https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/220

Republic v Karisa alias Makulakula (Criminal Case E584 of 2026) [2026] KEMC 220 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEMC 220 (KLR) Republic of Kenya In the Mombasa Law Courts Criminal Case E584 of 2026 JM Mwenda, RM July 2, 2026 Between Republic Prosecutor and Jimmy Karisa alias Makulakula Accused Judgment 1.The court's duty is not to determine whether an accused person is generally perceived to be of bad character or whether he has previously attracted the attention of law enforcement agencies. Its singular obligation is to determine whether the evidence presented before it establishes that the accused committed the offense charged. I say this because police officers who testified in this matter kept on referring to the character of the accused person as a notorious criminal. 2.The accused herein was charged with the offense of Stealing contrary to section 268(1) as read with section 275 of the Penal Code. 3.The particulars of the charge are that on the 27th day of February, 2026 at Magongo area in Changamwe Sub-County within Mombasa County, jointly with others not before court, he stole one mobile phone, make iPhone Pro Max valued at Kshs. 55,000/=, the property of Josephine Mbuli Mbodze. 4.The accused denied the charge, thereby placing upon the prosecution the legal burden of proving every ingredient of the offense beyond reasonable doubt, a burden that never shifts and one that must be discharged through credible, cogent and admissible evidence. 5.The prosecution called five witnesses. PW1 was Josephine Mbuli Mbodze, the complainant, she testified that on the material night at about 9.00 p.m., she boarded a matatu at Sprite Stage destined for SabaSaba in Mombasa CBD. Three conductors were busy soliciting passengers. She wanted to pay the bus fare using her phone which was about to go off due to power and she removed it to pay. It was at that moment that one of the conductors suddenly snatched the phone and fled. 6.She immediately screamed and demanded that the driver stop the vehicle. Her pleas initially fell on deaf ears until another driver who took over the vehicle at the next stage intervened and drove the vehicle to Changamwe Police Station. By then, one of the remaining conductors had escaped while another, identified as John, remained. 7.PW1 testified that the area was well illuminated and the vehicle itself had sufficient lighting. Before the theft, she had interacted with the accused as he persuaded her to board the matatu. She therefore had ample opportunity to observe him before the incident occurred. 8.Subsequently, on 5th April, 2026, she attended an identification parade comprising about ten persons and positively identified the accused by touching him. She maintained throughout cross-examination that she had not known the accused before the incident and had not seen him again before attending the identification parade. 9.PW2, PC George Okoth, testified that following information received on 3rd April, 2026, the accused was arrested by undercover officers and handed over to Changamwe Police Station. Together with fellow officers, they attempted to trace the accused's accomplices, arresting one suspect called Julius Raphael. He further testified that the accused was subjected to an ID parade and was identified by the complainant. 10.PW3, PC Albanus Makau, substantially corroborated the evidence of PW2 regarding the arrest of the accused. 11.PW4, PC Peterson Kimemia, the investigating officer, narrated how he took over investigations after the complainant made her report. He confirmed that following the accused's arrest, an identification parade was organized during which the complainant positively identified the accused. 12.PW5, Inspector Alexander Chailewa, conducted the identification parade. He testified that the accused was informed of his rights, freely chose his position on the parade, raised no objection to its composition and signed the parade forms. The complainant successfully identified him by touching him. The parade forms were produced as P exhibit 2. 13.At the close of the prosecution's case, this Court found that a prima facie case had been established and placed the accused on his defense. 14.The accused elected to give sworn testimony. He denied committing the offense and stated that he had merely been arrested at a stage before being taken to the police station. He denied ever seeing the complainant before these proceedings. 15.Having carefully considered all the evidence, the issues that arise for determination are:a.Whether the complainant's phone was stolen.b.Whether it was the accused who stole it.c.Whether the prosecution proved its case beyond reasonable doubt. 16.The first issue admits of little controversy. PW1 gave direct evidence that her mobile phone was forcibly snatched from her possession. Her ownership was supported by the purchase receipt produced as Exhibit 1 by the I.O. Nothing emerged in cross-examination to cast doubt upon this aspect of her evidence. The Court is satisfied that a theft indeed occurred. 17.The second issue concerns identification. The conviction or acquittal in this matter substantially depends upon the evidence of a single identifying witness. Such evidence calls for the greatest circumspection. In Roria v Republic [1967] EA 583, the Court held that:“Subject to certain well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favoring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 18.Likewise, in Wamunga v Republic [1989] KLR 424, the Court of Appeal held that:Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favorable and free from possibility of error before it could safely make it the basis of a conviction. 19.The Court has therefore scrutinized PW1's evidence with the caution demanded by law. Although the incident occurred at night, PW1 consistently testified that the stage was well lit and the vehicle had interior lighting. More importantly, she had interacted with the accused before the theft as he persuaded her to board the matatu. This interaction afforded her sufficient opportunity to observe him at close range. The theft itself occurred almost instantaneously while she was paying fare, meaning the offender was within touching distance. 20.Her evidence remained internally consistent and was not shaken during cross-examination. 21.The subsequent identification parade conducted by PW5 significantly strengthens her testimony. The parade was conducted in accordance with the law. The accused selected his preferred position, raised no complaint concerning its conduct, and the complainant unhesitatingly identified him. The Court finds no irregularity capable of diminishing the evidential value of the parade. 22.The defense offered by the accused amounted to a bare denial. It neither displaced nor weakened the prosecution's evidence. It raised no reasonable doubt regarding the complainant's positive identification. 23.This Court must, however, comment on the repeated references by PW2, PW3 and PW4 describing the accused as a "notorious criminal" who was allegedly wanted in numerous cases.I know I mentioned this issue earlier in this judgement but I must clarify that Such testimony was inadmissible to prove the present charge. Criminal liability must never be founded upon reputation or alleged propensity to offend. Every accused person is presumed innocent until proved guilty on the evidence relating to the specific offense before the Court. 24.Accordingly, this Court has completely disregarded those assertions in reaching its determination. 25.After independently evaluating the admissible evidence, this Court is satisfied that the complainant had sufficient opportunity to observe the offender.Her identification was honest, credible and free from the possibility of mistake. Her evidence was fortified by a properly conducted identification parade and the accused's defense did not create any reasonable doubt. 26.The chain of evidence points irresistibly to one conclusion, that it was the accused, who stole the complainant's mobile phone. 27.In criminal trials, the prosecution is not required to prove its case beyond all imaginable doubt. It is only required to prove it beyond reasonable doubt. In the present case, that burden has been fully discharged. 28.Consequently, this Court finds that the prosecution has proved the charge of Stealing contrary to section 268(1) as read with section 275 of the Penal Code against the accused person beyond reasonable doubt. 29.The accused is hereby found guilty and is convicted accordingly under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 2ND DAY OF JULY 2026.SIGNED BY/FOR:THE JUDICIARY OF KENYAHON. JAMLICK MURIITHI MWENDAMOMBASA MAGISTRATE COURTMAGISTRATE COURT CRIMINALDATE: 2026-07-02 18:11:42