https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/822

 **REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE'S COURT AT MAKINDU** **CRIMINAL CASE NO E902 OF 2024** **REPUBLIC.......................................................................................................PROSECUTION** **VERSUS** **ALEX KIMANTHI KITUKU…………........................................................................ 1ST ACCUSED** **MASEKI KING’OLI…………………………………………………………………………………………...2ND ACCUSED** **RULING** **THE CHARGE** Alex Kimanthi Kituku and Maseki King’oli (hereinafter referred to as the 1st and 2nd accused persons respectively) are jointly charged with the offence of stealing a motor cycle contrary to section 278A of the Penal Code. The particulars of the offence are that on 13/11/2023 at Kibwezi Township within Makueni County, the accused persons jointly with others not before court stole a motor cycle registration number KMFR 594U valued at Ksh. 110,000/=, the property of Evans Kyalo King’oo. The 1st accused person faced a second count of possession of government stores contrary to section 324(2) as read with section 36 of the Penal Code. The particulars of the offence are that on 17/11/2024 at Kangesu area in Kibwezi Sub-county within Makueni County, the 1st accused person was found in possession of a smoke jacket belonging to Administration Police Service, one jungle trouser, a green beret and a pair of jungle boots belonging to National Youth Service, all suspected of having been stolen or unlawfully obtained. The 2nd accused person faced a second count of having suspected stolen property contrary to section 323 of the Penal Code. The particulars of the offence are that on 17/11/2024 at Kivuthini area in Kibwezi Sub-county within Makueni County, the 2nd accused person, having been detained by Corporal Amos Makori and Police Constable Issah Makaga as a result of exercise of the powers conferred by section 26 of the Criminal Procedure Code, had in his possession one motor cycle registration number KMFZ 524X, reasonably suspected to be stolen or unlawfully obtained. When the plea was taken, the accused persons pleaded not guilty to their respective counts. The matter was then set down for hearing. **THE EVIDENCE** At the close of the prosecution case, four (4) witnesses had testified. The brief facts of the prosecution case are that on 13/11/2024 the complainant herein went to a liquor bar in the evening. He parked his motor cycle registration number KMFR 594U outside the bar and went in to take alcohol. That after about four hours, the complainant went out but did not see his motor cycle. He returned to the bar and reported to the bartender. The bartender then mentioned the names of the accused persons herein as suspects. The matter was reported to the police. The complainant followed up on the accused persons and with the help of members of public, the accused persons herein were apprehended. The accused persons were taken to the police station. Later, the police visited the 1st accused person’s house and recovered what was believed to be government stores. The prosecution evidence indicates that when the 2nd accused person was apprehended by members of public, he was found doing *bodaboda* business with a motor cycle. The 2nd accused person and the motor cycle were taken to the police station. Upon investigations the accused persons were charged with the offences before court. The complainant’s motor cycle was never recovered. **MAIN ISSUE FOR DETERMINATION** The main issue for determination at this stage is whether the prosecution has established a *prima facie* case to warrant the accused persons or either of them to be placed on their defence in respect of the offences. **ANALYSIS AND DETERMINATION** I have carefully considered the evidence on record as well as the law applicable. A *prima facie* case is defined in the ***Mozley and Whiteley’s Law Dictionary 11th Edition*** as: ***“A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence and can be overthrown only by rebutting evidence adduced by the other side.”*** Emphasis added The *locus classicus* on what constitutes a *prima facie* case is to be found in the celebrated case of ***Ramanlal Trambaklal Bhatt v. R [1957] E.A 332*** at 334 and 335, where the court stated as follows: ***“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”*** (Underlining mine) In the authority of ***Ronald Nyaga Kiura v Republic [2018] eKLR***,the court observed that a *prima facie* case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person In my considered view, for the court to find that a *prima facie* case has been made out against an accused person, the prosecution must have established the following: 1. That the offence complained of was indeed committed; and 2. That the evidence links the accused person to the offence complained of. It is my further opinion that in order to show that the offence complained of was indeed committed, the prosecution must establish the key ingredients of the offence. A *prima facie* case is an early screen for a court to determine whether the prosecution can go forward to try the accused person fully for the crime. As such, the standard of proof that the prosecution must satisfy at the prima facie case stage is lower than that for proof that the accused is guilty, that is, lower than proof beyond reasonable doubt. In order to establish a *prima facie* case, a prosecutor need only offer credible evidence in support of each element of a crime. **Count one** I have considered the evidence on record. There is *prima facie* evidence to show that the complainant owned the motor cycle in issue and that the same was stolen on 13/11/2024 and not 13/11/2023 as wrongly indicated in the particulars of the offence. The key question is whether there is evidence linking the accused persons to the offence. There is no direct evidence linking the accused persons to the offence. No prosecution witness testified that they saw the accused persons stealing the motor cycle. The evidence of the complainant was that the names of the accused persons were mentioned by the bartender who