Republic v Moses Wanjala Masibo

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E1190 OF 2025** **REPUBLIC……………………………………………………………………………………..DPP** **VERSUS** **MOSES WANJALA MASIBO………………….......................................ACCUSED PERSON** **JUDGMENT** 1. Moses Wanjala Masibo (“the Accused Person”) was arraigned on 10th November 2025 to answer to a charge of stealing stock contrary to section 278 of the Penal Code. 2. The particulars of the offence are that: *On the night of 06th – 07th November 2025 at Kasosi village, Luuya Location in Bungoma Central Sub-County within Bungoma County, the Accused Person jointly with others, not before the court, stole one heifer black and white in colour valued at Kshs. 30,000/= the property of Erick Wekesa Mukhwana* 1. The Accused Person was also called upon to plead to an alternative charge of handling stolen property contrary to section 322 (1)(2) of the Penal Code, whose particulars are: *On the 07th day of November 2025, at around 1217hrs at Nalondo Police Station in Bungoma Central Sub-County within Bungoma County, otherwise than in the course of stealing, the Accused Person dishonestly retained one heifer black and white in colour, knowing or having reasons to believe it to be stolen property* 1. The Accused Person denied all the charges facing him. Consequently, this matter was set down for hearing for the prosecution to prove their case against the Accused Person beyond reasonable doubt. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Erick Wekesa Mukhwana** testified that on 06th November 2025, while travelling back home in Luuya from Nairobi, he received information that his black heifer had been stolen. 2. When he arrived at his home, he found a crowd of people at the Accused Person’s home. He inquired from the crowd about what had happened when he was informed that the Accused Person had been found with a stolen cow, and had been taken to Lutaso Police Post. 3. He proceeded to Lutaso Police Post, where he found the Accused Person in the police cell. He identified his stolen heifer at the Police Post. 4. **PW2 Eliud Wanyonyi Sibalile** is the Kasosi – Luuya village elder. His testimony was that on the night of 06th November 2025, he received a call from Bituyu police officers who informed him that the Accused Person had been arrested with a cow suspected of having been stolen. 5. He proceeded to the police station while in the company of the complainant’s uncle, where they found the Accused Person with the complainant’s stolen cow. 6. **PW4 No. 57067 CPL Daniel Chacha** of Nalondo Police Station investigated this case. He recalled that on 07th November 2025, PW1 went to the police post at around 0900hrs and reported that his black-and-white cow, which had been locked in the cowshed the previous evening, had been stolen. 7. He added that later that evening, PW1 received information that his cow had been recovered in Kibingoi and that the Accused Person was being held at Lutaso Police Post for having been found with that cow. PW1 reportedly identified his missing cow at Lutaso Police Post. 8. The Accused Person and the recovered cow were taken to Nalondo Police Station, where he took photos and caused the same to be processed by the scenes of crime personnel. 9. He produced the photos (Pexh. 1 (a) – (d)) and the certificate of print (Pexh.2) as exhibits. 10. In cross-examination, he added that the Accused Person was the perpetrator of the offence herein since he was found in possession of the stolen cow. He further stated that the Accused Person was arrested when he tried to sell PW1’s cow to an informer who did not record his statement. **The Accused Person’s Case** 1. This court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused Person elected to give sworn testimony. He did not call witnesses. 2. **DW1 Moses Wanjala Masibo** testified that on 07th November 2025 at around 1000hrs, he was at his home when he saw PW1’s cow grazing in Wanyonyi’s maize farm. 3. He led the cow to PW1’s home when PW1 accused him of stealing the cow. He was later arrested by the police and arraigned. He accused the prosecution of framing him for the offence herein. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the charges preferred, the evidence adduced by the prosecution witnesses, and the Accused Person’s defence. The only issue for determination is whether the prosecution has proved its case against the Accused Persons beyond reasonable doubt. 2. The Accused Person faces a charge of stealing stock contrary to section 278 of the Penal Code which provides thus: *“278.If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, whether, goat, or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years."* 1. Section 268 of the Penal Code, on the other hand, defines “stealing” in the following terms: *(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—* 1. *an intent permanently to deprive the general or special owner of the thing of it;* 2. *an intent to use the thing as a pledge or security;* 3. *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;* 4. *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;* 5. *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;* 6. This court’s reading of the authorities above leaves no doubt in this court’s mind that for the prosecution to prove the charge facing the Accused Person beyond reasonable doubt, the prosecution must prove that the Accused Person permanently deprived the complainant of his cow. 7. The evidence led by the prosecution witnesses was that on the evening of 06th November 2025, PW1’s cow was secured in its cowshed only for the said cow to be found missing the following morning. 