Republic v Musyoka & 2 others (Criminal Appeal E131 of 2026) [2026] KEHC 9208 (KLR) (30 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E131 OF 2026** **REPUBLIC………………………..…………………..…………..APPELLANT** **VERSUS** **ELASTUS MITAU MUSYOKA ………………………….….1ST RESPONDENT** **JOSEPHINE WANDOLO NDETI……………………..….2ND RESPONDENT** **CHARLES MICHEKA RATEMO………………………..…3RD REPSONDENT** *(Being an appeal against the original conviction and sentence delivered by Hon. C. M. Njagi (P.M) on 25TH August 2025 at Kibera Chief Magistrate’s Court Criminal Case No. E.252 of 2021 Republic vs Elastus Mitau Musyoka, Josephine Wandolo Ndeti , Charles Micheka Ndeti)* **JUDGEMENT** 1. The Respondents were jointly charged with the offence of stealing by servant contrary to section 268(1) as read with section 281 of the Penal Code. The 2nd Respondent faced an additional count of handling suspected stolen property contrary to section 323 of the Penal Code. Upon conclusion of the trial, all the Respondents were acquitted on all counts. 2. Aggrieved by the acquittal, the Director of Public Prosecutions lodged the present appeal. The Appellant contends that the trial court failed to properly evaluate the prosecution evidence and erred in acquitting the Respondents. It urges this Court to set aside the acquittal, substitute it with convictions on the respective counts, and impose appropriate sentences. 3. As this is a first appeal, this Court is under a duty to reconsider, re-evaluate and reappraise the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify. (See **Okeno v Republic [1972] EA 32.)** 4. PW1, Urinda Sharma, testified that on 2nd February 2021, she and her husband left their residence at about 2.30 p.m. to go shopping, leaving the Respondents, who were their employees, at home with her elderly mother-in-law. When they returned at about 4.30 p.m., no one responded after the driver hooted at the gate. The driver eventually opened the gate and they found PW1's mother-in-law alone in the house. Their attempts to contact the Respondents were unsuccessful. 5. At about 7.30 p.m., PW1 discovered that cash in Kenya shillings and foreign currency, jewellery and other valuables valued at over Kshs 1,000,000 had been stolen. She reported the matter to the police. She testified that the 2nd Respondent was arrested the following day, while the 1st Respondent was arrested later. A sack containing Kshs 150,000 in new currency notes was recovered from the 1st Respondent's residence. 6. PW1 further stated that the 2nd Respondent was found in possession of some of the stolen jewellery and disclosed that the 3rd Respondent had participated in the theft. She also testified that duplicate keys used to access the house had been made. 7. PW2, Varun Sharma, testified that the 1st Respondent worked as a cook, the 2nd Respondent as a housemaid and the 3rd Respondent as a gardener. Before leaving the house on the material day, the 1st Respondent informed him that he wished to visit his sick wife and was granted permission. Upon returning home, none of the Respondents was present, despite being responsible for opening the gate whenever the family returned. 8. PW2 testified that cash, jewellery, foreign currency and money reserved for staff salaries and medical expenses had been stolen. He estimated the value of the stolen property at over Kshs 1,000,000 and confirmed that the matter was reported to the police. He further testified that the 1st Respondent later returned to the residence, where he was arrested. 9. PW3, Rodgers Mabonya, the family driver, testified that he drove PW1 and PW2 on the material day. On returning home, no one responded at the gate and he opened it himself. He searched the compound and staff quarters but could not find the Respondents. He found PW2's elderly mother alone in the house. He later learnt that cash and valuables had been stolen. He testified that the 1st Respondent had earlier informed him that he had obtained permission to visit his sick wife. PW3 further stated that duplicate keys were later recovered after the 2nd Respondent directed the police to where they had been concealed. He acknowledged that there had been employment grievances among the staff but stated that he could not say who had committed the theft. 10. PW4, Corporal Dennis Were, the investigating officer, testified that investigations commenced following the report made by PW1. He stated that the 2nd Respondent was arrested and that several items identified by the complainants as stolen property were recovered from her residence and from her boyfriend's house. 11. According to PW4, the 2nd Respondent implicated the 1st and 3rd Respondents in the theft. The 1st Respondent was subsequently arrested and led police to the recovery of Kshs 150,000 and other suspected stolen items from his residence. PW4 further testified that the 2nd Respondent pointed out where duplicate master keys had been concealed. The 3rd Respondent was arrested later after evading arrest, although no stolen property was recovered from him. PW4 produced the recovered exhibits, inventories and employment records. 12. At the close of the prosecution case, the trial court found that the Respondents had a case to answer and placed each of them on their defence. 13. DW1, Josephine Ndeti, denied the charges. She testified that she was arrested after leaving her employment and maintained that no property was recovered from her. She further contended that the complainants had failed to prove her employment or ownership of the alleged stolen property. 