Republic v John Paul Otieno

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E554 OF 2025** **REPUBLIC……………………………………………………….………..…..PROSECUTOR** VERSUS **JOHN PAUL OTIENO…………………………….………............ACCUSED PERSON** **JUDGMENT.** **Introduction and Evidence** 1. The accused persons took plea on 16th October 2025 on the charge of Breaking into a Building and Committing a felony contrary to Section to section 306(a) of the penal code. 2. The particulars are that the accused person on the 15th day of October 2025 at about 1440hours at Malaba Township within Busia County with another not before the court broke and entered Baba Gifty’s shop and committed a felony namely stealing of Samsung A05, Nokia C2 and HMD mobile phones valued at Kshs. 64,000/=. 3. He was charged with an alternative charge of handling stolen property contrary to section 322(1)(2) of the penal code. 4. The particulars are that the accused person on the 15th day of October 2025 at Malaba Township in Teso North Sub-County within Busia County otherwise than in the course of stealing, dishonestly retained one Black HMD mobile phone valued at Kshs. 37,000/= knowing or having reasons to believe them to be stolen property. 5. The accused person pleaded not guilty to both the main charge and the alternative charge and upon perusal of the Pre-Bail Report, he was admitted to Bond terms of Kshs. 150,000/= with surety of similar amount. Bond terms were later reviewed to Kshs. 100,000/= with surety of similar amount pursuant to an application by the accused person. The matter was set down for hearing and the prosecution called a total of two witnesses. 6. PW1 was the complainant one Anthony Ouma Baraza who testified that on 15th October 2025 he was at his shop until 1400hours when he stepped out to look for lunch. He pushed the door to the shop and asked a lady at the nearby chemist to watch her shop. He found a queue where he had gone to get food and came back to his shop. He saw two boys. One standing by the door and another bending. The one who was outside saw him and ran away. The other was left behind. He placed a mobile phone in his back pocket and was arrested by members of the public. That the phone was a nokia X20 belonging to his client and which was in court. That other phones were not recovered. That the crowd wanted to intervene and assault the accused person but he opted to call the police to take action against the accused person. 7. On cross-examination he testified that the door was not broken and was left slightly ajar. That his neighbor told him that the owner of the shop was not there but the accused person waited for the owner of the chemist to look away and he entered the shop. He was arrested with a phone and he was lynched by a mob. 8. There was no re-examination for this witness. 9. PW2 was the Investigating Officer one PC Enock Matunda who testified that on 15th October 2025 he received a phone call from a citizen one Anthony who informed him that he had closed his shop and stepped out. That on coming back he saw the door open. That one was bent inside the shop picking a phone and another standing outside. The one who stood outside ran away. The complainant raised alarm and through assistance of members of the public the accused person in court was arrested. He established that a Black HMD phone had been brought to the shop for charging by one Deborah Toto. He with other officers arrived at the scene and took away the accused person to the police station. That the accused person admitted to having taken the phone together with another boy who ran away. An inventory was prepared but the accused person refused to sign. Other officers namely Benson Ongado and Yegon Kiptek signed the inventory. He produced the phone as Exhibit 1 and the inventory as Exhibit 2. 10. On cross-examination he testified that the inventory proved that the accused person stole the phone. That the accused person refused to sign the inventory and to record his statement. 11. In re-examination he testified that the complainant saw the accused person at the shop and he was arrested by members of the public. 12. This marked close of the prosecution’s case. Pursuant to a ruling delivered on the 9th day of July 2026, the accused person was placed on his defence under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 13. He testified that on 15th October 2025 he was going about his usual business selling groundnuts when he saw a crowd of people and asked some women what was happening. He was informed that there was thief who had stolen a phone. He uttered the words that people leave shops unattended until thieves steal which words angered the complainant and who told him that he could be the thief. He denied knowing anything about the theft. He was later arrested and charged with the instant offence. 14. On cross-examination he testified that he was just a passer by selling ground nut. That he did not call the women as witnesses because he did not know where they lived. That to the best of his knowledge he was arrested because of utterances he made and not because he was a thief. 