https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/258

Republic v Ochimbo (Criminal Case E315 of 2025) [2026] KEMC 258 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEMC 258 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E315 of 2025 AK Njeru, SRM June 10, 2026 Between Republic Prosecution and William Ochimbo Accused Judgment 1.Accused has been charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code. Particulars are that on diverse months of December 2024 and October 2025 at Mulwano village, Bunyala Sub-County within Busia County, the accused stole a metallic bed(3x3), mattress (6inches), two blankets, two bedsheets, three metallic chairs, jiko, clothing, and utensils all valued at Kshs 50,000, the property of Peter Odhiambo Ochimbo. 2.Accused denied the charge setting the trial court in motion. 3.PW1 Peter Odhiambo stated that he was the accused’s uncle and that between December 2024 and October 2025, he was away from his village house, residing in Nairobi. He states to have returned on 7/10/2025 to find his two houses in the village broken into, door damages with inside, a metallic table, two chairs, mattresses, cooking jiko, light bulbs all from one house missing while in the other house, part of the roof damaged to access entry with assorted utencils, assorted clothes and two sacks of rice missing as well. he reported the matter to the police. That no one lived in both houses but within the compound, his in-law Irene Akumu, her children and their farmhand by the name Obara lived there. During investigations, he found two sets of shoes, one red in colour, the other black in colour, inside his house, which he did not recognise as his. He asked around who those shoes belonged to, and Irene and his brother Mudonyi informed him that the shoes belonged to the accused, his stepbrother. Police later arrested accused. Accused had in the year 2020 stolen his property and sold them to unknown people. No one saw him commit the offence. The red shoes found inside his house were the only evidence linking the accused to the commission of the offence, as none of the stolen items was recovered. 4.PW2 Irene Aumu stated that the accused was his step-son. That complainant, who is her brother-in-law, travelled to Nairobi from the village, leaving his house locked. That accused went ahead to cut down trees at the complainant’s side of the land and even at one time saw him entering the complainant’s house in the absence of the complainant. In 2025, the complainant informed her that several items had gone missing from his house. She accompanied him into his house, where she found the padlock broken and some red Reebok labelled shoes at the entrance of the house. She recognized the shoes as those belonging to the accused and informed the complainant as much. The black shoes, however, were strange to her as well. complainant stated to have lost assorted clothes and bedsheets, utensils. Accused was later arrested. she had often seen accused wearing the red shoes in court. The accused was hostile towards her; she could not recall the exact time the accused broke into the complainant’s house. 5.PW3 241595 IP William Mahongo a police officer stationed at Rwambua Police post stated to have found the report made by the complainant. He and his colleague by the name Munayo visited the scene and found damaged roof which was the point of entry of the intruder into complainant’s house. complainant showed them shoes he had found inside his house that did not belong to him and stated the same to have been confirmed by his relatives as those belonging to accused. He produced the red shoes as Pex no. 1. None of the stolen items were recovered from accused. 6.PW4 124816 PC Bonface Munyao testified to have been present when complainant reported the matter at Ruambwa police post. he reported losing items through theft while he was away. they visited his house and found 2 pairs of shoes at the entrance. one was red in colour while the other black which complainant stated to be strange. On enquiry, he was informed the same belonged to accused. They arrested the accused and re-recorded the witness statements. None of the stolen items were recovered from accused. He was not informed of any existing land dispute between accused and complainant. 7.PW5 Patrick Ouma stated to have received a call from a complainant, who is his brother, on 8/10/25 that he was needed at home. On arrival, complainant reported to him that he had found his house vandalized with several missing items. Complainant went ahead to show him 2 pairs of shoes which he stated to have found inside his house evidently left by the intruder since they were not his. One was black in colour the other pair red in colour. He positively recognized the red pair as those belonging to accused who had received the shoes from a villager called Kevin. That he had spent considerable amount of time with accused and was able to identify the said shoes as belonging to accused who is his relative. Accused lives in the same compound as complainant. Complainant kept his houses locked all the time. He saw an opening on the roof of the house, clear evidence of a break in. the hoes were accused’s and fit him well upon his wearing them. 8.Accused was found with a case to answer and in his defence, identified himself as William Ochimbo. He stated that complainant was his relative with whom they lived on the same family parcel of land. that complainant arrived at his house at around 6.00am from Nairobi and he asked him to allocate him casual labour. Later, complainant summoned accused to his house where he was placed under arrest by police officer on these allegations. Complainant has before this incident reported him to the police. His parents died and left him the property as inheritance but whenever he demands his share, complainant always resorts to allegations to get him out of the way. 9.Having reviewed the evidence, it is clear that the prosecution’s case rests primarily on the circumstantial evidence of the red shoes found at the scene and the identification of the shoes as belonging to the accused. 10.There was no direct evidence placing the accused at the scene at the material time, nor were any stolen items recovered in his possession. 11.In the case of Abanga Alias Onyango vs.v Rep CR A No.32 of 1990(UR), the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. The Court of Appeal stated as follows;“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 12.The Court of Appeal in the case of GMI -vs- Republic (2013) eKLR, Musii Tulo vs. Republic (2014) eKLR in expounding the above principles expressed itself as follows:-“ 4.In order to ascertain whether or not the inculpatory facts put forward by the prosecution are incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilty, we must also consider a further principle set out in the case of Musoke v. R (1958) EA 715 citing with approval Teper v. R (1952) AL 480 thus: -It is also necessary before drawing he inference of accused's guilty from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.' 13.While none of the stolen items were recovered, accused could not shake the prosecution evidence more so that of PW2 and PW5 that the red shoes produced as Pex no. 1 were his. Both witnesses are his close relatives and testified on oath seeing the accused wearing the shoes several times. Their evidence remained unshaken through cross examination. 14.While the accused alleged a frame-up intended to dispossess him of his inheritance of the family land, the same was not raised during the cross-examination of the complainant to raise an inference of doubt as to the complainant’s testimony as a catalyst for the frame-up. 15.From the evidence of PW2, accused had the access to complainant’s part of the compound severally and is even seen cutting down complainant’s trees, which testimony also remained unshaken in cross examination by accused. PW5 corroborated the evidence of the accused’s access to the complainant’s house by confirming that the accused resided on the same parcel of land as the complainant, hence had the means to commit the offence. 16.I find that the prosecution has proved beyond a reasonable doubt that the accused committed the offence charged. I pronounce him guilty forthwith and proceed to convict him of the offence charged pursuant to section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 10TH JUNE 2026,in Kiswahili, the language the accused states to understand, in the presence of the Accused, Mr Githinjji, the prosecutor, and Mr Victor, the Court Assistant.HON. ANNE NJERUSENIOR RESIDENT MAGISTRATE