https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/199

Republic v Koome (Criminal Case E052 of 2026) [2026] KEMC 199 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 199 (KLR) Republic of Kenya In the Nanyuki Law Courts Criminal Case E052 of 2026 D Ngayo, SRM June 30, 2026 Between Republic Prosecution and Dennis Mutwiri Koome Accused Judgment A. Introduction & Procedural Posture: 1.The Accused was charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code, Cap 63 Laws of Kenya. The particulars of the offence were stated to be that the Accused on the of Monday 19th January, 2026 at around 2330hrs, in Nanyuki town, Laikipia East Sub-County, Laikipia County, within the Republic of Kenya stole a luggage comprising of sandals worth eight thousand (8,000/=) property of Susan Njoki. 2.The Accused was arraigned before court on 26th January, 2026 when every element of the charge and its essential substance and ingredients were stated and explained to him in Kiswahili language to which he pleaded not guilty, thus, a plea of not guilty was accordingly entered by the court in respect of the charge. Consequently, a trial commenced in earnest. B. The Prosecution’s Case: 3.To prove its case against the Accuseds and discharge its evidentiary burden under section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, the Prosecution summoned three (3) witnesses. PW1, Susan Njoki, the complainant in the case, testified that on 19th January, 2026, she gave the Accused work to transport for her some luggage to her shop. It was her evidence that she gave the Accused keys to her shop and that while the Accused was transporting the luggage containing ladies shoes and sandals, she walked behind him. The following day, PW1 testified that she found the sack containing ladies shoes and sandals was missing. 4.Upon asking the Accused the whereabouts of the missing sack, PW1 testified that the Accused stated that he did not know where it was. She averred that it was only her and the Accused who had access to the shop stating that she trusted that he had taken the shoes to the shop. The shoes were said to have been worth Kshs. 8,000/=. Consequently, PW1 testified that she went and filed a report at the police station. 5.In cross-examination, PW1 testified that she left the Accused to transport the items to the shop, and that she waited for him outside. Further, she stated that she had agreed to pay the Accused 10/= per trip, and that she did not confirm if the missing bag with the sandals was in the shop stating that the Accused had switched off the lights. When she paid the Accused, PW1 testified that the Accused did not leave with anything. Further, she averred that the Accused transported the sandals in his third trip and that she followed him on this trip. 6.PW2, Onesmus Ndungu, testified that he was a caretaker/ security guard at the stalls that PW1 had a shop at. It was his evidence that it was in February, 2026 when the Accused was carrying PW1’s items, and that he took four large luggages. He averred that he did not see a small luggage. In cross-examination, he testified that the Accused greeted him when he took the luggage to the shop. He confirmed that he did not see a small luggage. 7.PW3, No. 234648 PC Josephat Kisia from Nanyuki police station was the investigating officer in the case. He testified on the report he received from PW1 concerning her shoes worth Kshs. 8,000/= said to have been stolen with the Accused being suspected of stealing the shoes. He testified that he asked the Accused where the missing shoes were and that when he could not account for them, he took action by charging the Accused with the offence of stealing. In cross-examination, PW3 testified that the shoes had been given to the Accused, and that one of the sacks containing the shoes was missing and the Accused could not account for them. C. Directions On A Case To Answer: 8.On 16th April, 2026, having carefully studied the evidence tendered by the Prosecution’s witnesses, the court was satisfied that the prosecution had established a prima facie case for the purposes of a finding that the Accuseds had a case to answer. Accordingly, the court placed the Accuseds on their defence. D. The Defence Case: 9.The Accused gave sworn evidence wherein he testified that he transported luggage for PW1 and that he was paid for his work. Later, he testified that he found out that PW1 had filed a complaint against him. In cross-examination, the Accused testified that he used to transport luggage for PW1, and that on the material day, he transported PW1’s luggage. Further, he confirmed that he knew where the luggage was stored and that he had access to the place although he averred that he could not access it without PW1’s permission. He also stated that he was not aware that PW1’s luggage was missing. E. Analysis & Determination: 10.Section 275 of the Penal Code provides as follows:“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.” 