https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7387

Republic v Asiachi (Appeal E003 of 2024) [2026] KEHC 7387 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7387 (KLR) Republic of Kenya In the High Court at Kakamega Appeal E003 of 2024 S Mbungi, J May 26, 2026 Between Republic Appellant and Geofrey Makanga Asiachi Respondent (Being an appeal against the acquittal of the Respondent arising from the Judgment of the senior Resident Magistrate Hon. Akee in Criminal case number 116 of 2019 delivered at Kakamega Law Court) Judgment 1.The Respondent herein had been accused and charged with the offence of House breaking contrary to section 304 (1) of the penal code. The particulars of the offence were that Geofrey Makanga Asiachi on diverse dates between the month of November and December 2018 at Matende village, Shireree Sub-Location, Bukhungu location in Kakamega Central sub-county within Kakamega County jointly with others not before court broke and entered the building used as a dwelling house of Maureen Muhati with the intent to commit theft therein. 2.On the second count he was charged with the offence of destroying evidence contrary to section 116 as read with section 36 of the penal code. the particulars being that Geofrey Makanga Asiachi on the diverse dates between the month of November and December 2018 at Matende village, Shirere Sub- Location Bukhungu location in Kakamega Central Sub-county within Kakamega County jointly with others not before court knowing that the electrocution wires were required in evidence in a judicial proceeding wilfully removed them with intent to prevent them being used in evidence. 3.The prosecution called three witnesses in support of their case. At the close of the case, the trial court found that the prosecution had failed to prove its case to the required standard and acquitted the accused on both counts. 4.The prosecution being dissatisfied with the judgment of the trial court filled the appeal based on the following grounds;a.The learned trial magistrate erred in fact and in law in finding and/or holding that the Respondent was not guilty of the offences charged when from the totality of the evidence the prosecution had established guilt of the accused persons to the required standard of proof.b.The learned trial magistrate erred in law and fact by not considering the fact that the breaking and entering charge had been proved because the point of access to the complainant’s house was through the Respondents person bedroom wall.c.The learned trial magistrate erred in law and in fact in finding that the prosecution’s case was based on suspicion yet the prosecution had presented strong circumstantial evidence connecting the Respondent to the charges.d.That the trial court failed in fact and in law to find that the defence was a mere denial which did not dislodge the prosecution’s casee.That the trial magistrate erred in law and in fact in arriving at a contradictory judgment that the charge of breaking and entering had been proved but failed to link the Respondent to the charge yet the point of entry to the complainant’s house was through the Respondent’s bedroom which directly connected the Respondent to the crime. Evidence in brief 5.PW1, Maureen Muhati recalled that on 3/1/2019 she had left Nairobi to Kakamega with her two children and house help and a person who helped them carry their luggage’s. She stated that when she arrived at her house she found her house disarranged, seats on top of the table, the electric wires tampered with and pulled out. She claimed that she had a similar case with the accused brother who had electrocuted her and the accused had been charged with putting the wires which had initially been disconnected by KPLC for hanging loosely. 6.She claimed that she called the caretaker and the accused wife what had happened although none of them knew wo was responsible. She later informed the village elders and went to report the incident at Kakamega police station at around 9.00 a.m. and was issued with an OB No. and accompanied by officers to her house. She claimed that in the house they found a big hole that had been drilled from the accused person’s house through to her house. 7.She produced a photo of the ceiling board which showed a block was removed from the whole and a tool box on her side. She denied having any issues with the accused claiming that the person who broke into her house came to tamper with the exhibits in the pending case against her husband and that their motive was to scare her away. 8.According to the witnesses, two people could pass through the hole and the person who broke into the house was disarranged and the police was able to take photos she produced the photos of the house marked MF1 (a-f). 9.She avers that she was sure the accused person was the one who broke into her house stating that it was her brother in law and claimed that nothing was broken or stolen. 10.At cross examination by Mr. Mukami, she stated that she is a master’s student and stays in Nairobi and pays her school fees. She stated that the accused is her brother in law and that she had a case with her husband who had tried to electrocute her and that the wires that were in her house were exhibits. she claimed that the outer door to the house was intact and the padlock was not tampered with. 11.She stated that she called several people including the village elders to witness and stated that the accused was not in the house. 