Republic v Claudine Amoo Omukaga

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E510 OF 2025** **REPUBLIC……………………………………………………….………..…..PROSECUTOR** VERSUS **CLAUDINE AMOO OMUKAGA…….……………………….......ACCUSED PERSON** **JUDGMENT.** **Introduction and Evidence** 1. The accused person was presented in court on 29th September 2025 and charged with the offence of Housebreaking contrary to section 304(1)(a) of the Penal Code. 2. The particulars are that the accused person on the 27th day of September 2025 at Alelesi village, Moding Location in Teso North Sub-County within Busia Count, broke and entered the house used as a dwelling house by Charles Wandamala c/o Boniface Oboi with intent to commit a felony therein. 3. The accused person pleaded not guilty to the charges and was admitted to Bond terms of Kshs. 50,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of three witnesses. 4. PW1 was one Dismas Emoposi a village elder who testified that on 27th September 2025 at 2000hours he was at home and was called by a member of community policing and informed that a woman had been found inside a house and there was an open window. That she was in the house of Boniface Oboi and who had a caretaker namely Charles Wandamala. He proceeded and checked that the door was locked from outside and the lady was holding a bag of maize. That she illuminated the accused person using a torch and she recognized her as a resident of his area. Charles opened the door on instruction of the assistant chief. That the accused person entered the house through a window which had a gap and which a person could use to access the window. They took the accused person to the police station. He also made reference to some photographs showing the houses belonging to Boniface Oboi and that used by Charles Wandamala. 5. On cross-examination she testified that the caretaker had no woman in the homestead but had one elsewhere. 6. There was no re-examination for this witness. 7. PW2 was the Investigating Officer one Kevin Wekesa who testified that on 28th September 2025 a case of housebreaking was minuted to him for investigations. That the suspect had been arrested by members of the public and she was in police custody. He interrogated the accused person who admitted to being found in the house. He called one Charles Wandamala, the caretaker of Boniface Oboi who told him that he had left to go to the shop at 1930hours and on coming back he heard noises in the chicken coop. He drew nearer and saw a lady in the house. He shut the door and called for help. He visited the scene and saw the window which the accused person had used to access the premises. He noted some footprints on the ground and photographs were taken. He processed the accused person for arraignment in court. 8. On cross-examination he testified that the accused person was brought to the police station with a manila bag and she had an intention to steal. That the compound has dogs which had been locked. That he could not tell whether there was a woman in the homestead and that Charles denied being in a relationship with her. 9. There was no re-examination for this witness. 10. PW3 was one Charles Wandamala who testified that he was employed as a caretaker for Boniface Oboi. That on 27th September 2025 at 1930hours he had gone to the shop and on getting back he turned on security lights. He also heard noise from the store. He illuminated the store using a torch and he found someone inside the store. He closed the door and went to check the window which was at the back. He further illuminated inside the store and saw a woman with a manilla bag. That the woman was a neighbor and she had no permission to be inside the store. That he assumed that she entered through the window. That they had no dispute with complainant. 11. On cross-examination he testified that the homestead has a woman who was in Kisumu and that there were dogs which were ordinarily set free at 2100hours. That she was not taken to the police station with any exhibit. 12. In re-examination she testified that the accused person had not taken anything from the house and thus there were no exhibits to take her to the police station with. 13. This marked close of the prosecution’s case and pursuant to a ruling delivered on 23rd July 2026, the accused person was placed on her defense under Section 211 of the Criminal Procedure Code. The provisions of section 211 having been explained to the accused person, she chose silence and opted to await the judgment of the court. **Analysis and Determination** 1. Prior to analyzing the facts as presented, a preliminary issue arises and that is whether the charged as framed is consistent with the evidence on record. The accused person was charged with housebreaking contrary to section 304(1)(a) of the Penal Code. The particulars allege that on 27 September 2025 the accused broke and entered a house used as a dwelling house with intent to commit a felony therein. The particulars, however, do not allege that the offence was committed at night. 2. The issue arises because the evidence of all the prosecution witnesses places the alleged breaking and entry between 1930 hours and 2000 hours. 