Republic v Ambani (Criminal Case E522 of 2025) [2026] KEMC 319 (KLR) (16 July 2026) (Judgment)

Republic v Ambani (Criminal Case E522 of 2025) [2026] KEMC 319 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEMC 319 (KLR) Republic of Kenya In the Malaba Law Courts Criminal Case E522 of 2025 AZ Ogange, RM July 16, 2026 Between Republic Prosecutor and Walter Ambani Accused Judgment Introduction and Evidence 1.The accused person took plea on 2nd October 2025 on the charge of Stealing Motorcycle contrary to Section 278(A) of the penal code. The particulars are that on the 14th day of March 2024 at Roadblock area within Busia County, stole one motor cycle registration number KMEZ 643F make TVS star 100cc red in color valued at Kshs. 40,000/= the property of Desterious Mukwambo. 2.The accused person pleaded not guilty to the charges and was admitted to bond terms of Kshs. 60,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of four witnesses. 3.PW1 was the complainant Desterios Mukwambo who testified that on 14th March 2024 at 1900hours he was on his way home when he met Suleiman Mukwambo seated without a motor cycle which he used to use for business. That the motor cycle was Reg No. KMEZ643F. That his brother told him that he had given it to Walter to ferry a customer to Kolanya. He followed up the following morning on his motor cycle and established that it had still not been returned. He reported to the Chairperson of their stage. He continued following up including from the mother of the accused person and in September 2024 he posted on social media about his missing motor cycle and the accused person. He received information that the accused person had been seen in Chavakali and the accused person was arrested and remanded at Chavakali Police Station. He told the court that he had an agreement dated 14th November 2023 evidencing that the motor cycle was his. 4.On cross-examination he testified that he knew the accused person very well and that there were witnesses who saw him being given the motor cycle. That he was not present when the accused person took the motor cycle. That he lost the motorcycle on 14th March 2024 and that the accused person went into hiding thereafter. That he did not have a log book but he had the agreement for sale. 5.There was no re-examination for this witness. 6.PW2 was one Suleiman Mukwamba who testified that on 14th March 2024 he was at the motorcycle stage when his friend borrowed the motor cycle that he had been given by his brother to ride. That his friend informed him that he was ferrying a client to Kolanya. That his brother came and asked where the motor cycle was and he informed him that he had given it out to his friend. That the accused person was later traced in Chavakali through an informer and he was remanded at Chavakali Police Station That the motor cycle belonged to his brother and he had not given the accused person permission to go with it to Chavakali. That he had known the accused person for one and a half years. 7.On cross-examination he testified that he was employed to ride the motor cycle which the accused person borrowed on 14th March 2024. That he did not know the client that the accused person was ferrying. That he had an eye witness who saw him give the accused person the motor cycle. That he knew the accused person very well and trusted him and that is why he gave him the motor cycle. 8.There was no re-examination for this witness. 9.PW3 was one Ian Etyang who testified that on 14th March 2024 he was at RoadBlock area in Malaba when the accused person borrowed Suleiman a motor cycle to ferry a client to Kolanya. That upon ferrying the client, he was to be paid Kshs. 300/= and remit Kshs. 100/= to Suleiman. That he knew Desterios as the Owner of the motor cycle which was make TVS star and red in color. That two hours after collecting the motor cycle the accused person had not returned and to date the motor cycle has not been found or returned. That there was a period which he was in Kitale and he saw the accused person on the motor cycle and tried stopping him but he sped off. 10.On cross-examination he testified that he saw the accused person in May 2025 and the accused person had taken the motor cycle in March 2024. That he did not take a photograph of the accused person. That he saw the accused person in March 2024 and was sent to negotiate on his behalf with Suleiman. 11.There was no re-examination for this witness. 12.PW4 was one CPL Erick Omboga Nyaragi who stood in for PC Fredrick Yegon who was indisposed at the time of hearing. He testified that a case of stealing motor cycle was reported at Malaba Police Station the same being Registration Number KMEZ 643F theft which had occurred on 14th March 2024. That the complainant gave the accused person a motor cycle to ferry a customer to Kolanya. That the accused person failed to return the motor cycle fact which prompted the complainant to visit the accused person’s home and his mother promised to inform the accused person to return it. That the accused person never returned the motor cycle and was seen in Kitale doing boda boda work and an initial report was made at Malaba Police station on 27th September 2025. That the complainant further got information from Chavakali where the accused person was arrested and taken to Malaba Police Station for arraignment. There was an agreement showing ownership of motorcycle and which was produced as EXH 1 before the Court. 13.On cross-examination he testified that investigation was well done and the accused person was arrested in Chavakali. That at time of arrest he did not have the motor cycle and that the factors considered was how he was given the motorcycle and went missing. 14.There was no re-examination for this witness. 15.Pursuant to a ruling delivered on 26th February 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give unsworn evidence but on the date of hearing he elected to give sworn evidence without calling any witness. 