https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/392

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E298 OF 202 5** **REPUBLIC VERSUS BENARD OTIENDE NAMUKUSU** **JUDGMENT** 1. The accused has been charged with the offence of entering a dwelling house with intent to commit a felony, contrary to section 305[2] of the Penal Code. Particulars are that on the 20th day of September 2025 at 0100hrs and 0200hrs at Bumina area in Bunyala Sub-County within Busia County, the accused entered into the dwelling house of Kakayi Juliet with intent to commit a felony, namely assault. 2. Accused denied the charge and the prosecution presented its evidence as follows: 3. PW1 Kakayi Juliet stated that on the material day she was asleep alone in her house when she heard sudden movement inside the house. She woke up and asked who it was. She then grabbed her torch and as she rushed to light it up, the intruder told her he would hurt her with a knife. She lit the torch and shone the bright light on the intruder’s face to see him and the knife the intruder held. She recognised him as someone she knew prior to the incident physically but not by name. The intruder then fled as she let out a scream for help. She recognised the accused from the eatery she worked at. The accused used to come to eat there daily after his fishing activities in the company of 3 men. She also knew him physically from his toothless gap in his upper jaw which she knew too well. When the accused fled, her neighbour, Alex, heard her screams and came out and chased after the accused. Alex later returned and informed her that the accused had managed to escape after almost stabbing him with the knife he had. In the morning, she informed her husband of the matter. The matter was reported to the police. The accused was later arrested the same day after she pointed him out in the company of her husband. She had locked her house that night with a chain on her wooden door, which the accused had opened and gained illegal access to. 4. PW2 Alex Odipo Barasa testified being the complainant’s neighbour. That on the material night he was asleep when at around 2.00am, she heard screams from his neighbor. He woke up to check on the matter and stepped outside. That is when he saw a male figure exiting one of the neighbour’s houses and fleeing. He decided to chase after the intruder, and when they got to where there were bright security lights, he recognized the man as the accused. The lights were bright enough for him to recognize him. accused had a knife. He caught up with him and tried to capture him, but the accused tried to stab him with the knife he had in his hand. He let him go, fearing for his safety, and returned to check on the complainant. The accused was well known to him prior to the incident as a local fisherman around the Sinyenye area. In the morning, in the company of the complainant’s husband, they managed to arrest the accused, who had a habit of playing cards in a joint nearby. In the company of 2 police officers, the accused was arrested. The plot they live in is mostly rented by fishermen, all of whom were out fishing that night save for him. There had been a series of break-outs in the area; hence, the accused was clearly part of a criminal gang in the area. 5. PW3 237029 PC David Bett the investigating officer testified to have on 20/9/2025 around 11.55 am in the company of PC Ronaldo Otieno and in the company of the complainant went to Sinyenye market where they effected arrest of accused after a report had been made at the station against him. they found accused seated in a stall. They tried to place handcuffs on him but accused became violent, necessitating the help of members of the public. Eventually, they took him into custody and recorded the statements of all the witnesses. Complainant had reported accused breaking into her house that morning around 2.00am armed with a knife and threatening her with it. When she screamed for help after recognizing him with a torch, which she lit, the accused fled, and a neighbor chased after him after responding to the distress call. The accused had crept into her bedroom and onto her bed, demanding to have sex with her and warning her against screaming. The neighbor, Alex, had chased after the accused, tried to catch up with him, but the accused threatened him with a knife, forcing Alex to retreat. It was Alex who led the police to the arrest of the accused. The knife used to threaten the complainant was the same as Pex no. 1. The same was recovered from under his bed when they searched the house in the company of the accused’s sister and the village elder. 6. Accused having been found with a case to answer offered his defence as follows: 7. DW1 Benard Otiende Namukusu testified to understanding the charge he faced well. That he knew complainant well prior to this case as a business lady who buys fish from him. he does not know what transpired at the material time and date but recalls being arrested from a bhang smoking den by police officers who assaulted him during the arrest. complainant had given him Kshs 1500 to source fish for her, but he had only managed to give her fish worth Kshs 500. The complainant framed her because he failed to deliver the remaining fish worth Kshs 1,000 and failed to refund the same. ***Analysis and determination*** 1. Based on the evidence, the principal issue for determination is whether the prosecution proved beyond reasonable doubt the offence of entering a dwelling house with intent to commit a felony contrary to section 305(2) of the Penal Code. 2. To secure a conviction, the prosecution was required to prove: 3. That the accused entered the complainant's dwelling house; 4. That the entry was unlawful; 5. That at the time of entry, the accused intended to commit a felony, in this case assault; and 6. That it was the accused who committed the offence. 