https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/407

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT AT LAMU** **CRIMINAL CASE. NO. E011 OF 2026.** **REPUBLIC………………………………………………………………………..PROSECUTOR** **-VERSUS-** **MOHAMED TUMU HUSSEIN…………..………………………………..ACCUSED PERSON** **JUDGEMENT.** 1. **INTRODUCTION.** 2. The facts surrounding this case are that on 22/1/2026 at around night hours at Faza location in Lamu east the accused stole Kshs.50,000/= from one Mohamed Thabiti. It is on the basis of these facts that the accused is charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code. 3. 4 witnesses were called to support the prosecution’s case and at the close of their case, this court made a finding that the accused had a case to answer and he was placed on his defence. The accused gave sworn testimony and did not call any witness. 4. I have considered the testimonies of both sides in this judgment. **The Prosecution’s case.** 1. It was the evidence of the complainant that on 22/1/2026 the accused stole his Kshs.50,000/= and left Kshs.10,000/=. He suspected it was the accused because he had informed him that he would travel to Mombasa on the material date. He woke up and found that the accused had already left and the complainant went about his business until later in the day when his sister asked him for money and when he went to the suitcase where he had kept his money he only found Kshs.10,000/= and Kshs.50,000/= was missing. 2. He immediately called the accused but he realized he had been blocked. He sent messages but those too were ignored and he was able to see him when he was arrested by police. 3. Pw 2, the complainant’s father Ali Somoe Bwana in his testimony stated that they used to stay with the accused and he was informed of the intended journey the accused was to take and he even assisted him in booking the vehicle. On the day the accused was to travel, the driver called him to find out why he had not arrived and he informed him that he was not the one travelling but the accused. He went to the room and found he was not there. Later that morning Pw 1 informed him that Kshs.50,000/= had been stolen from his suitcase. 4. Pw 3 and 4 were arresting and investigating officers and heavily relied on the testimony of the complainant. **Defence case.** 1. The accused in his defence denied the charge and stated briefly that indeed on the material date he travelled to Mombasa and left at 4am and 3 days later he called the complainant and informed him of the intended engagement he was planning but the complainant and his family were not happy with the engagement as they wanted the girl the accused intended to engage but she had refused and it is because of that in his view that the complainant has decided to frame him with this charges to scatter his ambition . it was his testimony that he did not know where the complainant kept his money and that the complainant’s room is always locked hence he had no access to the room unless the complainant was present. 2. **ISSUE FOR DETERMINATION.** 3. The only issue for determination for this court at the close of both the prosecution and defence cases is whether the prosecutions have proved the charge against the accused person. In essence did the accused person steal Kshs.50,000/= 4. **ANALYSIS AND DETERMINATION.** 5. I have reviewed and considered the evidence on record, the testimonies of all the witnesses and the law. For the prosecution to prove this charge as against the accused person in my view has to prove 2 ingredients which are borne out of section 268(1) of the Penal code to wit; 6. **That the accused fraudulently and without claim took away that which is claimed to have been stolen.** 7. **That the thing alleged to have been stolen is capable of being stolen.** 8. It is clear from the evidence on record that no one saw the accused steal the Kshs.50,000/=. He is only suspected because the accused and the complainant stayed in the same house not even same room and that according to the complainant the money got lost the day he left for Mombasa. 9. It is also true that the accused and the complainant were staying with other people in the said house for instance Pw 2 and one wonders why the complainant decided to suspect the accused and not anyone else in the house. 10. The complainant did not state why and the reasons that made him suspect the accused to have stolen the money in question. The accused in his defence and which I find makes sense in the circumstances, did not even know where the complainant used to keep his money and further that he used to lock his room even from inside when he slept and as such there was no way he could access the room or better still the place he kept his money. 11. Suspicion however strong cannot provide a basis upon which a court of law can infer guilt on an accused person. This is the holding court of appeal in the case of **Sawe vs Republic[2003] KECA 182 (KLR).** The prosecution and indeed the complainant are inviting this court to make a finding that it is the accused who stole the money because they shared a roof. This invitation is declined. 12. None of the witnesses saw the accused steal the money. None of them can therefore state with certainty that it is the accused who indeed stole the money in question. Furthermore, and more importantly there is no evidence that infact the complainant had in his suitcase the Kshs.50,000/= said to have been stolen. 13. I therefore find and hold that there is no cogent evidence directly linking the accused to the theft complained off and therefore the charge must fail. 14. With that finding I do not propose to consider the other issue as it is now moot. 15. **CONCLUSION AND DISPOSITION.** 16. Consequently, the accused person is not guilty of stealing contrary to section 268(1) as read with section 275 of the penal code and he is consequently acquitted in the said count under Section 215 of the Criminal Procedure Code. 17. Right of appeal 14 days. **DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS…30th …DAY OF …July…2026.** **F.M. MULAMA** **RESIDENT MAGISTRATE.** **In the presence of:** Court Assistant: Abuswaleh DPP: Idris Tomno. Mohamed Tumu Hussein