16.He told the court that on 14th March 2024 he was at Malaba RoadBlock area where the complainant lent him a motor cycle and he returned it after two days. That his mother told him that Suleiman was looking for him and told him that the motor cycle was lost. That after one year while in Vihiga he got information online that someone was looking for him and on 28th August 2025 people went to his home looking for a motor cycle and he was taken to a Police Station in Chavakali and charged in court. That he did not steal motor cycle as he was not found with it. 17.On cross-examination he testified that he borrowed the motor cycle of Desterio and he was arrested in Vihiga. That he however returned the motor cycle and there were many people present when he returned it. 18.This marked close of the defense case. The accused person sought for proceedings to file submissions but ultimately abandoned this request and the matter was reserved for judgment. Analysis and Determination 19.Stealing is defined in the Black’s Law dictionary 8th Edition as:“To take (personal property) illegally with the intent to keep it unlawfully”. 20.The definition of stealing as found in Section 268 of the Penal Code is:“A person who fraudulently and without claim of right takes anything capable of being stolen on fraudulent converts to use of any person, other than the general or special owner thereof any property, is said to steal that thing or property.” 21.In Josphat Kimutai v Republic [2020] eKLR the High Court sitting on appeal affirmed the correctness of the trial magistrate’s court decision on conviction where the Court held as follows: -ConvictionMotor Cycle was stolen by the appellant who had been employed by the complainant who had given him the bike to deliver cakes. Appellant lived in the compound where the Bakery was with other employees. The date when the motor cycle disappeared is the same date when the appellant disappeared.Complainant and other employees conducted a search and upon consultation the appellant was arrested by the complainant and other civilians in possession of the motor bike. The complainant was able to prove ownership of the cycle, and he identified the appellant as his employee and also the cycle by registration number and ownership documents. Accused betrayed trust of the employer. The accused betrayed trust of the complainant. Doctrine of recent possession. The appellant is the one who had the cycle last and he was arrested with the same. Tracks showed cycle removed through a gap in the fence from the place where it used to be parked at night. There was no forceful entry. The appellant had the key to the motor cycle and he dishonestly deprived the complainant of the cycle by driving it away and not returning it. 22.In affirming the conviction hereinabove the high court stated as follows:-6.The court considers that the appellant was rightly convicted, the evidence of the complainant PW1 being corroborated by that of the accused’s colleague at work and employee of the complainant PW2, and the accused’s defence did not raise any reasonable doubt as to his involvement in the theft of the items stolen from the complainant in Count No. I and from PW2 in the Count No. II. 23.Having considered the evidence before court and guided by the authority hereinabove, the prosecution’s case turns on whether it proved beyond reasonable doubt that the accused person fraudulently converted the motor cycle after lawfully obtaining possession. Ownership is not in dispute, having been proved by the agreement dated 14th November 2023. Equally there is concurrence in the evidence of PW1, PW2 and PW4 that the accused person borrowed the motor cycle on 14th March 2024 to ferry a client to Kolanya and failed to return it. The accused person alleges that he returned the motorcycle at 1900hours in the presence of several people though he did not call any witness to support that claim. PW1 testified that he later went to the accused person’s home where the accused’s mother promised to tell him to return the motor cycle while the accused person maintains that PW2 later informed while at his home that the motor cycle had been lost. 24.What is particularly troubling is the chronology of reporting and arrest. If the motorcycle disappeared on 14th March 2024, it becomes difficult to reconcile this date with the evidence of the investigating officers evidence that a formal report was made on 27th September 2025, over one year later this is despite witnesses alleging efforts were made to trace the accused. 25.The accused person says he was arrested on 28th August 2025 while the charge sheet states 30th September 2025, creating uncertianity on the circumstances and sequence of his apprehension. While his arrest in Chavakali is admitted and supports PW1, PW2 and PW4 on the fact, the prosecution’s attempt to connect him with the continued possession through PW3s alleged sighting in Kitale is uncorroborated, unsupported by photographs or any independent witness and therefore carries little evidentiary weight. 26.Crucially, the accused person was never found in possession of the motor cycle at arrest despite allegations of continued use of it as a boda boda. In criminal law, suspicion, however strong, cannot substitute proof. The unexplained delay in reporting, contradiction of arrest dates, uncorroborated Kitale sighting and the alternative possibility that the motor cycle may have been lost rather than stolen all create reasonable doubt. The defense though not without its weaknesses introduced a plausible narrative that was not effectively displaced by the prosecution. Those evidentiary gaps cannot be filled by the court through conjecture or speculation, for to do so would be to descend into the arena of evidence. The doubt thereby cast must, in accordance with the cardinal principle of criminal justice resolved in favor of the accused person. 27.The upshot of my findings therefore is that, the accused person is acquitted of the charge of Stealing Motorcycle contrary to Section 278(a) of the Penal Code under Section 215 of the Criminal Procedure Code. JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 16TH DAY OF JULY, 2026.A.Z. OGANGERESIDENT MAGISTRATE16.07.2026In the Presence of Walter Ambani, the accused person present in person andMr. Rotich Prosecution CounselCourt Assistant: Paul Otieno