https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/129

Republic v Matheka (Criminal Case E1107 of 2021) [2026] KEMC 129 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEMC 129 (KLR) Republic of Kenya In the Makindu Law Courts Criminal Case E1107 of 2021 YA Shikanda, SPM May 28, 2026 Between Republic Prosecution and Ballack Matheka Accused Judgment The Charge 1.Ballack Matheka (hereinafter referred to as the accused person) is charged with two counts of the offence of Stealing contrary to section 268(1) as read with section 275 of the Penal code. The particulars of the first count are that on 7/1/2019 at Kibwezi town in Kibwezi Sub-county within Makueni County, the accused person stole Ksh. 229,000/= the property of Beatrice Wambui. The particulars of the second count are that on the same date and at the same place, the accused person stole Ksh. 67,290/=, the property of Anthony Ngatia Maina. When the plea was taken, the accused person pleaded not guilty to both counts, where after the matter was set down for hearing. The Evidence The Prosecution Case 2.The entire prosecution case was heard by another Magistrate who was subsequently transferred. When the matter came up before me, the parties proposed and the court directed that the matter proceeds from where it had reached. However, no further witness was called by the prosecution. The prosecution called two (2) witnesses in a bid to prove their case against the accused person. PW 1 Beatrice Wambui Wangui (hereinafter referred to as the 1st complainant) testified that on 7/1/2018 she gave the accused person Ksh. 229,000/= and asked him to deposit the money on his Mpesa account so that the 1st complainant could pay her supplier. 3.That the accused person asked the 1st complainant to confirm after 30 minutes if the money will have reached the supplier. After that period, the 1st complainant tried to call the accused person but he had switched off his phone. The 1st complainant looked for the accused person for over two weeks. She reported to the police where after the accused person was arrested in 2021 and later charged. The evidence of the 1st complainant was that she gave the money to the accused person in cash but no written record of their transaction was done. The 1st complainant stated that the accused person used to operate an Mpesa agency and would deposit money on the 1st complainant’s Mpesa account. 4.PW 2 Anthony Ngatia Maina (hereiafter referred to as the 2nd complainant) testified that he was a police officer at Kibwezi police station at the material time. That the accused person was his employee at an Mpesa agency. The witness stated that on 7/1/2019 the accused person was on duty at the Mpesa shop. That at about 11:00 am the 1st complainant called PW 2 and informed him that she had given the accused person Ksh. 229,000/= to deposit on a customer’s account. The 2nd complainant called the accused person but the latter was unavailable on phone. The 2nd complainant went to his shop but did not find the accused person. PW 2 later reported to the police. He was accompanied by another police officer back to his shop where they broke the inner door. The 2nd complainant found the phone that was being used to do Mpesa transactions. He did reconciliation and realised that there was a deficit of Ksh. 67,290/=. On 20/11/2021, the 2nd complainant was called and informed that the accused person had been arrested in Mombasa. The Defence Case 5.Upon being placed on his defence, the accused person elected to give a sworn testimony without calling any other witness. His testimony was quite brief. The accused person denied having committed the offence. He stated that he left Kibwezi on 2/1/2019 and shifted to Mombasa. That he was not at Kibwezi on 7/1/2019. The accused person further stated that the complainants were not his employers. Main Issues for Determination 6.In my opinion, the main issues that fall for the court's determination are as follows:i.Whether the complainants’ money was stolen as alleged;ii.Whether it was the accused person who stole the complainants’ money;iii.Whether the prosecution has proven its case against the accused person to the required standard. Analysis and Determination 7.I have carefully considered the evidence on record as well as the law applicable. In my considered view, for the court to convict an accused person, the prosecution must have proved beyond reasonable doubt the following:a.That the offence complained of was indeed committed; andb.That the evidence links the accused person to the offence complained of. 8.It is my further opinion that in order to prove that the offence complained of was indeed committed, the prosecution must establish the key ingredients of the offence. The prosecutor must offer credible and cogent evidence in support of each element of the offence. 9.Section 268 of the Penal code provides in part as follows:“(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.(2)A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say—(a)an intent permanently to deprive the general or special owner of the thing of it;(b)an intent to use the thing as a pledge or security;(c)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;(d)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;(e)in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner;and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question."Section 275 of the Penal code provides:“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." 10.For the first count, other than word of mouth, there is no documentary evidence to show that the 1st complainant gave the accused person the sum of Ksh. 229,000/= or at all. It is not clear from the evidence where the money exchange took place. There is also no evidence to show that there was any form of communication between the 1st complainant and the accused person on the material day or at all. The court wonders how a person would give out such a large sum of money without the recipient acknowledging receipt in any tangible form. The prosecution evidence indicates that the accused person was an employee of the 2nd complainant at the material time and that the offence was committed in the course of his employment with the 2nd complainant. 11.Other than oral testimony, no records were produced to prove that the accused person was an employee of the 2nd complainant at the material time. With the kind of work that the accused person was allegedly employed to do, there ought to have been documentary evidence that would prove his employment. Not even evidence of payment of salary or wages was adduced. As concerns the 2nd count, the 2nd complainant stated that he checked his phone for Mpesa transactions and did a reconciliation of his accounts and discovered that there was a deficit. No record of the reconciliation was produced in evidence. In fact, there is absolutely no evidence to show that the 2nd complainant operated an Mpesa agency where the offences were allegedly committed. No business records were produced in evidence to prove the loss of Ksh. 67,290/= by the 2nd complainant. The investigating officer was not called to testify. It is thus not known on what basis he caused the arrest of the accused person. In my view, this is not the kind of evidence where mere oral testimony would suffice. Either the investigations done were extremely shoddy or no investigations were conducted in this matter. 12.I have considered the accused person’s defence. I am aware that the accused person is not under duty to prove his defence or innocence. The accused person was not obliged to adduce evidence to prove his allegations. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt. This standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918). 13.Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. 14.I have no reason to disregard the accused person’s defence. The evidence against the accused person is wanting. It does not establish commission of the offences beyond reasonable doubt. What we have on record is mere suspicion. In the case of Joan Chebichii Sawe v Republic [2003] eKLR, the Court of Appeal held thus:“The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 1998 (unreported), Suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence” 15.Suspicion, however grave, cannot form a basis for conviction. The evidence does not irresistibly point to the accused person’s guilt to the exclusion of all others or at all. The evidence against the accused person is not cogent. There is room for assumption. The accused person may or may not have committed the offence. As a matter of law, the doubt must be resolved in favour of the accused person. Disposition 16.Having considered and analysed the evidence on record, I find that the evidence does not meet the threshold of "proof beyond reasonable doubt." Consequently, I make the following orders:1.The accused person is found not guilty of the offence of Stealing contrary to section 275 of the Penal code in respect of both counts;2.As the glove does not fit, I must, as I hereby do, acquit the accused person of both charges accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 28TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.