https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/353

Republic v Oketch & another (Criminal Case E557 of 2026) [2026] KEMC 353 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEMC 353 (KLR) Republic of Kenya In the Mombasa Law Courts Criminal Case E557 of 2026 JM Mwenda, RM July 24, 2026 Between Republic Prosecutor and Pius Oketch 1st Accused Kellas Wanyonyi 2nd Accused Judgment A. Introduction. 1.There is no perfect crime. A criminal enterprise may be meticulously planned and carefully executed, but human conduct is rarely without error. It is often through those very errors, however small, that the truth begins to emerge. It may take days, months, or even years, but truth has a remarkable way of revealing itself. It ultimately finds its way into the light. 2.The solemn duty of a court is to patiently pursue that truth, particularly in criminal cases where the liberty of an individual is at stake. The court must navigate through competing narratives, examine every piece of evidence with care, and arrive at a conclusion founded not on suspicion or speculation, but on proof beyond reasonable doubt. 3.The preparation of this judgment has been a painstaking exercise, not because the facts were incapable of being unraveled or because the applicable law was uncertain, but because of the extensive evidence placed before the court. The prosecution called seventeen witnesses, each presenting a different piece of the evidentiary puzzle. The court was therefore required to exercise patience, restraint and anxious scrutiny in evaluating the testimony of each witness, while remaining firmly guided by the legal threshold applicable in criminal cases. 4.The 1st accused person is charged with four counts while the 2nd accused person is charged with one count. In Count I, both accused persons are charged with the offence of Conspiracy to Commit a Felony contrary to Section 393 of the Penal Code. The particulars are that on the night of 13th and 14th March, 2026 at Bonje Industrial Park in Jomvu Sub-County within Mombasa County, jointly with others not before the court, conspired to commit a felony namely to rob No. 89608 Police Constable James Kobia of his AK47 rifle Serial Number 5426917. 5.Counts II, III and IV relate only to the 1st accused person. 6.In Count II, the 1st accused is charged with Being in Possession of a Firearm Without a Firearms Certificate contrary to Section 4(1) as read with Section 4(3) of the Firearms Act Cap 114 Laws of Kenya. The particulars are that on 17th March, 2026 at Narcol Estate in Jomvu Sub-County within Mombasa County, he was found in possession of a firearm AK47 Serial Number 5426917 without a firearm certificate. 7.In Count III, the 1st accused is charged with Being in Possession of Ammunition Without a Firearm Certificate contrary to Section 4(1) as read with Section 4(3) of the Firearms Act Cap 114 Laws of Kenya. The particulars are that on the same date and at the same place, he was found in possession of thirty (30) rounds of 7.62mm calibre ammunition without a firearm certificate. 8.In Count IV, the 1st accused is charged with Being in Possession of Government Stores contrary to Section 324 as read with Section 36 of the Penal Code. The particulars are that on 17th March, 2026 at Narcol Estate in Jomvu Sub-County within Mombasa County, he had in possession of Government stores, namely an AK47 rifle Serial Number 5426917 of National Police Service, such property being reasonably suspected of having been stolen or otherwise unlawfully obtained. 9.The accused persons pleaded not guilty to all the charges and the matter proceeded to full hearing. The prosecution called a total of seventeen (17) witnesses while both accused persons elected to give sworn testimony in their defense without calling any witness. B. Prosecutions Case. 10.PW1, Athman Abae, testified that he was a security guard employed by Fahim Security Company. On the night of 13th and 14th March, 2026, he reported for duty at Bonje Industrial Park at about 7.00 p.m. where he found another security guard who informed him that Police Constable James Kobia had already arrived. He found PC Kobia seated at the security point where they usually stayed. They had dinner together while another security guard. Peter Libuku, proceeded to man the gate. PW1 remained with PC Kobia and the two sat approximately five meters apart. 11.He testified that they later conducted patrols within the premises and at around midnight they were suddenly attacked by a group of approximately seven people. He stated that the attack occurred abruptly and he did not have sufficient time to count the attackers. Out of fear for his life, he fled from the scene leaving PC Kobia behind and hid until the attackers had left. 12.Afterwards, he ran towards the weighbridge where he met two police officers and informed them that Bonje Industrial Park had been attacked and that he had left his colleague behind. The officers accompanied him back to the scene where they met PC James Kobia at the gate. PC Kobia informed them that the attackers had robbed him of his firearm. PW1 testified that before the attack PC Kobia had been armed with the said firearm, which he subsequently identified before the court. 