https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/434

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT** **AT WAMUNYU** **M.C.C.R NO. E203 OF 2025** REPUBLIC ……..…………………. DIRECTOR OF PUBLIC PROSECUTIONS -*VERSUS*- TONNY KIMANTHI MAWEU ..............……..…..…………….…… ACCUSED **JUDGEMENT** **SUMMARY OF THE CASE:** 1. **Jacinta Kathina Matheka** (PW1), a businesswoman in Mwala town operating an M‑pesa shop under the name Trojan and dealing in mobile phones, testified that on 8 April 2025 she received a call from a neighbouring trader informing her that her shop had been broken into. On rushing to the premises, she found that thieves had gained entry through Maureen Kavata’s adjoining shop and stolen all the phones she had on sale, leaving only the empty boxes. She estimated her loss at approximately Kshs. 300,000 and produced delivery notes, invoices, and picklist statements from Safaricom, together with her business permit, as exhibits. PW1 stated that five months later she was contacted by officers from the Directorate of Criminal Investigations, who informed her that two suspects had been arrested. She emphasised that she had never seen the accused before. 2. **Maureen Kavata (PW2)**, the proprietor of an agrovet in Mwala town, testified that on 8 April 2025 she received a call from her assistant informing her that the agrovet had been broken into through the back door. She further stated that the middle door adjoining the M‑pesa shop operated by PW1 had also been forced open. PW2 immediately contacted PW1 to alert her of the incident, after which police officers from Mwala arrived at the scene. The matter was later formally reported and statements were recorded at Masii Police Station. 3. **Police Constable Cecilia Mumbi** (PW3), a DCI officer based in Kayole, testified that on 29 August 2025 she received a request from DCI Mwala officers to assist in arresting a suspect residing in Njiru in connection with a breaking and stealing incident reported at Mwala under OB No. 4/08/04/25. Acting on the information provided, she and a colleague proceeded to Njiru and arrested a woman named Magdalene, who was found in possession of a Neon phone, black in colour, IMEI No. 35960466. Upon questioning, Magdalene led them to the residence of Tonny Kimanthi, with whom she lived as husband and wife, and disclosed that he had given her the phone as a gift. 4. The officers recovered from the accused an Infinix phone, black in colour, IMEI No. 863965073379976, which was among the items listed as stolen in the case. Both phones were produced in evidence as P. Exh. 8 and P. Exh. 9. The accused was booked at Kayole Police Station under OB No. 53/29/08/25 before being handed over to Mwala DCI officers for further action. 5. **Jackson Mutunga Kaindi (PW4)** testified that on 27 July 2025 he received a call from an unfamiliar number while travelling to Wote and later returned the call. The caller, a DCI officer named **Benson Mutune**, inquired whether PW4 had a line ending in 811, to which he confirmed that he had given it to his daughter, **Magdalene Mwongeli Mutua**. PW4 was asked to attend Kayole Police Station, where on 1 August 2025 he recorded his statement. He explained that his daughter was in Nairobi seeking employment, and on 29 August 2025, DCI officers from Kayole used him to trace her at Njiru area. Upon arrival, the officers arrested Magdalene, who was found with a phone she disclosed had been given to her by her husband. She then led the officers to the house where the accused was also arrested. 6. Corporal Bethwel Lagat (PW7) testified that he was assigned investigation duties alongside CPL Mureithi and visited the scene of the break‑in, where he established that forty‑seven mobile phones had been stolen from their boxes. Fortunately, the boxes contained IMEI numbers, which enabled tracing of the stolen devices. In mid‑July 2025, one of the phones bearing IMEI No. 350109530527782/90 was detected, its SIM card registered to Winfred Ndanu, the mother of Tonny, who confirmed that the phone had been given to her by the accused. PW7 further stated that Kayole DCI officers arrested the accused, and he personally collected two suspects together with a Neon Smarter phone IMEI No. 35010953047047/90 and another Neon Smarte phone IMEI No. 350109530527782/90, the latter used by Winfred Ndanu. Both phones had been given to the accused’s mother and wife, and PW7 concluded that the accused was responsible for breaking into the shop and stealing the phones. **DEFENCE CASE:** 1. In his sworn testimony, the accused asserted that all the phones produced in court belonged to him and had been taken by the investigating officer