https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/120

Republic v Kale (Criminal Case E111 of 2025) [2026] KEMC 120 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEMC 120 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E111 of 2025 FM Mulama, RM May 21, 2026 Between Republic Prosecutor and Mohamed Kale Accused Judgment A. Background. 1.The accused is charged with handling stolen goods contrary to Section 322(1)(2) of the penal code. The particulars in support were that on 1/6/2025 at around 1500hours in Langoni in Lamu otherwise than in the course of stealing, dishonestly received or retained a mobile phone make Samsung Galaxy A73 knowing or having reason to be a stolen property. 2.2 witnesses were called by the state and after being found to have a case to answer, the accused opted to remain silent after Section 211 of the Criminal Procedure Code was explaining to him. I have considered the testimonies on record and the exhibits produced. The Prosecution’s case. 3.It is the evidence of Pw 1 Fatma Mzee Ali that on 28/5/2025 at 0400hours woke up and went to the toilet and on her way back from the toilet, she noticed that the main door was open. She was shocked and went to the sitting room and all was well and she went to the bedroom and that is when she realized 2 of her phones being a tecno button phone and Samsung smart phone were missing. In her bag she noticed that Kshs.5,000/= was also missing. Other things that she later realized were missing were her blender and a JBL Speaker. Upon checking the entire house, she noticed a small cap in the other toilet and she decided not to touch it and she went to report to the police and who came and took it and placed it in an envelop. 4.3 days later the accused went to her house and asked her whether if the phone is given back to her she would forgive the suspect who had been arrested in connection to the stealing offence. She played along and agreed provided the phone is brought back. The accused further made a demand that Kshs.3,000/= should be reimbursed to the person who had purchased the phone. She then agreed but as a set up and later she informed the police and the accused was arrested with the smart phone in question. She identified the phone and which was later produced as Pexh 1 by the Investigating officer who took over from the initial investigating officer and who has since been transferred out of Lamu. B. Issue For Determination. 5.This court has identified the following issues for determination.a)Whether the accused handled stolen property to wit Samsung Galaxy A73. C. Analysis And Determination. a)Whether the accused handled stolen property to wit Samsung Galaxy A73. 6.The offence of handling stolen property is created by Section 322(1) of the Penal Code which provides.“A person handles stolen goods if (otherwise than in the cause of stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives, or retains the goods, or dishonestly undertakes or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so”. 7.The necessary ingredients to be established are;a)Being found with the actual possession of stolen goods and/or having participated in its disposal.b)Being dishonest in the manner on which the goods came to his possession and /or retention /disposing the goods. 8.The prosecution to succeed in this case has to prove that the accused was at one point or other in possession of the phone in question, which was recently stolen from PW1. From the evidence on record, this aspect was proved by the evidence of the complainant and the Investigating officer. It was the evidence of the Investigating officer that once a report was made by the complainant about the loss, investigations commenced and they visited the scene. 9.It was the evidence of the complainant that the accused went to her house and sought to lure the complainant into withdrawing the case at the police station and in return he returns the phone to her and further that she refunds Kshs.3,000/= to an unnamed person who had already purchased the phone. The complainant played along and agreed to the proposal but informed the police and when the accused came as planned he was arrested by the police and that is how he was found in possession of the phone. The fact of possession is thus proved. 10.I note that the IO(Pw 2) narrated a somewhat different story as to what exactly happened but I do not find that to destabilize the case by the prosecution for the reason that he only took over the file from the previous IO who has since been transferred. This is because the fact that the accused was found with the phone in question has not been disputed with evidence by the accused person. I have thus heavily relied on the evidence by the complainant who explained in details what really transpired. Further any inconsistencies in the testimony by Pw 1 did not go to the root of the case so as to destabilize it. 11.In the case of Erick Onyango Ondong v Republic (2014) eKLR, the court cited the case of Twehangane Alfred v Uganda CR 139 PF 2001 (2003) UGGA 6, where it said;-“With regard to contradictions in the prosecution case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being and rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate without fullness or if they do not affect the main substance of the prosecution case.” 12.See also Philip Nzaka Watu v Republic (2016) eKLR where the court stated as follows:“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people can perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 13.From the above decisions, not all contradictions can lead to invalidating a conviction but must go to the root of the charge. The evidence of Pw 2 largely related to how the accused was arrested and this does not go to the root of the case. 14.As to whether the accused dishonestly retained the phone knowing that it was stolen, the accused did not give any explanation as to how he came into possession with the said phone. He did not claim ownership either. Therefore, the fact that he retained the same without claiming ownership, I do find that he dishonestly retained it with reasons to believe it was stolen. 15.Once this was established by the prosecution, the burden effectively shifted to the accused person to explain how he came into possession with the phone. The court in the case of Kelvin Nyongesa & 2 Others =versus= Republic eKLR, the court stated as follows:-“Once the primary facts are established, the accused bears the evidential burden to provide a reasonable explanation for the possession. This burden is evidential only and does not relieve the prosecution from proving its case to the required standard. That explanation need only be plausible.” 16.From the prosecution’s evidence that was largely uncontroverted, the prosecution established that the accused was in possession of the complainant’s phone and effectively the burden effectively shifted to the accused. Upon being found to have a case to answer, he opted to remain silent in defence. This meant therefore that he would not offer any explanation as to how the phone came to his possession. 17.This being the case, this court further finds that no plausible explanation as to possession has been offered by the accused and consequently the accused was not only in possession of the said phone but dishonestly retained the same. The charge is thus proved to the required standards. D. Conclusion And Disposition. 18.Considering the evidence and the exhibits in this matter it is my finding and I so hold that the prosecution proved the sole count facing the accused beyond reasonable doubt. 19.The net effect being that the accused person is found guilty of the offence handling stolen property and he is accordingly convicted in that count under section 215 of the CPC. 20.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS..21st …DAY OF…May…2026F.M. MULAMARESIDENT MAGISTRATEIn the presence of:Idris Tomno-DPPCourt Assistant:- Abuswaleh.Mohamed Kale.Page 4 of 4 Judgement LAMU CR CASE NO. E111 OF 2025