https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/381

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **CRIMINAL CASE NO. E164 OF 2026** **REPUBLIC** **VERSUS** **EVANS MOGONDO NYAIRO………………………………………ACCUSED** **JUDGMENT** 1. The accused has been charged with the offence of stealing by servant contrary to section 281 of the Penal Code. The particulars are that the accused on the 30th day of March, 2026 at Isebania Township in Kuria West Sub County within Migori County, being an employee as a driver of motor vehicle make Isuzu registration number KBZ 012H canter lorry stole therein two tires, two car batteries, a diff, drum and hub with two back plates all valued at Kshs. 208,000/= the property of RIOBA ALFRED BURUNA. **The Prosecution Case** 1. The prosecution called three witnesses namely; 2. **RIOBA ALFRED BURUNA (complainant) (PW1)** 3. **NO. 97160 CPL SAMUEL MASAI (PW2)** 4. **STEPHEN NYANG’AU ONSONGO (PW3)** 5. The prosecution case was that PW1 on 30/3/2026 he was at work when his driver called him on phone and told him that diff, 2 batteries, 2 tires, 2rims had been stolen. He told the driver to report the matter at Isebania Police Station where he was parking the lorry. 6. PW1 later travelled to Isebania and the driver told him that he had placed the parts behind the vehicle. He checked the vehicle and noticed the batteries were missing. He opened the boot which had not been locked and did not find the spares the driver said were at the back of the lorry. He then reported the matter to police. 7. PW1 then went to where the driver stays but he was not there. He tried calling him but he did not pick his calls. The police called him and he came at the police station. The accused said he placed the parts in the front cabin of the lorry but he did not have the key. PW1 went home and picked the spare key and opened the front cabin where they only found a tube and some nuts. The accused told them that the axel was at his friend’s place where they went and picked the same. 8. They went to the mechanic one STEPHEN who had worked on the vehicle, they did a search but nothing was recovered. He identified the logbook as PMFI-1. He marked the agreement between him and accused as PMFI-2. Receipt for the stolen parts as PMFI-3. 9. PW3 evidence was that on 25/1/2026 at 8:00am the accused called him to go to Isebania police station for work as the lorry had a mechanical problem. It is registration number KBZ 012H with it’s had being white and the body blue in colour. He checked the vehicle and found the rear bearing and tube had a problem. He opened the diff and told the accused to call the owner so as to inform him what was wrong. The accused promised to call the owner and paid him Kshs. 800/= and he went home. 10. On Monday accused called him saying he had taken the tube to the engineering. On 26/1/2026 PW3 called Evans who told him that the owner wanted it to be taken to Nairobi and to pick his spanners at his hotel. PW3 picked the same. Later accused told him that the items were stolen. This was in March 2026. The accused told him that the diff, back break, batteries and left rear tires got lost. He met the accused and they talked to the owner of the vehicle who told him to confirm what had been stolen, which he did and found that the diff, rear tire, back break were missing. The complainant told him to go back the following day and confirm again. PW3 went to the accused house but found he had relocated to Kisii. Later the owner of the vehicle came with the police who searched his place but nothing was recovered. He identified the photographs of the said motor vehicle and where the parts were removed as exhibits 4(a-f). 11. PW2 investigated the case and charged the accused person. He produced the logbook as exhibit-1, handing over agreement as exhibit-2, receipt as exhibit-3, photographs as exhibit 4(a-g) and certificate as exhibit-5.The prosecution then closed its case. **The Accused Defence Case** 1. The accused DW1 EVANS MOGONDO NYAIRO gave unsworn defence and denied the charges. His defence was that on 24/1/2026 he called the complainant and told him that he had work to ferry people to the land. He took the said people but on reaching Ikerege the vehicle had a mechanical problem. The owner send a mechanic who examined the vehicle and the owner instructed the mechanic to take the vehicle to Isebania Police Station. They took the vehicle there and went away. 2. PW1 then called him and instructed him to look for another mechanic and he called PW3 who came and worked on the vehicle by removing the pats which were faulty. The complainant told him to take the same to the engineering which he did. He kept the other parts in the vehicle and locked the doors. The part which he took was to Nairobi and PW1 told him to wait as he looks for the original. The accused said he kept on waiting and after sometime he was unable to pay rent and his house was locked. 3. The complainant sent him an axel which he kept in a certain workshop and he went to Kisii and told the complainant about the same. The complainant told him that he will send him the parts. Accused said he was in Nyamira and complainant send him Kshs. 200/= which he used to Kisii to pick the axel. He picked the same and went to Isebania where they offloaded the tube. 4. They went to the lorry and found two tyres, diff, back plates, hub and drum missing from the vehicle. He called PW1 and informed him of the same. PW3 came and confirmed the missing parts. The accused reported the same to police vide OB NO. 26/30/3/2026 which he produced as exhibit-1. The complainant told him that he will come after three days. The accused went back to Kisii where he had another work. Later accused came at Isebania police station with the mechanic and they were both placed in the cells and later he was charged. The accused then closed his defence case. **The Law** 1. The Charge Sheet shows that the accused herein is charged with the offence of stealing by servant contrary to Section 281 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1930/10). This Section 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 imprisonment of seven years.”** **Determination** 1. It must be appreciated that under Section 107(1) of the [Evidence Act](https://kenyalaw.org/akn/ke/act/1963/46), the burden of proof is on the prosecution to establish every element in a criminal charge beyond reasonable doubt. 