13.PW1 further testified that police officers from Maganda Police Station later arrived as reinforcement. He checked for his Nokia C22 mobile phone which he had left behind during the attack but found that it had also been stolen. DCI officers later arrived and obtained their telephone numbers. When his stolen phone was called, someone answered the call and thereafter the police continued with investigations. He later recorded his statement at Maganda Police Station. 14.He testified that he never saw the faces of the attackers because he was fleeing for safety. Although an identification parade was later conducted, he was unable to identify any suspect. During cross-examination he maintained that he had not seen any of the attackers and therefore could not identify anyone either at the scene or during the identification parade. 15.PW2, Geoffrey Ogutu, testified that he was a member of the Community Policing. On the night of 13th and 14th March 2026, he was on patrol at vikobani area together with police officers Tanui and Omina when they received information of an incident at Bonje Industrial Park. They proceeded to the scene where they found PC James Kobia, who informed them that approximately fifteen people had robbed him of his firearm. 16.PW2 testified that together with the Deputy OCS of Maganda Police Station they searched for the firearm but were unable to recover it. One of the security guards also reported that his mobile phone had been stolen. PW2 called the stolen phone and it was answered. Pretending that he wished to send Kshs.2000/= through M-Pesa, the person answering requested that the money be sent to another telephone number, namely 0720822491. PW2 called that number and it was answered by a lady. Upon again calling the stolen phone and asking why the M-Pesa number that had been given belonged to a lady, he was informed that it belonged to his wife. PW2 thereafter forwarded both telephone numbers to the investigating officers before leaving the scene. 17.During cross-examination, PW2 testified that he did not know the person with whom he had spoken over the telephone. He further testified that he had never seen either of the accused persons before and that he did not see them at the scene of the incident. 18.PW3, Police Constable Kennedy Sifuna, testified that he was attached to Mikindani Police Station. He stated that on 14th March,2026 at about 7.00 p.m., Police Constable Kandie called him and requested that they meet at the DCI Jomvu offices. He proceeded there and met PC Kandie together with a suspect who had information regarding the stolen firearm. 19.He testified that the suspect informed them that he was a watchman guarding a hotel in Bangladesh area within Mikindani and that a friend of his known as Shadrack had borrowed his phone for purposes of communication. 20.PW3 stated that the said suspect led PC Kandie and CPL Kalango to Shadrack. At about 8.15 p.m., they brought Shadrack to Mikindani Police Station where he was handed over to DCI officers. 21.He further testified that after interrogating Shadrack, he received information from PC Kandie that there were key suspects who had been mentioned being the 1st and 2nd accused persons. He stated that there was also another suspect known as Nicholas. 22.PW3 testified that after receiving that information, he commenced efforts to trace the 2nd accused person. He managed to locate his house and informed PC Kandie to assist in tracing the location of the 2nd accused person's mobile phone. 23.He testified that on 17th March, 2026 at about midnight, PC Kandie called him and informed him of the location of the 2nd accused person in Bangladesh area. Together with PC Mulewa, they proceeded there and found the 2nd accused person inside his house. They arrested him and escorted him to Mikindani Police Station. The OCS Mikindani was informed and spoke to the 2nd accused person, who agreed to show the police where the firearm was. 24.PW3 testified that officers from Mikindani Police Station and DCI Jomvu proceeded to Narcol area together with the 2nd accused person. He led them to the house of the 1st accused person. 25.He stated that upon arrival, the 1st accused was inside the house but refused to open the door. The officers eventually gained entry into the house. Inside, they found a ladder which the 1st accused had used to climb into the ceiling. 26.PW3 testified that CPL Mburugu ordered the 1st accused person to come down from the ceiling and he complied. He stated that he admitted that he had the firearm and that it was hidden in the ceiling. 