11.The essential element in a charge of theft is that the person accused fraudulently converts a property which is capable of being stolen so as to deprive the owner of such property. The evidence by PW1, PW2 and PW3 was to the effect that the Accuseds stole PW1’s shoes worth Kshs. 8,000/=. PW1’s evidence was that he had given the Accused work to transport the shoes for her to her shop and that she later learnt that one of the sacks containing the shoes was missing. She therefore blamed the Accused for the missing shoes accusing him of stealing them. PW2 on the other hand testified that he saw the Accused transporting the shoes to PW1’s shop, and that they later learnt that the shoes were missing. On his part, PW3 testified that he asked the Accused where the missing shoes were and that when he could not account for them, he took action by charging the Accused with the offence of stealing. 12.It is trite law that in a criminal trial, the burden of proof is always on the Prosecution. Throughout a criminal trial, an accused person bears no duty to prove his innocence. The burden is on the prosecution to prove their case. In the celebrated case of Woolmington vs. DPP,1 Viscount Sankey L.C succinctly stated as follows with regard to the issue of burden of proof:1[1935] A.C 462 pp 481“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 13.Having addressed the issue of burden of proof, I must, as a matter of necessity, deal with the standard of proof in criminal cases. There is little necessity for this court to address itself at length on this issue since the same is settled in law. As established in countless cases, the standard of proof required in a criminal trial is a very high one. Proof beyond a reasonable doubt is the highest standard of proof possible. Because a person’s liberty is at stake, this high standard is required by our judicial system. The best description of this standard was provided by Lord Denning in Miller -vs- Minister of Pensions2 as follows:2[1947] 2 All ER 372 (King's Bench)“...the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice. 14.In assessing whether the totality of the evidence now on record proves the crime the Accused is charged with beyond reasonable doubt, it is important to recall that to raise reasonable doubt as defined above, the Accused is not required to demonstrate that his version of events is probable. Instead, his version of events must only ultimately be reasonably possibly true. If so, the Accused would be entitled to an acquittal even though his version of events may be improbable. The test, therefore, is whether there is any reasonable possibility that the Accused’s version may be true. 15.In this case, the prosecution did not avail credible evidence which could be said was clear, consistent and constant throughout the trial to support the ingredient of the offence of stealing. PW1 indeed testified that she gave the Accused work to transport for her shoes to her shop. It was also her evidence that she followed the Accused while transporting the shoes. PW2 also testified that he saw the Accused transporting the shoes to PW1’s shop. The Accused denied stealing the shoes stating that he transported the shoes as asked and was paid for his work. It was not clear to the court at what point the shoes were stolen, and by whom. While the Accused had been engaged by PW1 to transport the shoes to her shop, the Prosecution failed to prove beyond reasonable doubt that the Accused stole the missing shoes. 16.A conviction must be founded on credible evidence that proves the Accused's guilt beyond reasonable doubt, not on conjecture, suspicion, or speculation. I am of the considered view that it would be unsafe for the court to base a conviction on speculation. Criminal liability must be established by evidence, and where the evidence leaves room for conjecture or mere suspicion, the benefit of doubt must be resolved in favour of the accused. 17.Given the foregoing analysis of the evidence by the respective parties, and after due and conscientious assessment of the totality of that evidence presented at the trial, I have come to the ultimate conclusion that the Prosecution has failed to prove its case against the Accused beyond reasonable doubt. Having failed to discharge its evidentiary burden, I find the Accused not guilty of the offence he is charged with in this case, and I accordingly acquit him under the provisions of section 215 of the Criminal Procedure Code. The Accused is therefore set at liberty unless otherwise lawfully held. JUDGMENT SIGNED, DATED AND DELIVERED IN OPEN COURT AT NANYUKI THIS 30TH DAY OF JUNE, 2026.HON. DANIEL NGAYO,SENIOR RESIDENT MAGISTRATE.IN THE PRESENCE OF:The Accused present in person;Ms. Akinyi for the ODPP; andMr. Dedan – C/A.