https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10547

Republic v Gicheri (Criminal Appeal E128 of 2025) [2026] KEHC 10547 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 10547 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E128 of 2025 DR Kavedza, J July 15, 2026 Between Republic Appellant and Laban Ndebu Gicheri Respondent (Being an appeal against the original conviction and sentence delivered on 21st August 2025 by Hon. Z. Abdul (PM) at Kibera Chief Magistrate’s Court Criminal Case no. E091 of 2023 Republic vs Laban Ndebu Gicheri) Judgment 1.The respondent was charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code. The particulars are that on 5th January 2023 at Karanja Estate in Kibra Sub-county within Nairobi County, the respondent stole a mechanic tool box containing tools all valued at Kshs. 114, 250 the property of Polycarp Omondi Agutu. In the alternative, he was also charged with the offence of handling stolen goods contrary to section 322(1)(2) of the Penal Code. He was thereafter acquitted of the main and alternative charge. 2.Being aggrieved, the appellant filed the present appeal challenging the respondent’s acquittal. In the petition of appeal, the appellant contended that the learned magistrate erred in law and fact for failing to appreciate that there was sufficient evidence adduced by the prosecution proving its case beyond reasonable doubt. The appellant thus prayed that the acquittal be substituted with an order of conviction or in the alternative, the respondent be convicted for the alternative charge of handling stolen property and he be sentenced accordingly. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution called two witnesses. PW1, Polycarp Omondi, testified that on 4th January 2023 he received a call from a client requiring assistance with a broken down motor vehicle. He returned to his workplace and discovered that his tools were missing. Shortly thereafter, he found the respondent by the roadside selling some of the missing tools and reported the matter at Kibra Police Station. 5.On the following day, PW1 accompanied by PW2, PC Aaron Muema, the investigating officer, returned to the same location where the respondent was selling the tools. Two of the four missing pop guns were recovered. The respondent stated that he had received the items from a third party. PW1 identified the recovered pop guns as his through distinctive markings he had made on them and produced a purchase receipt to prove ownership. 6.PW2 corroborated PW1's evidence. He testified that the respondent failed to give a satisfactory account of how he came into possession of the recovered items or to establish ownership. He arrested the respondent, escorted him to Kibra Police Station, and produced the recovered exhibits before the trial court. 7.During cross-examination, PW2 conceded that the complainant's store had not been broken into and that its gate had been left open. He further stated that the respondent dealt in second-hand tools along the railway line and that only two of the tools recovered from him belonged to the complainant. 8.At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the respondent on his defence. The respondent (DW1) admitted that the two pop guns belonging to the complainant were recovered from his possession but maintained that they had been left with him by one Muiruri, who promised to collect them but never returned. He stated that when the complainant arrived at his shop with police officers the following day, his explanation was ignored and he was arrested. Upon his release on cash bail, he traced Muiruri, who was arrested but never charged. 9.DW2, Harrison Maina Chege, testified that he assisted the respondent in tracing Muiruri and informed the Deputy OCS, who dispatched an officer to arrest him. DW3, Margaret Muthoni, the respondent's wife, similarly testified that she participated in tracing Muiruri. 10.After a full trial, the respondent was acquitted accordingly. 11.The appeal was canvassed by way of written submissions which have been considered and there is no need to rehash them. 12.The respondent was charged with the offences of stealing and, in the alternative, handling stolen property. The burden rested entirely upon the prosecution to prove each ingredient of the offences beyond reasonable doubt. That burden never shifts to an accused person. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning stated:“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 doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course 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 is possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice." 13.The offence of stealing is created under section 268(1) of the Penal Code, which provides:“A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal that thing." 14.Section 275 of the Penal Code further provides:“Any person who steals anything capable of being stolen is guilty of the felony termed stealing and is liable, unless owing to the circumstances of the stealing or the nature of the thing stolen some other punishment is provided, to imprisonment for three years." 15.The evidence adduced by the prosecution established that two pop guns belonging to the complainant were recovered from the respondent's possession and were positively identified through distinctive markings and purchase receipts. However, no evidence was led to show that the respondent took the items from the complainant's workplace or participated in their theft. PW2 expressly admitted that the complainant's store had not been broken into and that its gate had been left open. There was equally no direct or circumstantial evidence placing the respondent at the scene of the theft or connecting him with the disappearance of the complainant's tools. 16.The mere fact that the respondent was subsequently found in possession of two of the missing items, without more, did not establish the essential ingredients of stealing under section 268(1) of the Penal Code. I therefore find that the prosecution failed to prove the offence of stealing beyond reasonable doubt. 17.The alternative charge of handling stolen property is created under section 322(1) of the Penal Code, which provides:“A person handles stolen goods if (otherwise than in the course 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 realisation by or for the benefit of another person, or if he arranges to do so." 18.To sustain a conviction under section 322(1), the prosecution was required to prove not only possession of the stolen goods but also that the respondent knew or had reason to believe that the goods were stolen. 19.The respondent consistently explained that the two pop guns had been left in his custody by one Muiruri, who undertook to return for them. That explanation was not inherently implausible. More importantly, the evidence of DW2 and DW3 established that, after his release on cash bail, the respondent voluntarily assisted the police in tracing Muiruri. The prosecution did not dispute that Muiruri was traced and arrested. Despite his arrest, Muiruri was neither charged nor called as a prosecution witness to rebut the respondent's account or explain how he came into possession of the complainant's property. The prosecution equally failed to offer any explanation for that omission. 20.The failure to call Muiruri, who was central to the respondent's defence, entitled the court to draw an adverse inference that his evidence would not have supported the prosecution's case. In Bukenya & Others v Uganda [1972] EA 549, the former East African Court of Appeal held:“The prosecution must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have been adverse to the prosecution." 21.The respondent's conduct in assisting the police to trace the very person whom he alleged had left the pop guns in his custody was consistent with his defence and inconsistent with an intention to dishonestly retain stolen property. That explanation was never displaced by the prosecution. The evidence therefore fell short of proving that the respondent knew or had reason to believe that the pop guns were stolen, as required under section 322(1) of the Penal Code. 22.Upon a careful re-evaluation of the entire evidence, I am satisfied that the prosecution failed to prove beyond reasonable doubt either the main charge of stealing or the alternative charge of handling stolen property. The learned trial magistrate properly analysed the evidence, correctly resolved the doubts in favour of the respondent, and rightly entered an acquittal. I find no error of law or fact warranting interference with that decision. 23.The respondent’s acquittal is accordingly upheld, and the appeal is dismissed for lacking in merit.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 15TH DAY OF JULY 2026_______________ D. KAVEDZAJUDGEIn the presence of:Appellant PresentMr. Mutuma for the RespondentKarimi Court Assistant