https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/509

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT CHUKA** **CRIMINAL CASE NO. E543 OF 2025** **REPUBLIC…………………….……………………………………………PROSECUTOR** **VERSUS** **FRANCIS MAWIRA AND MARTIN MURIMI…………....……..……………ACCUSED** **JUDGMENT** 1. The accused persons herein face the charge of breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code. The particulars of the offence were that on 11/08/2025 at Nkangani Sub-location, Maara Sub-County, Tharaka Nithi County, broke and entered a dwelling house of EAPC MAARA MIXED DAY AND BOARDING PRIMARY SCHOOL with the intent to steal and did steal one and three quarter gummy bags of beans valued at Kshs. 20,500/- the property of the school. 2. The accused was also charged with the alternative count of handling stolen property contrary to Section 322(1)(2) of the Penal Code. The particulars are that on 11/08/2025 at Nkangani Sub-location, Maara Sub-County, Tharaka Nithi County, otherwise than in the course of stealing retained about 3kgs of beans, knowing of=r having reason to believe them to be stolen goods. 3. The accused persons were arraigned on 26/08/2025 and they both pleaded not guilty. A plea of not guilty was then entered on both counts. The matter proceeded for hearing and the prosecution called a total of four (4) witnesses after which it closed its case. 4. The accused were placed on their defence and neither party filed submissions. PROSECUTION’S CASE 1. PW1 SILAS NTHIGA testified that he was a watchman at Maara Day School at the time of the offence and on 11/08/2025 he got to work at 6pm for his shift and found the window to the store open and upon peeping, he found beans scattered on the ground and he asked the head teacher Mr. Karani who directed that he block the window and he left for home after his shift. He testified that a window pane was missing and pointed to the damaged window. He testified that the principal had key s to the store and the incident was reported at Ntumu police station. 2. In cross-examination, he confirmed that he did not see anyone break in and indicated there was no cctv footage. 3. PW2 RHODA MUKAMI testified that she is a cook at Maara Primary and that the 2 accused persons live near the school and on 12/08/2025 she was called by the head teacher at around 9am and asked if she knew of the break in at the school and that she was directed to go to school and arrived at 10:30am and she found the head teacher, driver and a colleague Martin Mwenda. That she took a look at the store and found beans from one of the sacks missing and that a window had been broken into and that it was the one near the door and that there was a wooden plank. 4. In cross-examination, she denied knowing whether the 1st accused worked at the school and that there were beans scattered both in and out of the store and that the window was open and that the police moved the tables and chairs and confirmed that the photographs were taken on the same date and that they found ¾ sack of beans with the 2nd accused. 5. PW3 MILTON KARANI testified that the is the head teacher of EAPC MAARA MIXED DAY AND BOARDING SCHOOL and confirmed pw1 was the watchman and that on 11/08/2025 at around 6:50pm he got a call from PW1 that he had found beans on the window pane by the window close to the door to the store on both sides and that he directed that PW1 seal the place and the following day he went to school to confirm the situation and that is when he summoned the school cook. Upon arrival, they opened the store and confirmed there was food missing. One sack and ¾ sack had been stolen and a report was made. Later, he was informed that suspects had been arrested and that at the time of the incident, school was on recess and that they had someone who would watch the school during the day before the watchman arrived. 6. In cross-examination, PW3 confirmed that the caretaker and watchman did not mention the 2 accused persons and that the watchman stated that the building had been broken into. He confirmed that Rhoda was on duty on the date of the incident and that it was possible that she could have left the school when she was on duty and that keys are usually left in the office when school is on recess and confirmed that he carried out an informal investigation before reporting to the police and that is why he reported the incident on 16th of the said month. 7. PW4 Inspector Joseph Kathurima testified that he works at the CSI office in Chuka and confirmed that he is a gazetted officer and that on 3/11/2025 at 8am he got a report from PC Kaaria with 4 photographs of a broken into house and he produced a certificate of photographic prints and an exhibit memo form and produced all of them into evidence. In cross-examination he confirmed the images do not show the accused persons. 8. PW4 NO 111228PC DENNIS KAARIA testified that on 16/08/2025 the complainant visited the station with a complaint of a break in at the school where he was the headteacher and that he escorted the complainant to the school where they met the senior cook who was managing the stores when the schools were closed and that it was opened and that pictures of the scene were taken and statements recorded and that they arrested the 1st accused where they found beans in his house in a sack weighing 3kgs with a measuring cup and that it is the 1st accused who led them to the 2nd accused and that the two were escorted to the station and an inventory signed and that the accused indicated that he sold the beans to one Rose who declined to testify vide a letter on file. He further confirmed that the 2nd accused was not found with any beans and that it was the 2nd accused who directed them to the market where they had sold the beans. The IO indicated that Rose confirmed buying the beans and buying 31 tins. DEFENCE CASE 1. AC1 FRANCIS MAWIRA testified that on the day of the incident he was in his land parcel cultivating by himself and on the day of the arrest he was at his home and that Rhoda Mukami came with three other people and that he was asked where the stolen items were and he was asked whether he knew the 2nd accused and that he was escorted to a vehicle and later informed that he had stolen beans and denied doing the same. 2. AC 2 MARTIN MURIMI testified that on 11/08/2025 he was at home cleaning his space and he later left and on 25/08/2025 he heard a knock on the door and upon opening, he saw 3 men who identified themselves as police and they informed him that he had been suspected of stealing and he was escorted to the police car and that 2 officers later came with the 1st accused. He testified that no beans were found in his house and indicated that Rhoda Mukami who was in charge of the store according to her statement was not truthful and she lied that the she did not know the accused persons while the 1st accused is an in-law and that she is trying to disinherit the 1st accused who has been in custody since the case started. **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-Breaking into a building** 1. Section 306 of the Penal Code stipulates as follows: section 306 of the [*Penal Code*](https://kenyalaw.org/akn/ke/act/1948/81). The section provides as follows:"306.Breaking into building and committing felonyAny person who—(a)breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or(b)Breaks out of the same having committed any felony therein is guilty of a felony and is liable to imprisonment for seven years." 