https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/510

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT CHUKA** **CRIMINAL CASE NO. E500 OF 2025** **REPUBLIC…………………….……………………………………………PROSECUTOR** **VERSUS** **BETTY MAKUMI AND FRIDAH KIBAMBA…………………………………….……………………..ACCUSED PERSONS** **RULING** 1. The accused persons herein face the charge of stealing contrary to Section 268 as read with Section 275 of the Penal Code and the particulars are that on 20/06/2025 at Chuka Township in Chuka North Sub-County within Tharaka Nithi County they stole a mobile phone make Infinix worth Kshs.32,000/- and also transferred money amounting to Kshs.84,773/- from m-pesa number 07138xxx to 073263xxx and 0115425xxx as they appear on the charge sheet, the property of Dickson Hamman Kariuki 2. The accused persons were arraigned on 12/08/2025 and they both pleaded not guilty. A plea of not guilty was then entered. The matter proceeded for hearing and the prosecution called a total of three (3) witnesses after which it closed its case. 3. The Court notes that either party filed written submissions before this Ruling. 4. This court has a duty to make a ruling upon the conclusion of the prosecution’s case on whether the accused persons herein have a case to answer or not. As a rule, when the evidence of the prosecution’s witnesses has been concluded and the court has formed an opinion that there has not been presented evidence that the accused person committed the offence, the court should, after hearing any arguments from either the prosecution or advocate of the accused enter a finding of not guilty. (See Section 306(1) of the Criminal Procedure Code). On the other hand, if the court holds the opinion that the prosecution has established a prima facie case, the court then should proceed to put the accused persons on their defence. (See Section 306(2) of the Criminal Procedure Code). 5. At this point, this court’s role is to consider the evidence on record and decide whether a prima facie case has been established to warrant the accused person to be put on his defence. Section 211 of the Criminal Procedure Code stipulates that a prima facie case is established where the evidence adduced by the prosecution is sufficient for the court to return a guilty verdict if no other explanation is offered by the accused person. (See Ramanlal Trambaklal Bhatt –vs- R [1957] E.A 332 at 334 and 335). Where the court is of the opinion that the prosecution’s evidence does establish a prima facie case, there is no need for a reasoned ruling for a case to answer. Reasons should only be given where the submission of no case to answer by the accused is upheld and the accused is to be acquitted. (See Festo Wandera Mukando v Republic [1980] KLR103). 6. **PROSECUTION’S CASE** 7. PW1-DICKSON HAMMAN testified that he is a clinical pharmacist at Chuka General Hospital and that he met the two accused persons at a bar in Chuka called Genesis and he was with a friend Anthony Nyaga on 20/06/2025 at around 10pm when he got to the club and he asked to be introduced to the 2nd accused who was called to the table where both he and Anthony were seated and they enjoyed a drink and later his friend left and he was left with Fridah and he later invited her to join him home to continue drinking and that they passed by a liquor store and bought alcohol before getting to his home. It was his testimony that the 2nd accused called the 1st accused and that an hour later he lost consciousness and woke up the next day at 10am and found his main door unlocked and both the accused persons were not there. That he noticed his house had been ransacked and could not find his mobile phone of Infinix model which was valued at Kshs.25,000/- That he realized that his KCB ATM was missing as well as his National identity card. That his friend. Anthony Nyaga came to visit later and that PW 1 explained what had happened and he later reported to the police and replaced his line and noted that Kshs.84,000/- was missing and he later went to DCI to lodge the complaint who were able to secure the m-pesa statement. It was his testimony that he went home with the 2nd accused at Midnight and that they used a motorcycle to get to the venue. 8. In cross-examination, PW1 he indicated he had not seen the 1st accused before and that he found out her name from the investigations. PW1 further stated that Accused 2 was introduced to him by his friend Anthony and that at first all he reported was the loss of his phone and not of his National ID or ATM. He denied being a customer of the 2nd accused or that he paid for sexual favours. He confirmed that money was withdrawn at 10 :36am and admitted that the numbers that received the sums did not belong to her. He denied going to a hotel the very month on 30th and denied giving her Prep and knowing that she was a sex worker. 9. PW2 PC NELSON MAINA Number 105357 testified that he is stationed at Chuka North DCI and that PC Morris Okinda is his colleague and that on 11/08/2025 PC Okinda asked him to accompany him to an arrest at Kibumbu area and they were driven by PC Njenga and they arrested both accused persons at the house of the 1st accused where they were sleeping and that in the house of the 2nd accused they found atm cards, identity cards and sim cards and some belonged to the complainant. 