12.PW2 was Jefferson Murono Barasa. He recalled that on 3/1/2019, he was at Kakamega Bus stage looking for work and he helped a woman carry her luggage to Matende and when they arrived at her house, he claimed there were chairs on the table and a hole in the ceiling and that there was light from the hole which had 2 stones removed. He stated that there was a man brushing shoes outside and the door was closed. He was shown photos MF1 were the blocks were removed, MF1(b) – seats and chairs and MF1 (C) which was door from inside the room. 13.At cross- examination, he stated that he was paid Kshs. 250 and that they arrived at 6.30 a.m. he claimed that he did not know who cut the wires or who put them there and denied knowing the complainant. 14.PW3 was Corporal Caleb Wandera No 83308, the investigating officer who took over from the initial investigating officer Stephen Juma. He claimed that they received a report on 3/1/2019 a case was reported to them of a house break. he testified that the main aim of the breaking was to destroy evidence which was meant to electrocute the complainant. He stated that there was a hole between the accused house and the complaint’s house and that the complainant’s house had 2 chairs and a table used to escape. 15.At cross examination, the witness denied producing a sketch map. he testified that the accused and complainant are brother and sister in law and that the house of the complainant belonged to the accused father. he testified that he went to the crime scene on 3/1/2019 and that the house was broken into between November and December and that there was an eye witness who testified and that the accused was charged with others not before court. He testified that the wires were exhibits in another matter. 16.On re-examination. He testified that the house was being occupied by the complainant during the break in. 17.The prosecution closed its case and the accused was placed to his defence. 18.DW1 was Geoffrey Makanga. He testified that between November and December he went home to Bunyore and came back in January. he denied tampering with any criminal evidence and claimed that the parties were his brother and the complaint who was his wife and the case had been dismissed. 19.He testified that his father belonged to his father and that they had bad blood between him and the complaint and that they had many cases with the complainant. 20.At cross examination he confirmed that the complaint was in occupancy of the house and a judgment against the other case was entered while this case was pending. he denied being party to the offence. 21.At the close of the defence’s case, the court analysed their case and on whether the prosecution had proved against house breaking to the required standard and found that the prosecution had proved its case to its required standard and acquitted the accused person. 22.Being dissatisfied by the judgment of the court, the prosecution filed the following appeal. 23.The appeal was canvased by way of written submissions. Appellant’s submissions 24.The Appellant filled their submission dated 27th June 2025 where they submitted that the trial court erred in law and fact by acquitting the Respondent despite the evidence on record demonstrating that he was responsible for the offence. The principal ground of appeal was that the trial court failed to properly evaluate the circumstantial and documentary evidence which linked the Respondent to the breaking and entering of the complainant’s house. 25.The appellant, being the prosecution argued that the trial court overlooked crucial evidence showing that access to the complainant’s house had been gained through a hole drilled from the Respondent’s bedroom wall into the complainant’s house. They submitted that the existence of the hole, together with the removal of electrical wires from the complainant’s house, pointed to the Respondent’s involvement in the offence. The Appellant further contended that the electrical wires constituted important evidence in another criminal case involving the Respondent’s brother, namely Criminal Case No. 2903 of 2016, in which allegations of attempted electrocution of the complainant had been made. 26.The Appellant maintained that the Respondent’s conduct after discovery of the hole was highly suspicious. It was argued that if the Respondent had not been responsible for drilling the hole, a reasonable person would have reported the matter to the police. The Respondent’s failure to make any report regarding the existence of the hole in his bedroom wall was said to strengthen the inference of his guilt. 27.The Appellant further relied on photographic and oral evidence adduced during the trial. Counsel submitted that photographs marked for identification, including photographs of the hole in the wall, the damaged ceiling board, the broken door and the dangling electrical wires, corroborated the complainant’s account. The testimony of PW2, who personally observed the hole in the wall and the disarray within the complainant’s house, was also relied upon as independent evidence supporting the prosecution’s case. 28.In addition, the Appellant referred to the investigating officer’s testimony that the break-in was intended to destroy evidence relevant to the pending criminal proceedings involving the Respondent’s brother. It was submitted that this evidence provided a motive for the commission of the offence. 