https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/228

Republic v Juma (Criminal Case E310 of 2025) [2026] KEMC 228 (KLR) (17 June 2026) (Judgment) Neutral citation: [2026] KEMC 228 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E310 of 2025 AK Njeru, SRM June 17, 2026 Between Republic Prosecutor and Evans Juma Accused Judgment 1.The 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 1st October 2025 at Nufananwa area in Samia Sub County within Busia County, the accused herein stole two pigs valued at Kshs 8,000, the property of Mildred Nekesa. 2.The accused faced an alternative charge of handling stolen property contrary to section 322(1) (2) of the Penal Code. Particulars are that on the 3rd day of October 2025 at Namagumba village, Samia Sub-County within Busia County, otherwise than in the course of stealing, accused dishonestly retained one pig knowing or having reason to believe the same to be stolen property (sic)Mildred Nekesa 3.Accused denied the charges, and the prosecution presented its witnesses as follows: 4.PW1 Mildred Neksesa testified to having lost her two pigs on 1/10/2025 at her home. She found out the same were missing in the morning. she asked around her neighborhood and even looked for them in the market centers to no avail. That as she passed one of the neighborhood homesteads, she saw her pig and even identified it by calling out its name Rakel. The same answered. It was tethered alongside that which she recognized as belonging to her neighbor Magdalene. That evening she alerted Magdalene that she had seen her pig tethered in a thicket near a homestead she had passed by. She and Magdalene returned to the homestead where she had sighted the two pigs later that evening around 9.00pm. The two recognised the pigs, one of which belonged to her, which was white colored with black spots in both ears and behind, while that of Magdalene was white in colour. They then went to the village elder’s home and alerted him of their findings. The village elder named Joseph alerted the police, who came and were directed to the accused’s home. The accused was woken up by the police and, on interrogation, stated that he had already sold another pig. The pig she recovered is the one in the image before the court. The accused was arrested on 10/9/2025 for a reason she cannot tell. She found her pigs missing on 2/10/2025. 5.PW2 Charles Okinyo testified that he was the village elder Namagumba village. On 3/10/2025 at around midnight, the complainant and another by the name Magdalene arrived at his home and reported their pigs stolen. They also said they knew where the pigs were. He called the police officers in Bukiri, who led them to the accused's home. They arrived at the accused’s home at around 4.00am and woke the accused up. The homestead belonged to the accused, who was well known to him. The accused confessed to having 3 pigs and having already sold one of them. The remaining ones were identified by the complainants as theirs. One was white in colour, and the other was white with black spots on its ears and tail. The accused was taken into custody. The pigs were tethered outside the accused’s house when they arrived. He is not aware that accused had been arrested in the month of September. 6.PW3 113771 PC Jamal Mohammed testified as the investigating officer. The two complainants, namely Magdalene, Akumu, and Millicent Nekesa, complained of theft of their pigs at the Bukiri Police post. He then received a call from the village elder, Charles, informing him that the two complainants were in his home and had information as to the location of their stolen pigs. He and his colleagues headed to the village elder’s home and met the two complainants who escorted them all to the home of the accused, where they found a pig tethered to a tree in front of the accused's house and next to it a smaller pig. Complainants identified the pigs as those stolen from them. They knocked on the accused’s door, the accused opened the door, and they took the accused into their custody. Statements of witnesses were recorded and the accused was interrogated, indicating that he had sold one more pig. Photographs of the pigs were taken, and the accused was charged with the offences herein. Police entered the accused’s house and found a woofer that he could not prove he owned. They confiscated the same and booked it as suspected stolen property. It is not true, therefore, that the accused was first arrested with the woofer and then framed for theft of the pigs. 7.Accused at the close of the prosecution's case was found with a case to answer and placed on his defence. His evidence was as follows: 8.DW1 Evans Juma Sanya stated that he understood the charges he faced. On 10/9/2025, his village elder, Charles Okenyo, arrested him and escorted him to the Bukiri Police post for a reason he did not know. They seized his Ampex Woofer and escorted him to the Sio Port Police station. He stayed in custody till 5th October 2025, when he was arraigned with these charges. He was arrested by almost 7 people, and he was not in possession of any pigs as alleged. he denied theft of the pigs. He has no evidence to confirm the pigs were not in his possession. 9.At the close of the defence case, the prosecution chose to rely on the evidence on record while accused’s learned counsel Mr. J.V.Juma submitted orally that accused is not guilty of the charges herein as on the purported dates of theft being 14/9/2025 for the theft of Magdalene Akumu’s pigs as well as 1/10/2025 for the theft of complainant’s pig in this case, accused was already in police custody and therefore incapable of committing the said offences, having been in custody since 10/9/2025. He was arrested on the basis of a woofer which the I.O admitted to have confiscated despite there being no complaint from anyone that the same was stolen property. None of the prosecution witnesses mentioned that the accused was arrested with the Woofer, creating doubt as to the entire prosecution’s case. Furthermore, no evidence has been presented by the prosecution to prove the accused’s actual date of arrest, and hence his testimony of alibi that he was already in custody at the time of commission of the offence remained unchallenged. 10.The key issue is whether the prosecution has proved its case beyond reasonable doubt and whether the accused’s alibi defence stands. 11.The prosecution relies principally on the recovery of the pigs at the accused's homestead and the identification of the animals by the complainants. The evidence of PW1, PW2, and PW3 is consistent regarding the circumstances of the pigs' recovery and the accused's presence at the homestead. 12.However, the accused raises an alibi defence which is that he was in police custody from 10/9/2025 until his arraignment on 5/10/2025, and thus could not have committed the offences on 1/10/2025 and 3/10/2025. The burden is not on the accused to prove his alibi but on the prosecution to disprove it beyond reasonable doubt. 13.The principles governing alibi defence were well espoused in the case of VICTOR MWENDWA MULINGE V R, [2014] eKLR theCourt of Appeal rendered itself thus on the issue of alibi: “It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see KARANJA V R, [1983] KLR 501 … this Court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought.” 14.The accused put across his alibi defence in the cross-examination of the investigating officer. In his evidence, he was in police custody over a woofer which the investigating officer confirmed to have confiscated at the time of the arrest. 15.On this crucial point, the prosecution did not adduce documentary or witness evidence to establish the accused’s date of arrest or to rebut the alibi. While the investigating officer mentioned the accused was found at his homestead, there is conflicting evidence as to when and why the accused was arrested. The complainant herself was uncertain as to the accused’s arrest date, and the village elder was unaware of any previous arrest. 16.No custody records or other documentation were produced by the prosecution to clarify this issue.The law is clear: where an accused raises an alibi, and the prosecution fails to dislodge it, the benefit of doubt must go to the accused. 17.Conclusion is that in the present case, the prosecution has failed to prove beyond a reasonable doubt that the accused was at liberty at the material time and thus capable of committing the offence as charged. The alibi defence, therefore, raises a reasonable doubt as to the accused’s guilt. 18.Accordingly, I find the accused not guilty of both the main and alternative charges. He is acquitted under section 215 of the Criminal Procedure Code. Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT, THIS 17TH DAY OF JUNE 2026 in the presence of accused, in Kiswahili language he states to understand, Mr. Juma J.V accused’s advocate, Mr. Githinji the prosecutor and Mr. Victor the Court Assistant HON. ANNE NJERUSRM