10. In cross-examination, PW2 confirmed the items were found in the house of the 2nd accused and admitted that he did not enter the 2nd accused’s house and was outside the house. He further indicated that he did not take photographs 11. PW3 NO 113854 PC MORRIS OKINDA testified that he is currently attached at DCI Tharaka North as an investigator and that at the time of investigation, he was stationed at Chuka North where on 23/06/2025 he was tasked to investigate this instant case and recorded a statement on a theft recorded vide OB 38/23/06/2025 by the complainant and that he recorded two statements and according to his investigations, the 2nd witness connected the 2nd accused to the complainant. He testified that he secured M-pesa statements and on 11/07/2025 he was tipped off by an informant of the whereabouts of the accused persons and together with his two colleagues PC Njenga and PW2, they went and arrested the 2 accused persons in the house belonging to the 1st accused and that the 2nd accused was directed to take the police to her house which was searched and IDs recovered including that of the complainant. Further, that they recovered Safaricom sim cards and ATM cards. 12. In cross examination he confirmed that the complainant recorded that he did not know how money moved from his account and confirmed the 1st accused’s number is not the number that received any sums and that none of the exhibits were recovered from her house. For accused 2, PW3 indicated that he was not by himself when he recovered the items produced and that all 3 entered the house and denied that the accused persons were forced into signing the inventory or that they had the inventory explained to them in a language they understood. PW3 indicated that he may have used Kiswahili to explain but was not sure. He admitted that the recipients of the money were neither the 1st or 2nd accused and that the complainant did not report a lost ID. 13. The prosecution closed its case. **Issues for determination** Whether the prosecution has proved its case as per the standard provided for in law **Issue 1** **Whether the Prosecution has proved its case according to the standard provided for in law** 1. I have considered the evidence tendered before me by both the prosecution and the defense. As a rule, the prosecution has a duty to prove by way of evidence the offence facing an accused person herein and the standard of proof is that of beyond any reasonable doubts. (See **Republic -vs- Patrick Ong’au Okioma [2021] eKLR).** In so doing, the prosecution has a burden to prove all the elements constituting an offence facing an accused person. **Count 1-Stealing contrary to Section 268 as read with Section 275 of the Penal Code** 1. The accused persons were charged with the offence of stealing contrary to section 275 of the Penal Code. The said section provides that;- *“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.”* 1. In my view, the elements of the offence herein cannot be established by reading of section 275 alone but the same should be read together with section 268 which defines “stealing.” Section 268 provides as thus;- *“268. Definition of stealing* *(1) 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, any property, is said to steal that thing or property.* 1. From the above definition it is can be said that the elements of the offence of stealing either taking anything capable of being stolen and the said taking being fraudulently and without claim of right. Stealing can also be constituted of converting any property to the use of another person, other than the general or special owner and the same being fraudulent. As such, the elements of the offence can be said to be dependent on the circumstances of the case. 2. In the instant case, the facts disclose that items were taken from the houses. The question therefore is whether the prosecution was able to tender evidence to prove the elements of the offence facing the accused to wit;- 3. Taking 4. Anything capable of being stolen 5. Fraudulently and without claim of right 6. By the accused 7. As to taking, it is the testimony of all prosecution witnesses that money and a mobile phone were stolen from the complainant’s house. 8. As to whether the thing was capable of being stolen, section 267 of the Penal Code outlines things that are capable of being stolen. I will not quote the whole of the section but in my view, the items in issue herein which were recovered and fall within the definition under Section 267(1) of the Penal Code (**inanimate thing whatever which is the property of any person, and which is movable).** To this court, these were items capable of being stolen. 9. As to whether the taking was fraudulent and without claim of right, Section 268(2) of the Penal Code provides for instances when taking can be said to be fraudulent. One of these instances are where the person takes the same with an intent permanently to deprive the owner. The Court notes the items belonged to the complainant. It was confirmed that the same belonged to the complainant through the statements of the prosecution witnesses. The same being taken away without consent is read to mean that the items were taken with the intention to permanently deprive the complainant. 10. As to whether the accused person was the one who took the stolen items produced into evidence, the Court has carefully gone through the testimonies of the 3 prosecution witnesses. 