2. This being a criminal case, the prosecution bore the burden of proving the case beyond any reasonable doubt. In **Bakare v State (1987) 1 NWLR (PT 52) 579**, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:- ***“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”*** 1. The standard of proof was also discussed in the case **Gordon Omondi Ochieng v Republic [2021eKLR** which referred to the famous case of **Miller v Ministry of Pensions, [1947] 2 All E R 372,** Lord Denning stated with regard to the degree of proof beyond reasonable doubt: **“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail 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 in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”** 1. To establish a charge of stealing by a servant and to secure a conviction under the above section, the prosecution must prove the following: 2. The accused was an employee of the complainant; 3. The property came into the accused's possession while they were employed; 4. The accused dishonestly took the property, defrauding the employer; 5. Stealing is defined in Section 268 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1930/10) as taking something capable of being stolen without claim of right, or fraudulently converting property to the use of someone other than the owner. 6. I have carefully considered the prosecution evidence and the accused defence on record and find that the element of the accused’s employment by the complainant, as driver is undisputed. It is also undisputed that the two tyres, two rims, two car batteries, a diff, drum and hub with two back plates were stolen from motor vehicle KBZ 012H Canter Lorry belonging to the accused person. The only issue for determination is whether the accused stole the same. 7. A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the owner of it. This constitutes the actus reus of the theft, mensrea is then deduced from acts of dishonestly which manifests criminality. In our instant case there is no direct evidence showing that the accused stole the said parts. It suffices to note that no one saw the accused steal the motor vehicle parts. Thus there is no direct evidence. The case is thus based purely on circumstantial evidence. 8. The law on circumstantial evidence is settled. In the case of **Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR**, the Court of Appeal stated as follows: - ***“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -“It has been said that the evidence against the Applicant is circumstantial. So, it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.”*** 1. In summation, the afore case law thus requires that, before any conviction is based on circumstantial evidence, that evidence must be adequate to prove the case on the required standard of beyond reasonable doubt. 2. Further circumstantial evidence requires interpretation or inference to reach reasonable conclusion. In that regard, the court will admit circumstantial evidence if it meets the following criteria; 3. The evidence is logically connected to the case. 4. The evidence must prove or disapprove a fact relevant to the case. 5. The evidence should be reliable, trustworthy with minimal chance of falsehood. 6. Its potential to influence a decision should not outweigh the probative value. 7. The evidence should not be hearsay 8. Circumstantial evidence has been said to be the best evidence. In **Republic v Taylor Weaver and Donovan (1928) 21 CR.C 20**, the court said; ***“Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances when by intensified examination, is capable of proving a proposition with accuracy of mathematics”*** 1. Though circumstantial evidence is the best evidence, it must be taken with outmost caution. In [**Teper v Republic**](https://vlex.co.uk/vid/teper-v-the-queen-805720081)**AC (1952) Pg. 489**, the court said; ***“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence, to be sure that there are no co-existing circumstances which could weaken or destroy the evidence”.*** 1. What is the circumstantial in our instant case? The prosecution evidence reveals that the accused was the driver of the lorry. The parts were removed by PW3 and they kept in the ready body of the lorry and they locked the same. The accused took the tube/hub to Kisii for grinding without informing PW3 the mechanic who had removed the same. There is no evidence on record showing that the vehicle was broken into. The complainant tried calling the accused but he did not receive the calls. The complainant then used the police who called the accused who came at the police station. When the complainant talked to the accused he said he had kept the parts in the front cabin but that he did not have the key. The complainant went home and brought another key and on opening the same there was nothing found in the front cabin. 2. The fact that the accused refused to pick the complainant’s phone, he lied as to where the parts were kept leads to the conclusion that he knew what had happened to the said parts. The circumstantial evidence in this case logically connects the accused to the missing part as he removed part of the parts alone and took the same to Kisii. There is no evidence of breakage into the vehicle. The said evidence is not hearsay evidence and the same proves that the accused had access to the vehicle which fact is not denied. The same evidence is not fabricated to frame the accused. The accused in his defence did not blame anyone for the theft and his defence was a Shum and I hereby reject the same. 3. I find that the circumstantial evidence is too strong and points at the accused as the culprit. The circumstantial evidence does unerringly point to the accused as the culprit. In that regard, there is no doubt as to who the thief is. This means that the prosecution has been able to prove its case beyond any reasonable doubt and find the accused guilty as charged with the offence of stealing by servant contrary to section 281 of the Penal Code and convict him under section 215 of the Criminal Procedure Code. **Dated, Signed and Delivered in open Court at Kehancha on this 28th day of July, 2026.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Kuntai………… Prosecution Counsel** **Mr. Jasper/Enock………… Court Assistant** **Accused …………….. Present** **Interpretation ……… English/Kiswahili** **Accused Language … Kiswahili** **Accused Advocate…….Ms. Ndegwa present**