https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/505

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT CHUKA** **CRIMINAL CASE NO. E999 OF 2024** **REPUBLIC…………………….……………………………………………PROSECUTOR** **VERSUS** **JAMES MUCHANGO MATE……………………..………………………..ACCUSED** **RULING** 1. the accused person faces the charge of stealing contrary to Section 268 as read with Section 275 of the Penal Code and the particulars are that on 2/12/2024 at Matinia market, Muiru location, Meru South Sub-County within Tharaka Nithi County, stole a thermos flask and 2 frying pans valued at Kshs.2,900/- the property of Mercy Wawera. 2. The accused person was arraigned on 16/12/2024 and he pleaded not guilty. A plea of not guilty was then entered. The matter proceeded for hearing and the prosecution called a total of two (2) witnesses after which it closed its case. 3. 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). 4. 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). 5. Neither party filed written submissions and the court proceeded to write its Ruling. **PROSECUTION’S CASE** 1. **PW1 MERCY WAWERA-** stated that on the day of the incident her Nephew came to her house and she asked him to go and open the hotel and later on she was informed by her Nephew, one Newton Murerwa that the accused had come and picked 2 pans and a thermos flask and that she reported the same and the accused was brought to court after the investigations were concluded. In cross-examination, she admitted that she did not see the accused take the items and she had not brought an eye witness. Further she indicated that she had no proof that the items amounted to the sum claimed in the charge sheet and that the accused was not found with the stolen items. 2. **PW2 IO NO 249754 PC WALTER OUMA** testified that one of the witnesses who was the witnesses declined to testify despite being bonded and that he ha earlier recorded his statement and that he received a report while at his station when the complaint complained that the accused unlawfully entered her hotel and took a flask and 2 frying pans and that he established that the accused was a customer of the complainant and that the complainant retained excess money that he had paid because the accused had an outstanding debt and that it is what prompted the accused to take the items form her shop when her Nephew was attending the hotel. He admitted in cross-examination that the accused was not found with the stolen items and that they assessed the value of the items using the street value of the items. **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 person was further 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 hotel. 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 both prosecution witnesses that hotel utensils namely a thermos flask and 2 frying pans were stolen from the complainant’s hotel. 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 were two chicken 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, the kitchen items are 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 complainants through the statements of the prosecution witnesses. The same being taken away without consent is read to mean that the sacks 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, the Complainant indicated that she was not at the hotel at the time and that her witness did not come to Court to testify. She also admitted that she did not bring any documents showing that she owned the items and the stated value indicated in the charge sheet. 11. Therefore, the Court notes that without the eye witness identifying the accused as the person who stole the items and noting the accused was not found with the items, the Court holds that the prosecution failed to establish a prima facie case as against the accused and hereby acquits the accused of the offence of stealing. Delivered, dated and signed at Chuka Law Courts by Hon. Tracy Wachira (RM) this 12th day of August 2026. In the presence of:- * Accused person and Counsel for the accused * The prosecution-Counsel Malinda * Court assistants-Eric and Norah