critical pieces of evidence which he would have probably harnessed in bolstering his defence as he enjoyed his Constitutional right to fair hearing under Article 50 of The Constitution. His opportunity to cross examine the prosecution witnesses on these fronts was taken away. 5. Had the prosecution tendered these critical details and evidence then the trial court would have arrived a different finding and not convict the appellant. I say so because given the court would have carried out an analysis of the foregoing and compared it with the stolen phone so as to find out whether they matched with the complainants’ records. 6. The trial Magistrate failed to fully consider the appellant’s evidence or place equal weight alongside the prosecution evidence thereby reaching an unsafe conclusion and the conviction. 7. Further to the above, the court notes PW 5 testified the investigations were still ongoing when he testified. 8. During cross examination by the 1st Accused, he confirmed that the investigations were not complete and that they were yet to recover all the stolen items. One is left to wonder how the trial court ended up convicting the appellant if the investigations had not been completed. The prosecution did not prove its case beyond reasonable doubt. 9. The conviction was not supported by any tangible evidence and the sentence meted out upon the appellant cannot stand in the circumstances. **The determination:** The appeal has merit. **Order**; 1. The conviction and the sentence imposed in Criminal Case No. E903 of 2023 are sets aside. 2. The appellant is hereby immediately release unless otherwise lawfully held. **Dated, signed and delivered virtually at Eldoret this 6th day of July, 2026** **.........................................** **J.M. CHIGITI (SC)** **JUDGE**