indicated that she suspected the accused persons. There is no evidence to show that the bartender saw the accused persons stealing the motor cycle. She only stated that she suspected them. When the investigating officer was cross-examined by the 1st accused person, he stated that the accused persons were identified by the bartender. When he was cross-examined by the 2nd accused person, he stated that there were people who saw the accused persons pushing the motor cycle. Quite interestingly, neither the bartender nor the people who allegedly saw the accused persons pushing the motor cycle were called to testify. The investigating officer and by extension the prosecution acted on mere suspicion. There is absolutely no evidence linking the accused persons to the offence. Placing the accused persons on their defence would be tantamount to requiring them to confirm the suspicions. It was alleged that the accused persons were at the bar that night when the motor cycle was stolen. The testimony of the complainant was that there were a lot of people at the bar that night. The complainant had not known the accused persons before and could not tell whether they were at the bar that evening. It would appear that the only person who could have confirmed whether or not the accused persons were at the bar that evening was the bartender. As already indicated, the bartender was not called to testify. Even if the accused persons had been at the bar that evening, their presence alone is not sufficient to warrant a finding that they could have stolen the motor cycle. The burden is on the prosecution to prove its case against the accused persons. Even at the *prima facie* stage, there must be credible and acceptable evidence linking the accused persons to the offence. A hunch is not sufficient. **Count two** Based on the evidence on record, it is my finding that the prosecution has established a *prima facie* case against the 1st accused person. I do not wish to delve further lest I prejudice the case for either party. **Count three** I have considered the particulars of the charge as well as the evidence on record. The evidence shows that the 2nd accused person was apprehended by members of public then taken to the police station together with the motor cycle he was riding. The motor cycle was not impounded by the police. Section 26 of the Criminal Procedure Code provides in part as follows: 1. ***A police officer, or other person authorized in writing in that behalf by Inspector-General of the National Police Service, may stop, search and detain—*** 2. ***any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found; or*** 3. ***any aircraft, vessel or vehicle which there is reason to suspect has been used or employed in the commission or to facilitate the commission of an offence under the provisions of Chapters XXVI, XXVIII and XXIX of the Penal Code (Cap. 63); or*** 4. ***any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained.*** 5. ***No person shall be entitled to damages or compensation for loss or damage suffered by him in respect of the detention under this section of an aircraft, vessel or vehicle.*** 6. ***For the purposes of this section, "aircraft", "vessel" and "vehicle", respectively, include everything contained in, being on or attached to an aircraft, vessel or vehicle, as the case may be, which, in the opinion of the court, forms part of the equipment of the aircraft, vessel or vehicle.”*** For the purposes of this case, the relevant provision is section 26(1) (c) of the Criminal Procedure Code. Section 323 of the Penal Code provides thus: ***"Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour."*** (Underlining mine) In my view, there are two separate components of the offence under section 323 of the Penal Code as follows: 1. The accused could either be charged with being in possession of the property reasonably suspected to have been stolen; or 2. The accused person could be charged with conveying property reasonably suspected to have been stolen. Although possession is a component of conveying, the two words cannot, in my opinion, be used interchangeably. The statement of the offence herein indicates that the accused was charged with the offence of having suspected stolen property. In the case of ***Kiondo Hamisi v R [1963] EA 209***, it was held that before the court makes a finding of guilt with respect to a person charged under section 323 of the Penal Code, the following elements must be established by the prosecution: 1. That the accused was, in fact, detained in the exercise of powers conferred by section 26 of the Criminal Procedure Code; 2. That at the time when he was detained, the accused person was in the course of a journey, whether or not in a street, or on private land or in a building; 3. That at the time when he was detained, the accused had in his possession the particular article in issue; 4. That the thing was of such a nature, or the circumstances were such that it might reasonably be suspected of having been stolen or unlawfully obtained; and 5. That the accused had refused or failed to give an account to the court of how he came by the thing, or gave an account which was so improbable as to be unreasonable, or gave an account which was rebutted by the prosecution. Similarly, in ***Charo v R [1982] KLR 1*** Muli J (as he then was) summarized the ingredients of the offence under section 323 of the Penal Code as follows: ***“The ingredients of a charge under Section 323 of the Penal Code are that a person must have been detained pursuant to Section 26 of the Criminal Procedure Code (Cap 75); the person must be charged with having in his possession or conveying anything reasonably suspected of having been stolen or unlawfully obtained; and the person must have failed to give an account to the satisfaction of the court of how he came by the thing so suspected."