8. A search for the missing cow ensued, only for the police officers from Bituyu to inform PW2 that the Accused Person had been found with a suspected stolen cow. PW2 added that he proceeded to the police station while in the company of PW1’s uncle when they found the Accused Person with the cow at Bituyu Police Post. 9. The Accused Person and the cow were later led to Nalondo Police Station, where PW1 identified his missing cow. PW1 also identified his missing cow through the photos produced before this court. 10. The evidence above was not impeached by the Accused Person even after cross-examination. The foregoing shows that the prosecution proved to the required standards that the recovered cow belonged to PW1. 11. It is not in dispute that a cow is something capable of being stolen under the law, and that by the cow being taken from its cowshed, whoever took it from the cowshed had an intention of permanently depriving PW1 of the same. Therefore, the next question is whether the Accused Person was the person who stole the cow from PW1’s home. 12. It is common ground that no one saw the Accused Person stealing the cow. The Accused Person was arraigned for the offence herein when he was found with the missing cow, some few hours after the same had been stolen. This being the case, it follows that the prosecution’s case against the Accused Person that the Accused Person stole PW1’s cow was predicated on the doctrine of recent possession. 13. The doctrine of recent possession was eloquently explained in **Isaac Ng’ang’a Kahiga & another vs. Republic [2006] eKLR**, where the Court of Appeal (Tunoi, Bosire & Githinji, JJ.A.) opined thus: ***“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.”*** 1. Similarly, in **Omoto v Republic (Criminal Appeal 190 of 2018) [2025] KECA 9 (KLR)**, the court rendered itself on the doctrine of recent possession as follows: *“This Court restated the doctrine and the elements which must be proved before the doctrine can be applied in Erick Otieno Arum v Republic Criminal Appeal 85 Of 2005 [2006] eKLR where it held:* *In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”* 1. In the present case, the Accused Person was found with PW1’s cow, which had been stolen from PW1’s home some hours earlier. PW1 identified the cow. The Accused Person conceded in his defence that the cow belonged to PW1. 2. The above shows that the prosecution proved beyond reasonable doubt that the Accused Person was found with PW1’s recently stolen property. 3. Guided by the ingredients of the doctrine of recent possession set out above, the next question is whether the Accused Person gave a reasonable explanation on how he got into possession of PW1’s stolen cow. 4. The Accused Person stated in his defence that he was only arrested for this offence when he led PW1’s cow to the Accused Person’s home from Wanyonyi’s maize farm, where the said cow had reportedly strayed. 5. Weighing the Accused Person’s defence against cogent evidence by the prosecution that PW1 and PW2 came to know that the Accused Person had stolen PW1’s cow when they were called to the police station to identify the cow, this court is not convinced that PW1 who did not have any grudge against the Accused Person, at least per the evidence on record, could come up with trumped up charges against the Accused Person as alleged by the Accused Person. 6. It is also worth noting that the Accused Person did not bother to call Wanyonyi as a defence witness to support his defence. This does not mean that this court has shifted the burden of proof to the Accused Person. That burden of proof remains with the prosecution at all times. 7. This court is simply saying that upon the Accused Person mentioning Wanyonyi, the evidential burden shifted to the Accused Person to lead evidence from the said Wanyonyi in accordance with section 111 of the Evidence Act. 8. Given the reasons above, this court dismisses the Accused Person’s defence in its entirety, given that the same is spurious, an afterthought, and a mere denial which did not cast any reasonable doubt on the prosecution’s case. 9. It is against this backdrop that this court finds and holds that the prosecution properly relied on the doctrine of recent possession in identifying the Accused Person as the perpetrator of the offence herein. **DETERMINATION** 1. The upshot of the foregoing is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of stealing stock contrary to section 278 of the Penal Code. 2. The alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code is moot. 3. Judgment accordingly. **Judgment read, signed and delivered in open Court at Bungoma this 09th day of March 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Accused Person Ms. Achieng for ODPP C/A: Mr. Rioba