solely for purposes of inquiry, with an assurance they would be returned after the case concluded. He emphasised that no eye witness had identified the person who broke into the premises and that even the complainant did not recognise him in court. He pointed to inconsistencies in the prosecution’s evidence, noting that PC Cecilia had testified Magdalene’s phone bore IMEI No. 350109530467054, which differed from the IMEI numbers of the phones presented in court, while CPL Lagat claimed to have arrested him with two Neon Ray phones that were not among the exhibits. According to his written submissions, the phones produced were instead a Tecno Spark and an Infinix. He further discredited Magdalene Mwongeli’s testimony as untruthful, alleging collusion with her father to frame him, and highlighted that his mother, Winfred Maweu, had testified she was given a Neon Ray phone by him which was not presented in court. On this basis, the accused urged the court to dismiss the charges against him. **ANALYSIS** 1. The accused faced two distinct charges i.e. that of breaking contrary to section 306 (a) of the Penal Code and entering as well as that of stealing contrary to section 275 thereof. He also faced the alternative charge of handling stolen goods contrary to section 322 (1) as read with section 322 (2) of the Penal Code. 2. In view thereof, this court finds that the following points fall for determination in this case: - 3. **Whether the prosecution has established beyond reasonable doubt that the accused broke, entered, and stole from the complainant's shop on 8th April 2025 (Counts I & II)?** 4. **Whether the accused is guilty of the alternative charge of handling stolen goods?** 5. The onus of proving criminal cases always rests with the prosecution and does not shift to the accused at any one given time. It is the law in Kenya as entrenched in the Constitution under **Article 50 (2) (a)** that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at **section 107 (1)** provides thus: ***“whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.”*** 6. As to what constitutes the burden of proof beyond reasonable doubt, the case of **Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373** by Lord Denning provides as follows: **“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail 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 of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”** 1. **WHETHER THE ACCUSED PERSON BROKE, ENTERED AND STOLE FROM THE COMPLAINANT?** 2. It is an undisputed fact that a break-in occurred at *Trojan* M-Pesa shop on 8th April 2025, and forty-seven mobile phones were stolen. This was verified by PW1, PW2, and the physical state of the adjoining doors. However, there is completely no direct, visual, or forensic evidence (such as fingerprints) linking the accused to the scene of the crime on that night. PW1 explicitly testified that she had never seen the accused before. 3. The prosecution’s case rests entirely on the circumstantial evidence of the recovery of two phones alleged to have been stolen. In this regard, the doctrine of recent possession then finds a footing in determining this case. 4. To analyze this, the court is guided by the binding precedent established by the Court of Appeal in ***David Mugo Kimunge v Republic [2015] eKLR***, which sets out the four mandatory pillars of the doctrine: 5. *The property must be found with the suspect;* 6. *The property must be positively identified as the complainant's;* 7. *The property must be stolen; and* 8. *The property must be* ***recently*** *stolen.* 9. It matters not that the accused was not found in it’s actual possession. So long as the prosecution can prove that the accused had constructive possession of the items. In the case of **BEUMAZI NDORO CHAILA v REPUBLIC [2016] eKLR** the Court of Appeal in this regard had this to state: - ***“In proving possession, the prosecution must establish that the accused had possession of the property in question, i.e. had custody of or control over that property and intended to have custody or exercise control over it. The fact that a third party has physical possession of the property does not mean it could not have been possessed by the accused. In this regard, the prosecution does not need to prove that the accused was actually caught with the property in his or her possession. It is sufficient to prove that the accused possessed the property at the relevant time.”