11. To this Court, the identification of the accused as the one who stole the goods is critical. The Court notes that neither of the accused persons were found with the mobile phone and neither of the accused persons are the ones who received the money. 12. To this Court, the investigators who are DCI officers ought to have traced the recipients of said money and brought them to Court if they could not explain how they received such sums. Further, as to the search done in the house of the accused persons, this Court holds that the same according to the witness testimonies was illegal and without a court order and a breach of privacy laws among other laws as the IO did not produce a search warrant but went ahead to search the houses of the two accused persons without one. 13. As to the items recovered, the Court notes that there is a discrepancy as to who else witnessed the IO retrieve the items form the house of the 2nd Accused as PW2 indicated that he did not enter the house while the IO indicated that he did not enter the house by himself but with his colleague. The same leaves gaps in their evidence and this is further to the issue of admissibility of the same. Lastly, the Court notes that the complainant and the IO under oath indicated that the complainant did not report a missing national identity card or ATM to the police. 14. Court has perused the inventories produced and notes that only one is duly filled with the 3 other documents on inventory of recovered items listing atm cards and IMEI numbers and sim card numbers are not duly filled as to the date and time the items were recovered, who was the officer and where they were recovered. Furthermore, some of the recovery forms do not list the names of those found with the items and all that is there are signatures and dates. Lastly, as to the issue of the language used by the IO to explain what the accused persons were to sign, the Court notes the IO indicated that he may have used Kiswahili to explain without certainty. Court notes that the same then brings into question as to whether the accused persons knew what they were signing when they appended their signatures on the forms which the Court has held above, were not duly filled. Court notes that it is mandatory for one to be informed in a language that they understand and the IO in this case was uncertain as to whether he complied with the same. 15. Court notes that the complainant indicated that he was heavily intoxicated and his memory is foggy on the events through the testimony he gave and that he did not know when he lost his mobile phone and in cross-examination, he confirmed that he did not know for certain that it was the accused persons who took his phone as he lost consciousness. 16. Therefore, the final critical element of the offence linking the accused persons to the offence has not been proved. 17. Court on reading the charge sheet notes that there was no alternative count of handling stolen property but notes that the Court has power to look into a lesser offence and has relied on the doctrine of recent possession. The Court is guided by Section 179 of the CPC .Section 179 states as follows: ”(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it.” 1. As is apparently clear, Section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offence, even though he was not charged with that offence. The court contemplated by section 179 can be either the trial court or the appellate court. **See Lucia Kasisa Mulinge v Republic [2018] KEHC 5733 (KLR)** 2. The Court has considered the doctrine of recent possession and holds that the principle is that if stolen recently stolen goods are found in possession of an accused who cannot explain his possession, there is a presumption that the person is the thief or handler of the stolen goods. In ***Chaama Hassan Hasa v. Republic*** (1976) KLR 6, 10, the Court (Trevelyan & Hancox, JJ.) put the matter as follows: *“[W]hat is generally referred to as the doctrine of recent possession, often expressed in this way:****that where an accused person has been found in possession of property very recently stolen, in the absence of an explanation by him to account for his possession, a presumption arises that he was either the thief or a handler by way of receiving (through not by way of retaining).******But this doctrine does not apply to all the cases. What has been laid down is that, where it is proved that property has been stolen and very soon after the stealing the accused has been found in possession of it, it is open to the tribunal of fact to find him guilty of stealing,******or of handling it by way of receiving:****see R v Seymour (1954) 38 Cr App Rep. 68;* 30*.* To this Court, neither the money nor the mobile phone was found in the possession of the accused and this was brought up in cross-examination of the prosecution witnesses who confirmed that the phone numbers that received the money did not belong to either of the accused persons and that the mobile phone was not found in the possession of either of the accused persons. Therefore, the alternative count cannot hold. 31. Considering all the above, with regard to the alternative count, I find that the evidence as to stealing was not sufficient and hereby acquits both the accused perons of the charge. Delivered, dated and signed at Chuka Law Courts by Hon. Tracy Wanjiku Wachira (RM) this 12th day of August 2026. In the presence of:- * Accused persons self-representing * The prosecution-Counsel Malinda * Court assistants-Norah Kawira and Eric Mwenda