29.The Appellant acknowledged that the trial court correctly found that the offence of breaking and entering had been proved through photographic evidence and witness testimony. However, it was argued that the court erred in concluding that the Respondent had not been sufficiently connected to the offence. The Appellant contended that the cumulative circumstantial evidence irresistibly pointed to the Respondent as the perpetrator. 30.In support of the appeal, the Appellant relied on the case of Mwita v Republic (2004) 2 KLR, where the court held that in cases based wholly on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt. The Appellant submitted that the trial court misapplied that principle because the evidence on record established circumstances that were inconsistent with the Respondent’s innocence, particularly: The existence of a large hole on the common wall separating the complainant’s house from the Respondent’s house; andThe Respondent’s failure to lodge any complaint or report regarding the suspicious hole found in his bedroom wall. 31.Accordingly, the Appellant urged this court to find that the trial court erred in its assessment of the circumstantial evidence, allow the appeal, set aside the acquittal, and find that the evidence sufficiently connected the Respondent to the commission of the offence. Respondent’s Submission 32.The Respondent submitted that the prosecution failed to discharge the burden of proof required in criminal proceedings. Reliance was placed on Section 107(1) of the Evidence Act, Cap. 80 Laws of Kenya, which provides that he who alleges must prove the existence of the facts upon which he seeks judgment. 33.The Respondent argued that the burden remained throughout on the prosecution to establish the charges against him beyond reasonable doubt and never shifted to the accused person. In support of this proposition, reliance was placed on Woolmington v DPP [1935] UKHL 1, where it was held that the duty of proving the guilt of an accused person rests upon the prosecution. 34.The Respondent further submitted that none of the prosecution witnesses witnessed the break-in or placed him at the scene of the crime. He referred to the complainant’s testimony in which she stated under oath that she did not see the accused cut the padlock and that no one witnessed him committing the alleged act. The complainant also testified that she had no disagreement with the accused and that they enjoyed a cordial relationship. 35.It was contended that the prosecution’s case was founded entirely on circumstantial evidence without any eyewitness testimony or documentary evidence connecting the Respondent to the offence. Although the complainant sought to associate the Respondent with the offence on account of a hole in the wall adjoining their respective houses, the Respondent maintained that he was away in Bunyore during the material period and only returned in January. 36.The Respondent therefore argued that the circumstantial evidence relied upon by the prosecution failed to satisfy the legal threshold required for a conviction. In support of this argument, reliance was placed on Mwita v Republic (2004) 2 KLR, where the court held that in cases depending exclusively on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. 37.On the basis of the foregoing authorities and statutory provisions, the Respondent urged the appellate court to find that the prosecution had failed to prove its case beyond reasonable doubt and to uphold the trial court’s acquittal. Analysis and determination 38.This being a first appeal, this Court is enjoined to re-evaluate the evidence afresh, while bearing in mind that the trial court had the advantage of seeing the witnesses. An appeal against acquittal succeeds only where the trial court’s decision is shown to be unreasonable, based on a misdirection, or perverse. The standard remains proof beyond reasonable doubt. 39.The respondent had been charged with two counts. The first offence was breaking into a house. Section 304(1) of the Penal Code states that “Any person who (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or (b) having entered any building... with intent to commit a felony therein... breaks out thereof, is guilty of the felony termed housebreaking...” and is liable to 7 years’ imprisonment; 10 years if at night for burglary. 40.From the evidence on record the Appellant called three witnesses in support of their case. PW1, the complainant, testified that upon returning home on 3/01/2019, she found her house disarranged, chairs placed on the table, electrical wires tampered with, and a hole in the wall separating her house from the Respondent’s side. Her evidence strongly suggested that unlawful entry had occurred and that the scene had been interfered with. Her evidence was corroborated by PW2 who confirmed that there was a hole and that the house had been disarranged. Pw3 was the police who investigated the break in incident who stated that the intended to destroy evidence in a pending dispute. 