15. This marked close of the prosecution’s case and the court reserved the matter for judgment on 10th September 2026. **Analysis and Determination** 1. **Section 306 (a) provides:-** **“306. Any person who –** 1. **Breaks and enters a school house, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling – house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; ”** 2. The accused person challenged the prosecution evidence on the basis that the door was not broken. PW1 confirmed during cross-examination that the door was not broken but was left slightly ajar. 3. In [**MICHAEL MAUNDU WAMBUA v REPUBLIC [2006] KEHC 1270 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2006/1270/eng%402006-10-02)where the court considered whether there had been breaking when the appellant opened the door with a key. The court stated:- ***“With respect I do not buy the appellant’s interpretation of what amounts to “breaking”. The breaking must not necessarily result into some sought of damage. What is critical is gaining access into a store against the wish of the owner and or without his permission. In the instant case, the appellant gained entry into the store using a master key. By using the master key to access the store which was not his and without having sought or obtained the permission of the owner (PW 1) to my mind amounts to breaking in. simply put the appellant by his own machinations gained unauthorized access to the store. That act amounted to “breaking in”. In my view therefore the prosecution led sufficient evidence to show that the appellant broke into the store.”*** 1. Guided by the above authority it is my considered view that breaking need not involve physical damage to the premises and that opening a door by pushing may amount to breaking. The statutory definition similarly extends breaking to opening a door by pushing, pulling, lifting or other means. However, the issue before this Court is not merely whether a door can be broken without causing physical damage. It is whether the prosecution proved beyond reasonable doubt that the accused person broke and entered the shop. 2. In the present case, there is no evidence that the accused person opened or pushed the door to gain entry. On the contrary, PW1's evidence was that the door was already slightly ajar. I therefore find that the ingredient of breaking has not been proved beyond reasonable doubt. 3. The prosecution evidence regarding the mobile phone recovered from the accused person also requires consideration. The main charge refers to, among other items, an HMD mobile phone, while the alternative charge specifically refers to one black HMD mobile phone valued at Kshs.37,000. PW2 testified that a black HMD mobile phone had been brought to the shop for charging by Deborah Toto. PW1, on the other hand, referred to the phone recovered from the accused as a Nokia X20 belonging to his client. 4. I do not necessarily find that the reference to a Nokia X20 and an HMD phone establishes that they were different phones. HMD is a manufacturer of mobile phones and the evidence may have been referring to the same phone by different descriptions. However, the prosecution ought to have clarified this important aspect of its case, particularly as the alternative charge specifically identifies the property as a black HMD mobile phone valued at Kshs.37,000. 5. The person said to have brought the HMD phone to the shop for charging, namely Deborah Toto, was not called as a witness to identify the phone or establish her ownership thereof. The prosecution therefore left an evidential gap as to the identity and ownership of the particular phone alleged to have been stolen and subsequently recovered from the accused person. 6. I have considered the fact that the accused person was found inside the shop with a mobile phone shortly after the incident. This is certainly an incriminating circumstance. However, suspicion, however strong, cannot substitute proof. Before the doctrine of recent possession can properly arise, the prosecution must establish that the property found in the accused person’s possession was the property that was stolen. In the circumstances of this case, the evidence does not sufficiently bridge that gap. 7. I have also considered the inventory produced by the prosecution. The accused person refused to sign it. His failure to sign the inventory does not, by itself, render the inventory inadmissible or establish his guilt. An inventory principally serves to record and authenticate the items recovered; the prosecution must still prove the circumstances of the recovery and the identity of the property. 8. The alleged admission made by the accused person to PW2 that he had taken the phone together with another person has also been considered. I do not place reliance on that alleged admission as a confession. Section 25A of the Evidence Act restricts the admissibility of confessions or admissions tending to prove guilt unless made in the prescribed manner, including before a properly qualified police officer other than the investigating officer and in the presence of a third party of the accused person's choice. 9. I have weighed the prosecution evidence against the accused person's defence. The accused person stated that he was merely a passer-by and that he was arrested because of remarks he made after finding a crowd at the scene. His defence does not have to prove his innocence; the burden remains throughout on the prosecution to prove the charge beyond reasonable doubt. 10. While there are circumstances which may raise suspicion against the accused person, suspicion, however strong, cannot take the place of proof beyond reasonable doubt. The prosecution was required to establish the ingredients of the particular offences charged and to link the accused person to the specific property alleged to have been stolen. 11. In the circumstances, I find that the prosecution has failed to prove the ingredient of breaking and entry required for the main count. It has also failed to satisfactorily establish the theft of, and the accused person's connection with, the specific Black HMD phone particularized in the alternative charge. 12. Consequently, the accused person is acquitted under section 215 of the Criminal Procedure Code on the offence of breaking into a building and committing a felony contrary to section 306(a) of the penal code as well as the alternative charge of handling stolen property contrary to section 322 (1)(2) of the Penal 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 John Paul Otieno the Accused Person Mr. Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 10.09.2026