3. Section 304(1)(a) of the Penal Code creates the offence of housebreaking where a person breaks and enters a building used as a human dwelling with intent to commit a felony therein. Section 304(2) provides that where the offence is committed in the night, it is termed burglary and attracts a higher penalty. Section 4 of the Penal Code expressly defines “night” or “night-time” as the interval between 6.30 p.m. and 6.30 a.m. 4. Consequently, the evidence that the alleged offence occurred between 7.30 p.m. and 8.00 p.m. places it squarely within the statutory definition of night. The question, therefore, is whether the court can properly convict the accused of housebreaking as charged when the prosecution evidence consistently establishes the additional circumstance which, in law, makes the offence burglary. 5. Section 134 of the Criminal Procedure Code requires a charge to contain the specific offence together with particulars sufficient to give the accused reasonable information concerning the nature of the offence. The Court of Appeal in **Yongo v Republic [1983] KLR** stated that a charge is defective where, inter alia, it does not accord with the evidence given at trial or where it gives a misdescription of the alleged offence in its particulars. The Court further held that where the evidence reveals a variance requiring alteration of the charge, the proper course is an amendment under section 214 CPC, with the attendant safeguards to the accused. 6. The principle remains good law. In **JM v Republic [2025] KECA 694 (KLR)**, the Court of Appeal recently reiterated the Yongo test and emphasised that the offence and its particulars must be in harmony with the evidence. 7. In the present case, the discrepancy is not merely a minor variance in the time stated in the particulars. The time is legally significant because it determines the character of the offence under section 304. It is important that the accused was not charged with burglary, and the particulars did not allege the essential distinguishing circumstance of night-time commission. The court cannot, at the stage of determination, simply transform the charge of housebreaking into one of burglary on the basis of the evidence. As recognised in Yongo, where the evidence at trial does not accord with the charge, the statutory mechanism for correcting the charge is section 214 CPC. 8. I therefore find that there is a material variance between the charge as framed and the evidence adduced by the prosecution. The prosecution had the opportunity, pursuant to section 214 of the Criminal Procedure Code, to seek an appropriate amendment once the evidence disclosed the night-time element. No such amendment having been made, the court would be acting contrary to the safeguards governing criminal charges if it were to convict the accused for the aggravated offence of burglary on a charge of housebreaking. 9. Having addressed the preliminary issue, I now turn to the evidence. The prosecution was required to prove beyond reasonable doubt that the accused broke and entered the dwelling house and that, at the time of such breaking and entry, she did so with intent to commit a felony therein. While PW1, PW2 and PW3 placed the accused inside the premises at about the material time, their evidence does not satisfactorily establish the manner in which she gained entry. PW1 stated that she entered through a window, while PW2 and PW3 essentially inferred or assumed that she accessed the premises through the window. No witness saw her actually break the window or enter through it, and no evidence was adduced as to the condition of the window before the alleged incident or any damage occasioned to it. The mere fact that the accused was found inside the premises, does not establish the statutory ingredient of breaking. 10. More importantly, the evidence does not establish beyond reasonable doubt the requisite intent to commit a felony therein. The accused was found holding a manila bag, but no property belonging to the complainant was recovered from her, no stolen property was identified, and no evidence was led demonstrating what felony she intended to commit. PW3 expressly stated that nothing was taken from the premises, while the alleged bag was not produced as an exhibit. The evidence therefore leaves the court with suspicion, rather than proof beyond reasonable doubt, as to the accused's purpose in being inside the premises. As was stated in **Sawe v Republic [2003] KLR 364**, suspicion, however strong, cannot be the basis of a criminal conviction. The prosecution having failed to establish the essential ingredients of breaking and entry with the requisite criminal intent, the charge of housebreaking under section 304(1)(a) has not been proved beyond reasonable doubt. The accused is therefore entitled to an acquittal. 11. Accordingly, the accused person is acquitted on the offence of Housebreaking contrary to Section 304(1)(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 10TH DAY OF SEPTEMBER, 2026.** In the Presence of Claudine Amoo Omukaga- The Accused Person and Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 10.09.2026