27.PW3 climbed the ladder and recovered the firearm which had been placed inside a sack carrier bag. He identified the sack carrier bag before the court. He also identified the AK47 rifle, the magazine and the thirty rounds of ammunition which were recovered. 28.He testified that the 1st accused was arrested and taken to Mikindani Police Station where an inventory was prepared and signed. He recorded his statement and identified both accused persons in court. 29.During cross-examination by the 1st accused, PW3 testified that he saw the 1st accused when they went to arrest him and that he had not threatened him. He stated that there was no other person inside his house at the time of arrest and that he was hiding in the ceiling. 30.He denied knowing anyone by the name Jacinta and denied that the 1st accused had been beaten in order to force him to sign the inventory 31.During cross-examination by the 2nd accused, PW3 stated that he arrested him from his house and that they did not assault him. He testified that during arrest, the 2nd accused attempted to escape. He stated that it was the him who led the police officers to the house of the 1st accused where the firearm was recovered. 32.During re-examination, PW3 clarified that when the 2nd accused attempted to escape during arrest, he was shot on the leg. 33.PW4, Police Constable Benedict Mulewa, testified that he was attached to DCI Jomvu. He testified that on the night of 13th March, 2026 there was an incident at Bonje Industrial Park, which was guarded by police officers from Maganda Police Station together with private security guards. 34.He stated that a gang of people attacked the security guard and the police officer who was guarding the premises. During the attack, an AK47 assault rifle Serial Number 542917 together with a magazine containing thirty rounds of 7.62mm ammunition was stolen. 35.PW4 testified that the firearm had been assigned to PC James Kobia of Maganda Police Station. 36.He stated that after the report was made, investigations commenced and after three days the 2nd accused person was mentioned by some witnesses who stated that he had informed them that he had a job for them. 37.PW4 testified that investigations were conducted and the 2nd accused person was arrested. During the arrest, he attempted to run away and PW4 shot him on the leg. He was thereafter taken to Mikindani Police Station. 38.PW4 stated that after interrogation, he admitted that he had been present when the firearm was stolen and that he knew where it had been hidden. 39.He testified that together with PC Sifuna, CPL Nyaga, CPL Mburugu and a village elder, they proceeded to Narcol area where the 2nd accused led them to the house of the 1st accused. 40.Upon arrival, they entered the house and found the 1st accused hiding in the ceiling. He came down and informed them where the firearm was hidden. 41.PW4 testified that PC Sifuna climbed into the ceiling and recovered the firearm which had been placed inside a sack carrier bag. He identified the sack carrier bag, the firearm, the magazine and the thirty rounds of ammunition before court. 42.He testified that both accused persons together with the recovered exhibits were escorted back to the police station where an inventory was prepared and signed. He stated that nobody forced either accused person to sign the inventory. 43.During cross-examination, PW4 stated that he did not know whether the 1st accused had any grudge with PC Sifuna but confirmed that they went to his house because they had been led there by the 2nd accused. 44.During cross-examination by the 2nd accused, PW4 stated that he had moved to a new house where he was arrested. 45.PW5, Police Constable Davis Omboto, testified that he was stationed at Dongo Kundu Weighbridge Police Station. He stated that on 14th March, 2026 at about 0010 hours, while on duty together with PC Sospeter Wanjiru, they saw a man running towards them. 46.The man introduced himself as a security guard from Bonje Industrial Park and informed them that they had been attacked by unknown people and that there was a police officer who had remained at the scene. 47.PW5 testified that they proceeded to Bonje Industrial Park where they met PC James Kobia coming out of the gate. PC Kobia informed them that his firearm had been stolen. 48.They called the OCS Dongo Kundu Weighbridge Police Station and later a police vehicle from Maganda Police Station arrived. PC Kobia was thereafter taken away by officers from Maganda Police Station. 49.During cross-examination, PW5 clarified that when he went to the scene, he found PC Kobia already there. 