7. The accused, in his evidence, denied commission of the offence. The incident occurred at around 2.00am. The court must now examine whether or not the conditions at the time favored a positive identification or recognition of the accused as the perpetrator. 8. The prosecution's case rests substantially on the evidence of recognition. by PW1 and PW2. PW1 testified that she was awakened by movement inside her house. Before the intruder fled, she illuminated him with her torch and recognized him as the accused, a person she had known for some time as a regular customer at the eatery where she worked. She further testified that she recognized him by his distinctive toothless upper jaw. Recognition is generally more reliable than identification of a stranger because it is based on prior acquaintance. 9. The incident occurred inside PW1's house. Although it was at night, PW1 explained that she used a torch to illuminate the intruder's face at close range. She was therefore able to observe both his face and the knife he carried. Nothing emerged in cross-examination to suggest that she was mistaken or had insufficient opportunity to observe the intruder. 10. Her evidence was materially corroborated by PW2. Upon hearing PW1 scream, PW2 immediately came out and saw a man fleeing from PW1's house. He chased the man until they reached an area illuminated by bright security lights where he recognized him as the accused, whom he already knew as a fisherman in the locality. PW2's pursuit was uninterrupted until the accused threatened him with a knife, forcing him to abandon the chase. 11. The evidence of PW1 and PW2 therefore places the accused both inside the complainant's house and immediately thereafter fleeing from it. I find the evidence of PW1 and PW2 satisfactory as proof of accused as the perpetrator. I am well guided by the Court of Appeal case of ***Anjononi & 2 others v Republic [1980] KECA 23 (KLR),*** where the principle of recognition and that of identification was well espoused thus “*This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. “* 1. PW3, the investigating officer, testified regarding the subsequent arrest of the accused. His evidence further established that a knife was recovered from beneath the accused's bed during a search conducted in the presence of his sister and the village elder. Although no independent witness to the recovery was called, it was not seriously challenged in cross-examination. 2. PW1 testified that the intruder threatened to hurt her with a knife, whereas PW3 stated that the complainant had reported that the accused demanded to have sex with her before threatening her. This aspect does not appear in PW1's testimony. Since PW3 was merely recounting what he had been told, that portion constitutes hearsay and cannot override the direct evidence of PW1. In any event, even if the issue was relayed to him that the accused demanded sex, the same was immaterial, as the same would still have culminated in sexual assault, which is still a form of assault. 3. Nevertheless, this small inconsistency does not affect the core prosecution case, namely that the accused unlawfully entered the complainant's house while armed with a knife and threatened her before fleeing. 4. The defence advanced by the accused is that he was falsely implicated because he owed the complainant Kshs.1,000 after failing to supply fish. This allegation was unsupported by any independent evidence. Further, the same was never raised by the accused during the complainant’s cross-examination. I find the evidence an afterthought. 5. On whether Intent to Commit a Felony Was Proved, Section 305(2) criminalizes entry into a dwelling house with intent to commit a felony. Intent is ordinarily inferred from surrounding circumstances because it is rarely proved by direct evidence. 6. The accused unlawfully entered the complainant's bedroom at about 2.00 a.m., while armed with a knife. Upon being discovered, he threatened violence before fleeing. There is no evidence suggesting he innocently wandered into the complainant's house. His conduct demonstrates preparation to use violence if confronted. The court is satisfied that the unlawful nocturnal entry while armed with a knife, coupled with the threat issued to the complainant, establishes beyond reasonable doubt that he entered the dwelling with the intention of committing a felony, namely assault. 7. I find therefore that from the evidence presented, the prosecution has effectively discharged their burden of proof against the accused beyond reasonable doubt. 8. The accused, Benard Otiende Namukusu, is hereby found guilty of the offence of entering a dwelling house with intent to commit a felony contrary to section 305(2) of the Penal Code and is convicted accordingly under section 215 of the Criminal Procedure Code. Dated, signed and delivered at Port Victoria this 29th July 2026 **Hon. Anne K. Njeru** **SRM**