https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/241

Republic v Egesa (Criminal Case E284 of 2025) [2026] KEMC 241 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEMC 241 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E284 of 2025 AK Njeru, SRM June 29, 2026 Between Republic Prosecutor and Jonathan Egesa Accused Ruling 1.Accused has been charged with the offence of stealing contrary to section 268 as read with section 275 of the Penal Code. Particulars are that on the 11th August 2025 at Sigalame Sublocation in Samia Sub County within Busia County, accused stole 5 tonnes of sand valued at Kshs 7,000 the property of Simon Wandera Musungu. 2.Accused denied the charge and the prosecution presented its evidence as follows: 3.PW1 Simon Wandera Musungu, a sand harvester stated that on the material day he took his child to school and went to harvest sand. At around 2.00pm, he returned home leaving his sand by the shores of the lake. Later at around 5.00pm, he returned to the river to take a bath and that is when he realized the sand he had harvested and left by the shoes of the lake was missing. he asked those nearby who had taken away his sand and they all informed him accused had. He confronted accused with the same and accused admitted to selling the same and promised to pay the value equivalent of the same being Kshs 7,000. Accused failed to pay and hence the report made. 4.PW2 Vincent Makanda testified on oath that he was a sand harvester as well. That on the material day he harvested sand with PW1 and they left the same at the shore before leaving for home around 2.00pm. they left many of their fellow harvester there. Later around 4.00pm, he received information from PW1 that accused had taken away their sand and sold the same. accused admitted to the accusation and promised to refund the proceeds of the sale or in the alternative, harvest sand and return the same to them. on 4th September, accused had still not made good his promise. They reported the matter and accused was arrested. they did not see him sell the sand. The fellow sand harvesters gave them the said information. Accused received the money from the proceeds of the sale through his phone. 5.PW3 59555CPL Moses Imbongo, the investigating officer stated that on 14th August 2025, the complainant herein reported this matter to the police in the company of PW2 and one Eugine Baraza. They reported that accused had stolen their sand after they left it at River Suo after harvesting the same and leaving for their homes. They said the incident took place on 11th August 2025. Accused then promised to pay for the same but failed to do so. Accused was arrested, witness statements written and charged with the offence herein. 6.The issue for determination is whether or not the prosecution has established a prima facie case against the accused warranting him to be placed on his defence. 7.“Prima facie” is a Latin word defined by Black’s Law Dictionary, 11th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted” . “Prima facie case”is defined by the same dictionary as “The establishment of a legally required rebuttablepresumption”.In Republic v AbdiIbrahim Owl [2013] eKLR a prima facie case was defined as “To digest this further, in simple terms, it means the establishment of arebuttal presumption that an accused person is guilty of the offence he/she is charged with.”In Republic v Konde [2025] KEHC 16785 (KLR) the court held that “ Therefore, the question that this Court must contend with and answer at this stage, is whetherbased on the evidence before this Court, the Court after properly directing its mind to the lawand the evidence may convict if the accused chose to give no evidence” 8.At this stage, the court is not required to determine the guilt or innocence of the accused. However, it must be satisfied that there is credible evidence connecting the accused to the commission of the offence. 9.The only evidence implicating the accused consists of hearsay statements and an alleged admission that was not independently proved. The prosecution failed to call the material witnesses who allegedly witnessed the theft or sale of the sand. Consequently, the evidence on record does not establish a rebuttable presumption that the accused committed the offence charged. 10.In the circumstances, I find that the prosecution has failed to establish a prima facie case against the accused. The evidence adduced, if left unchallenged, would not sustain a conviction. 11.The disposition is therefore that accused is acquitted of the charges herein pursuant to section 210 of the Criminal Procedure Code. He is hereby set at liberty forthwith unless otherwise lawfully held.Right of appeal within 14 days. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 29TH DAY OF JUNE 2026.HON. ANNE NJERUSRM