41.It was not disputed that the unlawfully incident occurred. This was corroborated by the witnesses as well as the photos that were presented in court. The main issues for determination by the court was on the issue of who committed the offence and the linkage between the offence and the accused person. 42.The trial court was to scrutinize the evidence on record and find out whether the circumstantial evidence excluded any reasonable hypothesis other than the Respondent’s guilt. In Mwita v Republic (2004) 2 KLR, the court held that circumstantial evidence must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis than that of guilt. 43.Similarly, the court of Appeal in Abanga alias Onyango v Republic Cr. Appeal No. 32 of 1990, stated that in substance that the inculpatory facts must be firmly established, should unerringly point to the accused, and should form a chain so complete that there is no escape from the conclusion that the accused and none else committed the offence 44.The evidence overwhelmingly proved that housebreaking occurred according to the evidence presented at the trial court, the outer door and padlock were untouched. There was a hole that was drilled from the Respondent’s side to the complainant’s house, there was evidence that the house was in disarray, tampered wires, and there was evidence from the photographs presented in court. These factors were rightly highlighted by the trial magistrate leaving the main issue of who was responsible and whether the Respondent was linked to the whole ordeal. The appellants/ prosecutions case was based on the circumstantial evidence as was laid out in the case of In Mwita v Republic (2004) 2 KLR (Court of Appeal), 45.In the case of Sawe v Republic (2003) KLR 364 and Teper v The Queen [1952] AC 480, the court stated that it required a complete, unbroken chain of circumstances pointing irresistibly to guilt, with no co-existing circumstances weakening the inference. 46.In applying the principles held in the above case, what is not in dispute Was that the hole was drilled from the Respondent’s bedroom wall into the complainant’s house and that the Respondent occupied the house at the time of the incident. He however failed to report this obvious breach in his own wall despite the fact that the complainant was his sister in law. And given the fact that he himself had admitted that there was bad blood between him and the complainant. According to the complainant, the wires that were missing were said to be evidence in a family dispute where the accused brother and complainant’s husband was accused of trying to electrocute the complainant. 47.That being said, it was obvious that the Respondent did have motive and opportunity to commit the offence. His alibi that he was IN Bunyore at the time of the offence was not corroborated neither did it explain how the hole between his house and the complainant was made. PW2’s evidence and photographs provided independent corroboration. 48.However, upon critical analysis there was no direct evidence of the Respondent drilling the hole or removing the wires. No fingerprints, tools recovered from him, or eyewitness. The complainant admitted in her evidence that she did not have any bad blood with the accused and further that he was not present when she discovered the hole. 49.She stated that there were other family members in the compound including her sister in law since it was a shared compound any one could have accessed the Respondent’s house. The hole’s existence, while suspicious, does not irresistibly exclude other hypotheses in the absence of further corroborative evidence tying the Respondent personally to the act during the specific period. 50.The trial court found that although the actus reus of housebreaking was proved, the evidence fell short of linking this particular Respondent beyond reasonable doubt. In Republic vs. David Wang’ondu Githuru (2018) the court held that suspicion, however strong, is not proof. The defence of alibi, though weak, raised reasonable doubt when combined with the lack of direct linkage. 51.On the second count where the Respondent was accused of destroying evidence, the same evidentiary gap equally applies. From PW1 evidence that the respondent’s brother was accused of trying to electrocute her and that there was a pending case in court, it proved that there was an intention to destroy evidence which were the wires in place which from my understanding can prove that there was motive however just like the first count, the prosecution failed to link the respondent to the offence other than strong suspicion, the standard of proof in my view was not proved beyond reasonable doubt. 52.This court having re-evaluated the evidence, finds no error in the trial magistrate’s conclusion that the prosecution failed to prove the charges against this Respondent beyond reasonable doubt. The circumstantial evidence, though compelling in many respects, falls short to convict the Respondent. 53.That being said the appeal is accordingly dismissed. The acquittal is upheld. 54.It is so ordered. 55.Right of Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 26TH DAY OF MAY, 2026.S.MBUNGIJUDGEIn the Presence of:-CA: Velma/ZildaMs Rabuto for the Respondent present.Ms Chala for ODPP.