1. Breaking is defined in section 303 of the [*Penal Code*](https://kenyalaw.org/akn/ke/act/1930/11) as follows:"303.Definition of breaking and entering(1)A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever any door, window, shutter, cellar flap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building.(2)A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building." 2. For the prosecution to prove that an accused person broke into a building, it has to adduce evidence that the person has gotten entry into the building by breaking any part of the building or has opened any part of the building so as to gain entry into the building. The facts given by the prosecution in regard to count 1 were that there was one window pane missing that PW1 was sked to cover. Court hereby established that there was a break in reported. As to access to the store, it was held that the head teacher had the access keys as well as the school cook and it was not brought into evidence whether the lock was an inbuilt lock or padlock but that in the testimony tendered in Court, the door was not broken and neither was there any report or testimony of a damaged padlock. 3. Court has also noted that the photographs were taken several days after the incident and it was confirmed that certain furniture was moved in the store and that the exposed entry point had been covered on the directive of the school head teacher. 4. Court also notes that none of the prosecution witnesses brought forth the issue of identification of the beans that were recovered in the house of the 1st accused as those that belonged to the school. Neither the cook who was in charge of the store on the day of the incident nor the headteacher was able to indicate how they established the beans recovered form the house of the 1st accused were the same beans that went missing. 5. To this Court, the only way that would link the two accused persons to the missing beans would have been the alleged lady who the prosecution witnesses identified as the purchaser of some of the stolen beans. Court notes she declined to testify citing security issues without beinging any evidence or police report to buttress the same and therefore such evidence has not been substantiated. Court also notes that the issue of the accused having confessed to the offence was raised by the investigating officer. 6. To this Court, the issue of confessions has been well settled in law. The Court in analysis of the admissibility of the alleged confession refers to Section 25 of the Evidence Act which states that Section 25A which reads as shown below: *25A (1) A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and shall not be proved as against such person unless it is made in court before a judge, a magistrate or before a police officer (other than the investigating officer), being an officer not below the rank of Chief Inspector of Police, and a third party of the person’s choice.* *(2) The Attorney General shall in consultation with the Law Society of Kenya, Kenya National Commission on Human Rights and other suitable bodies make rules governing the making of a confession in all instances where the confession is not made in court.* 23. The rules envisaged under (2) above are known as the Evidence (Out of Court Confessions) Rules, 2009 (hereinafter the “Confessions Rules”.) The Confession Rules specify the rights of an Accused Person who wishes to record a confession. The Rules provide who is a recording officer and how such confession are to be taken. Looking at the Confession Rules and applying them directly to the case at hand, the Court notes the confession as alleged by the Prosecution witnesses cannot stand. 1. Court also notes that there was no eye witness to the breaking in and stealing of the beans form the school store. 1. Having considered the circumstances of this case, the prosecution evidence and the defence offered by the accused, I am not persuaded that the prosecution’s evidence was sufficient as to Count 1. There is indeed doubt as to the accused persons having broken into the house of the complainant and committed a felony. As it is trite, any evidential gaps in the prosecution case raising material doubts, must be in favour of the accused. (See **Pius Arap Maina -vs- Republic[2013] eKLR**). 2. As the court held in **Elizabeth Waithiegeni Gatimu -vs- Republic [2015] eKLR**;- *“To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right.* *An accused person is the most favourite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea.* *Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge……”* 1. **Considering all the above, with regard to count 1, I find that the evidence was not sufficient to win a conviction. I thus acquit the accused persons on the main charge** **under Section 215 of the Criminal Procedure Code.** **Alternative count: handling stolen goods** 1. Court on reading the charge sheet notes that there was an alternative count of handling stolen property and relies on the doctrine of recent possession. 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, the 2nd accused was not found with any beans in his house and as discussed in the Court’s analysis of count 1, the Court holds that the prosecution witnesses were unable to connect the 3kgs of beans they found in the house of the 1st accused as belonging to the school. 31. Considering all the above, with regard to the alternative count, I find that the evidence as to handling of stolen goods was not sufficient and hereby acquits the accused persons of the alternative count **under Section 215 of the Criminal Procedure Code.** Delivered, dated and signed at Chuka by Hon. Tracy Wanjiku Wachira (RM) this 12th Day of August 2026. **In the presence of**:- The accused persons in person Prosecution-Counsel Malinda Court Assistant-Eric and Norah