14. DW2, Charles Michieka, gave unsworn evidence. He denied the offence and testified that he had worked for the complainants for seven years but had become dissatisfied with delayed salaries, increased workload and poor remuneration. He stated that he left his employment in search of alternative work and was later arrested and charged. 15. DW3, Erastus Mitau Musyoka, also gave unsworn evidence. He testified that on the material day he had obtained permission to visit his sick wife and returned the following day. He denied participating in the theft and maintained that no stolen property was recovered from him or linked him to the offence. He urged the trial court to acquit him. 16. After a full trial, the respondents were acquitted accordingly. 17. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 18. Section 281 of the Penal Code Cap 63 (Laws of Kenya) provides that: **"If the Offender is a clerk or servant, and the thing stolen is the property of his employer or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years."** 1. The burden of proving every ingredient of the offence rested upon the prosecution. Sections 107(1), 108 and 109 of the Evidence Act provide: **Section 107(1): "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."** **Section 108: "The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."** **Section 109: "The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."** 1. PW1, PW2 and PW3 consistently testified that the 1st Respondent was employed as a cook, the 2nd Respondent as a housemaid and the 3rd Respondent as a gardener. Their evidence was corroborated by PW4, the investigating officer, who produced employment records and salary documents. The employer-employee relationship was therefore proved beyond reasonable doubt. 2. On whether the stolen items belonged to the complainant, PW1 and PW2 testified that after leaving the Respondents in charge of the residence, they returned to discover that cash in Kenya shillings and foreign currency, jewellery and other valuables worth over Kshs 1,000,000 had been stolen. Their evidence remained consistent and was supported by the inventory of stolen property and the recovered exhibits produced by PW4. 3. The evidence further established that the theft was committed by persons with unrestricted access to the residence. There was no evidence of forced entry into either the house or the master bedroom. PW1, PW2 and PW3 testified that the Respondents disappeared shortly after the complainants left the residence. PW4 further testified that duplicate master keys were recovered after the 2nd Respondent led police to where they had been concealed, demonstrating that access to the premises had been deliberately facilitated. 4. The evidence against the 1st and 2nd Respondents was overwhelming. PW4 testified that several stolen items were recovered from the 2nd Respondent's residence and from her boyfriend's house. In addition, Kshs 150,000 and other items identified by the complainants were recovered following information supplied by the 1st Respondent. The doctrine of recent possession was therefore applicable. Neither Respondent gave any reasonable explanation for possession of the complainants' property. Their respective defences were mere denials and did not rebut the prosecution case. 5. The position of the 3rd Respondent is different. Although he left the complainants' residence on the material day and was arrested later, PW4 confirmed that no stolen property was recovered from him. No witness directly linked him to the theft or to the recovered property. Suspicion, however strong, cannot found a conviction. The prosecution therefore failed to prove the charge against the 3rd Respondent beyond reasonable doubt. 6. The direct evidence of their employment, their disappearance immediately after the theft, the recovery of stolen property, the recovery of duplicate master keys, and the application of the doctrine of recent possession irresistibly pointed to their guilt. In the circumstances, I find that the learned trial magistrate misdirected herself by failing to properly evaluate the evidence against the 1st and 2nd Respondents. 7. The acquittal of the 1st and 2nd Respondents was therefore against the weight of the evidence and cannot stand. 8. I accordingly set aside the acquittals of the 1st and 2nd Respondents and substitute them with convictions for the offence of stealing by servant contrary to section 281 of the Penal Code. Their acquittal on Count I are hereby reversed. 9. On the other hand, the acquittal of the 3rd Respondent is upheld, the prosecution having failed to establish his guilt beyond reasonable doubt. 10. As regards Count II, the 2nd Respondent was charged with handling suspected stolen property contrary to section 323 of the Penal Code. 11. Having found the 2nd Respondent guilty of the principal offence of stealing by servant contrary to section 281 of the Penal Code in respect of the same property, it would be legally untenable to enter a further conviction on Count II. The offence charged in Count II is neither a cognate offence under section 179 of the Criminal Procedure Code nor can a person who is proved to have committed the theft by servant be convicted of handling or possessing the same stolen property. Count II therefore falls away, and no finding is entered thereon. 12. In the premises, the appeal is partially allowed. Summons shall issue to the 1st and 2nd Respondent for purposes of mitigation and sentencing for the offence they have been convicted of. Orders accordingly **Judgement dated and delivered virtually this 30th day of June 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE** **In the presence of:** Ms. Otiya for the Appellant Mr. Musamali for the 1st Respondent 2nd and 3rd Respondents Absent Karimi Court Assistant.