50.PW6, Police Constable Sospeter Wanjiru, testified that on 14th March, 2026 he was at Dongo Kundu Weighbridge Police Station with his colleague PC Davis Ombuto when the security guard arrived running and reported that there had been an attack at Bonje Industrial Park. 51.He corroborated the evidence of PW5 regarding proceeding to the scene, finding PC James Kobia and being informed that his firearm had been stolen. 52.He confirmed that PC Kobia was later taken over by officers from Maganda Police Station. 53.PW7 Nicholus Oluoch testified that on 13th March, 2026, the 2nd accused person approached him and informed him that there was a job available at Bonje Industrial Park involving loading goods. He stated that the work was to be done at night. 54.He testified that at about 7.30 p.m. he found the 2nd accused person together with six other people and they proceeded towards Bonje Industrial Park. They arrived at the area at about 11.00 p.m. and he showed them where they were supposed to go. 55.PW7 testified that when he asked him about the vehicle they were supposed to load, he informed him that his employer was bringing the vehicle. They waited until midnight when the he instructed them to enter Bonje Industrial Park. 56.He testified that after they entered the premises, he heard people shouting, "Mwizi! Mwizi!" At that time, the group had separated into two groups. PW7 stated that he became frightened, ran away, took his motorcycle and went home. 57.He further testified that the following morning at about 8.00 a.m., while on his way to work, he met the 2nd accused person and asked him what had happened. He informed him that his employer had failed to bring the lorry. PW7 stated that the 2nd accused further told him that he had heard police officers were on patrol looking for a firearm and illicit alcohol. 58.PW7 testified that he knew the 1st accused person and that he was among the persons who had gone with them to Bonje Industrial Park on the material night. 59.He stated that he was arrested on 17th March, 2026 and that it was the 2nd accused person who led police officers to his residence. He was later released and agreed to testify for the prosecution. 60.During cross-examination, PW7 stated that he did not know the 1st accused person before that day but confirmed that he saw him on the night in question. He maintained that it was the 2nd accused who had informed them that there was work available at Bonje Industrial Park. 61.He further clarified that after the group split into two, the accused persons were not with him. 62.He further testified that on 31st march, 2026 he was released and converted to a prosecution witness. He identified the accused persons as the persons he was with at the Bonje Industrial Park 63.PW8 was Erick Maina Okenjo. He testified that on 13th March, 2026, sometime after 4.00 p.m., he met the 2nd accused person who informed him that there was a job involving loading goods at Bonje Industrial Park. He was informed that the work would commence at about 6.00 p.m. 64.PW8 testified that at about 6.00 p.m. he proceeded to Bangladesh stage where he met the 2nd accused person together with approximately nine other people. He informed them that they would each be paid Kshs.2,000 for loading a lorry. 65.He stated that they walked from Mikindani towards Bonje Industrial Park but did not enter the premises. They remained outside waiting for the vehicle. 66.PW8 testified that they waited for a long time and he eventually became tired and left for home at about 10.00 p.m. 67.He further testified that on 16th March, 2026, while at work, he was arrested by DCI officers and taken to Changamwe Police Station but was later released. 68.He stated that he did not know anything concerning the stolen firearm. 69.During cross-examination, PW8 stated that he did not know the 1st accused person and that he did not see him among the people who went to Bonje Industrial Park. He further stated that he did not know the nature of work undertaken by the 2nd accused. 70.PW9 was Fredrick Otieno Odhiambo. He testified that he was a casual laborer during the day and a watchman at night. 71.He stated that on 14th March, 2026 at about 12.30 a.m., while at work, two men approached him. One of them was Shadrack, whom he knew. Shadrack informed him that they were coming from work at a go down but had not been paid and requested to borrow a phone so that he could call his employer and follow up on his payment. 72.PW9 gave him his phone. He testified that he heard Shadrack mention the name "Joyce" during the call, but there was no response. Shadrack returned the phone and left. 73.PW9 testified that the following evening when he reported to work, he was arrested by police officers. The officers requested for his phone, examined it and showed him a telephone number which had not been saved in his contacts. They asked him who owned the number. 74.He remembered that it was Shadrack who had called the number. The police officers later managed to trace and arrest Shadrack. 75.PW9 testified that Shadrack's real name was Raphael Ouma and that Shadrack was an alias. 