https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/262

Republic v Matere (Criminal Case E109 of 2026) [2026] KEMC 262 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEMC 262 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E109 of 2026 FM Mulama, RM June 30, 2026 Between Republic Prosecutor and Benard Situma Matere Accused Judgment A. Brief Facts. 1.The accused person is charged with the offence of preparation to commit a felony contrary to section 308(1) of the Penal code. It is said that the on the 15th day of April 2026 at around 0345 hours at Belebele in Hindi Lamu County with others not before court Benard Situma Matere was found armed with dangerous weapons to wit machete, knife, hacksaw and pliers in circumstances that indicate that they were so armed with the intent to commit a felony namely stealing. 2.3 witnesses were called were called to testify on behalf of the state and after their testimony the accused was found to have a case to answer and upon being called to offer his defence, he opted to remain silent as of right. 3.I have considered the evidence on record as well as the exhibits produced by the state. The Prosecution’s case. 4.It is the prosecution’s case that on the material day and time Pw 1 Bethwel Jackson Michael being a security guard at Hindi Magogoni Water Users Association (HIMWUA) heard someone cutting the fence and went to the window and saw 2 men cutting the fence and he let them cut the fence and after they gained access into the property, the went straight to the solar panel control box. He then ambushed them while armed with an arrow. One of the suspects managed to escape and he arrested the accused. 5.With him the accused had several items to wit hacksaw, knife, pliers, machete, red vest, yellow, blue and green sack and a pair of black sandals which items were later produced as exhibits by the Investigating officer. 6.Pw 1 then called Pw 2 for assistance. Pw 2 a colleague was guarding the other side of HIMWUA. He responded to the call and together they called their supervisors and the accused was arrested. Both witnesses were not cross examined on the matter in issue but on the issue of identity of the accused. B. Issue for Determination. a.Whether the charge of preparation to commit a felony has been proved. C. Analysis and Determination. Whether the charge of preparation to commit a felony has been proved. 7.Section 308(1) of the Penal Code, Cap 63 provides as follows:- 308.Preparations to commit felony(1)Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years. 8.This provision of the law was discussed in Criminal Appeal No. 59 of 2000 Manuel Legasiani & 3 Others versus Republic (2000) eKLR where the Court of Appeal placed much emphasis on the word “preparation”; in its decision, the Court asked itself whether in the case before had any evidence of preparation to commit a felony. In unraveling this question the Court said:-“The word preparation is not a term of art. In its ordinary meaning it means “the act or an instance of preparing” or “the process of being prepared”. This is the meaning ascribed to the word “preparation” in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to committed, has to be shown. Mere possession of a firearm not coupled with such an overt act is not an offence under section 308(1) of the Penal Code. If the offence is a lethal weapon and is held without a licence another offence may be indicated.” 9.In order to convict under section 308(1) of the Penal Code this trial court must be satisfied beyond all reasonable doubt that the accused person was not only in possession of what has been described as “dangerous or offensive weapon” to wit a hacksaw, knife, pliers and machete but must also demonstrate that there was some act tending towards what would amount to preparation to commit a felony. 10.It is the evidence of Pw 1 that he saw the accused and the other suspect who escaped cut the fence and thereafter gained access to HIMWUA and went straight to Solar panel control box. He then ambushed them and one escaped as the accused was arrested. After the arrested the exhibits were recovered from him among them empty sacks. 11.A look at the exhibits produced and the circumstances of the case, the accused was prepared to steal. I say this because from the evidence after they gained access to the premises, they went straight to the Solar panel control definitely with the intention to steal. This is clear from my analysis of the testimonies by the witnesses. This was a rebuttable assertion that the accused ought to have challenged through cross examination and/or in defence but as for cross examination, he did no cross examine the witnesses on the substance and the weight of evidence implication him but he sought to know whether the witnesses knew him prior to the incident and when it was time for him to defend himself, he opted to remain silent. 12.It is thus clear from the evidence on record, by the accused cutting the fence while armed with the weapons produced in evidence and approached a place that had the solar panel control box, the accused indeed did an act tending towards what would amount to preparation to commit a felony in this case being stealing. I do find and hold in similar strengths. 13.In totality I do find that the evidence by the prosecution was not challenged and was properly corroborated and placed the accused at the scene of the accident. I also find that despite the time of the night, the issue of identification does not arise as the suspect was arrested and presented to the police and ultimately presented to court. 14.In the end, I do find that the prosecution’s case against the accused was proved beyond any reasonable doubt. D. Conclusion and Disposition. 15.The accused person is guilty of the offence of preparation to commit a felony contrary to section 308(1) of the Penal code under section 215 of the Criminal Procedure Code. 16.Orders accordingly. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS… 30TH …DAY OF … JUNE … 2026.F. M. MULAMARESIDENT MAGISTRATEIn the presence of:Court Assistant:- Abuswaleh.Idris Tomno for DPP.Benard Situma Matere