*** 1. In this case, **Magdalene Mwongeli Mutungi** (PW 5) stated that between the dates of 7th April, 2025 and 8th April, 2025, the accused gifted her a Neon ray touch screen phone. It was produced as P. Exh. 8 That they used to live as husband and wife at the time even though they had not solemnized their marriage. She placed her sim card line no. 0707 … .38. That is the same line and phone that **Police Constable Cecilia** and **Cpl Bethwel Lagat** recovered from PW 5 having tracked it. The line was given to Magdalene by her father **Jackson Mutunga Kaindi** (PW 4) who was used to track Magdalene down. He corroborated this information. 1. The complainant produced delivery notes (P. Exh. 1), Invoices (P. Exh.2, 3 & 4) and a picklist statement from Safaricom clearly identifying the phone Magdalene had. This was proof that the complainant owned the phone. It is also an undisputed fact that a break-in occurred at *Trojan* M-Pesa shop on 8th April 2025, and forty-seven mobile phones were stolen. This was verified by PW1, PW2, and the physical state of the adjoining doors. 2. However, the accused in is defence and submissions stated that the phones produced did not match what was recovered from Magdalene and his mother. That the phones produced in court was a Tecno Spark and the other an Infinix button phone. This is not entirely true. PW 3, PC Cecilia recovered a Neon black phone with **IMEI 350109530467047/54** from Magdalene. She then went ahead to recover an infinix button phone **IMEI 863965073379976** from the accused’s mother. Magdalene Mwongeli Mutungi (PW 5) in her testimony said the accused gifted her a neon ray touch screen phone which tallies with PW 3’s testimony. Winfred Maweu (PW 6) testified that in April, 2025 paid Kshs. 3,000/- for a smart phone and not a button phone as claimed by PC Cecilia (IMEI 350109530527782). The investigating officer Cpl Lagat stated that he recovered from Winfred a phone **IMEI 350109530527782/90** which tallies with what the accused’s mother stated in court. He also said a Neon smart phone **IMEI 35010953047047/54** was recovered from Magdalene. 3. In view of this, the IMEI’s seem to tally though the descriptions of the phones seem to vary a little with regards to the phone recovered from Winfred Ndanu (PW 6) which is normal in recollection of events by witnesses. The courts recognize that human memory and handwritten police logs (OB books, initial statements) can suffer from minor human errors. In the High Court decision of ***Fredrick Odhiambo Ogola v Republic [2019] KEHC 267 (KLR)***, the judge explicitly ruled on this exact issue: ***"Minor discrepancies in the description of the phone would not vitiate the appellant's conviction for the offence of handling stolen property as he did not lay claim to it nor explain how he came into its possession."*** 1. The accused, in his sworn defence, claimed that all the phones produced in court were his personal property. However, he failed to offer any commercial receipts, stock records, or lawful explanations as to how he became the owner of multiple retail devices whose unique serial IMEI numbers perfectly matched the stolen stock list of PW1's shop. The accused could not logically have in his possession stolen items which were also his. 2. From all the foregoing, this court is satisfied that the accused was in possession of stolen phones at the material time. He then gave them to his lover and mother. The stolen phones were properly identified to belong to the complainant, Jacinta Kathina Matheka. The accused gave the phones to PW 5 and PW 6 in April, 2025 shortly after the break in at the Trojan shop on the night on 7th April, 2025 leading to 8th April, 2025. 3. Applying the doctrine of recent possession as affirmed in the authority of ***Chaila***, the court holds that the most logical inference that can be drawn from the evidence on record is that the accused was not merely a handler but the perpetrator. He broke into the complainant’s shop, entered unlawfully, and stole the mobile phones therein. The prosecution has proved the offences of **breaking into a building contrary to Section 306(a)** and **stealing contrary to Section 275 of the Penal Code** beyond reasonable doubt. The accused is accordingly convicted on both counts. The alternative count is rendered moot. **CONCLUSION:** 1. Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of the laws of Kenya the accused person is hereby convicted on the two counts of the offence of Breaking into building and committing a felony therein contrary to **section 306 (a) & (b)** of the **Penal Code** as well as that of **stealing** contrary to **section 268** as read with **section 275** of the **Penal Code.** Dated this 3rd day of AUGUST, 2026 at Wamunyu Law Courts.  **HON. P. E. NABWANA** **SENIOR RESIDENT MAGISTRATE** **IN THE PRESENCE OF: -** For DPP: Mati Accused: present Court Assistant: Kamoni N.