*** All the above conditions must be met in order to sustain the charge. In the absence of proof by the prosecution that the article in question is the property of someone else, a reasonable explanation as to how the accused came into possession of the item is sufficient. Furthermore, the explanation need not be true, all that is required is for the explanation to be reasonable in the opinion of the court and one which has not been rebutted by the prosecution. My understanding of section 323 of the Penal Code is that whether or not the explanation is reasonable is a matter to be decided by the court and not the police or the prosecution. This does not however mean that the police, upon stopping or detaining a suspect, cannot question the suspect with respect to the article in issue so as to satisfy themselves that the item has not been stolen or unlawfully obtained. It is from such inquiry that the police would be able to form reasonable suspicion that the item has been stolen or unlawfully obtained. However, it does not matter that the police were not satisfied with or did not believe the explanation that was given by the accused person. The offence is committed when the accused person refuses or fails to give an account to court (not the police) of how he came by the item, or gives an account which is unreasonable or one which is rebutted by the prosecution in circumstances where all the other conditions have been met. My view is buttressed by the authority of ***Stephen Chege v Republic [1983] eKLR***, wherein Porter Ag. J (as he then was) held as follows: ***"In the case of Koech v Republic [1968] EALR at page 109 it was pointed out that under Section 323 of the Penal Code the offence with which an accused is charged was not that he had in possession or was conveying in any manner anything which might be reasonably suspected of having been stolen or unlawfully obtained but that if he admitted to those facts and failed to give an account to the satisfaction of the court of how he came by the same then and only then would he be guilty of an offence."*** In the case of ***Tenywa v Uganda [1967] EA 102***, it was held that in such a case, the accused person is not required to establish that the item belongs to him. Section 26 (1) (c) of the Criminal Procedure Code empowers a police officer or other person authorized in writing in that behalf by the Inspector General of Police, to stop, search and detain any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. As already indicated, the 2nd accused person was allegedly apprehended by members of public then taken to the police station. None of the members of public who allegedly apprehended the 2nd accused person were called to testify. Be that as it may, it is clear that the 2nd accused person was not detained by the police in exercise of their powers under section 26 of the Criminal Procedure Code. In other words, the 2nd accused person was not stopped, searched and detained by the police. On that ground alone, the charge cannot stand. The charge applies to specific circumstances and not generally. The test in determining a prima facie case was laid down in ***Republic v Galbraith [1981] WLR 1039,*** in the following words: 1. If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case; 2. The difficulty arises where there is some evidence, but it is of a tenuous character, for example because of interment weakness or vagueness or because it is inconsistent with other evidence; (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witnesses’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It is the duty of the prosecution to prove the charge against the accused person. To this end, the prosecution must satisfy the ingredients of the offence at a *prima facie* level before the accused person is called upon to offer an explanation. In my view, before the court places an accused person on their defence, there must be credible evidence to show that the offence complained of was committed and that the evidence links the accused person to the offence. It is not the duty of the accused person to fill in the gaps or tie up the loose ends in the prosecution case. I agree with the observation made by the High Court of Malaysia in ***Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution v Zainal Abidin B. Maidin & Another*** that the defence ought not to be called merely to clear or clarify doubts. In the case of ***Public Prosecutor v Saimin & Ors*** ***[1971] 2 MLJ 16,*** Sharma J held: ***“It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and the court is not******entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got******to say about the prosecution evidence, to rule that there is a case for the accused to answer.”*** I may be curious to know what the accused persons have to say about the allegations but curiosity is not a reason enough to place the accused persons on their defence. Where the prosecution fails to tender evidence linking the accused person to the offence as in this case, it would be an exercise in futility to call upon the accused persons to offer an explanation. It is the duty of the prosecution to establish the guilt of the accused person and not for the accused person to prove her innocence. **DISPOSITION** In view of the foregoing, I make the following orders: 1. The prosecution has failed to establish a *prima facie* case against both accused persons in respect of the first count; 2. The prosecution has established a *prima facie* case against the 1st accused person in respect of the second count; 3. The prosecution has failed to establish a *prima facie* case against the 2nd accused person in respect of the third count; 4. Both accused persons have **NO CASE TO ANSWER** in respect of the first count and I proceed to **ACQUIT** them accordingly under section 210 of the Criminal Procedure Code; 5. The 1st accused person has a **CASE TO ANSWER** in respect of the second count and I hereby **PLACE HIM ON DEFENCE;** 6. The 2nd accused person has **NO CASE TO ANSWER** in respect of the third count and I proceed to **ACQUIT** him accordingly under section 210 of the Criminal Procedure Code; 7. As a result, the 2nd accused person shall be released from custody forthwith, unless otherwise lawfully held. **DATED, SIGNED AND DELIVERED N OPEN COURT AT MAKINDU THIS 5TH DAY OF AUGUST, 2026.** **Y.A SHIKANDA** **SENIOR PRINCIPAL MAGISTRATE.**