76.He stated that he did not know either of the accused persons before court. 77.PW10 was Raphael Ouma alias Shadrack. He testified that his peers referred to him as Shadrack because that was the name given to him during baptism. He stated that he was a casual laborer engaged in loading and offloading goods. 78.He testified that on 13th March, 2026 at about 3.00 p.m., he met the 2nd accused person at Bangladesh stage. The 2nd accused informed him that there was a job involving loading two vehicles at Bonje Industrial Park in Miritini. 79.PW10 stated that they had agreed to meet again at Bangladesh stage at 6.00 p.m. When he arrived, he found the 2nd accused together with two other people. They proceeded on foot towards Bonje Industrial Park and other people joined them along the way. 80.By the time they reached Bonje Industrial Park, they were approximately eight people. PW10 testified that the 2nd accused instructed them to wait for the vehicle. 81.At about 10.00 p.m., they entered Bonje Industrial Park. Shortly thereafter, he heard people shouting, "Shika hao." He did not know what was happening and immediately ran away towards Miritini. 82.PW10 testified that after running away, he met a watchman known as Fred who guards a hotel in Bangladesh area. He stated that earlier he had met another person known as Silas who was among the group that had gone to Bonje. 83.He testified that Silas requested assistance to receive money through M-Pesa but PW10 could not assist because he did not have a Safaricom line. They therefore proceeded to Fred, who assisted them using his phone. 84.PW10 stated that Silas made a call using Fred's phone and thereafter they left. 85.He testified that on 14th March, 2026 he was arrested by DCI officers. He stated that it was the 2nd accused who had called him to join the group but he did not see the 1st accused person at Bonje Industrial Park. 86.PW11 was Police Constable James Kobia. He testified that he was attached to Maganda Police Station and was assigned duties at Bonje Industrial Park. 87.He stated that he was issued with an AK47 rifle Serial Number 5426917 to enable him perform his duties. 88.He testified that he had been deployed together with another officer, David Kanyi, and his shift was scheduled to end on 14th March, 2026 at 6.00 a.m. 89.He identified the duty roster showing that he had been assigned duties at Bonje Industrial Park and also identified the firearm movement register showing that he had been issued with the firearm on 13th March, 2026 at 7.00 p.m. 90.PW11 testified that the rifle had been loaded with thirty rounds of 7.62mm ammunition. 91.He stated that on 13th March, 2026 he arrived at Bonje Industrial Park at about 7.40 p.m. where he met a security guard known as Peter. He proceeded to his place of duty and at about 8.00 p.m. he was joined by another security guard, Athman Abae. 92.They conducted patrols within the premises at about 10.30 p.m. and later returned. 93.PW11 testified that at about midnight they were suddenly attacked by a group of men. He stated that one of the attackers was armed with a panga and threatened to cut his hand when he resisted surrendering the rifle. 94.He testified that eventually one of the attackers grabbed his firearm and stepped aside. He was held hostage and forced to lie on the ground for about twenty minutes by another attacker. 95.The attacker who was holding him later took his phone and the phone belonging to Athman Abae before leaving. 96.PW11 stated that he was unable to see the faces of the attackers because it was at night and visibility was poor. 97.PW11 further testified that after the attackers left, he proceeded to the gate where he met two police officers. The officers called the OCS Dongo Kundu Weighbridge Police Station who thereafter informed the OCS Maganda Police Station. A backup team was sent to the scene. 98.He stated that a search was conducted for the firearm but it was not recovered. DCI officers from Jomvu later arrived and commenced investigations. He was subsequently taken to Mikindani Police Station where he recorded his statement. 99.PW11 testified that an identification parade was conducted but he was unable to identify any suspect because he did not see the faces of the attackers. 100.During cross-examination, PW11 maintained that he was attacked by a group of between ten and fifteen people but he could not identify any of them. He stated that although two police officers were supposed to be on duty that night, his colleague was expected to join him later. He denied having been under the influence of alcohol on the material night. 101.PW12 was Sergeant Bernard Tanui, attached to Maganda Police Station and in charge of the armory. He testified that on 13th March, 2026 at about 7.30 p.m., he issued PC James Kobia with an AK47 rifle Serial Number 5426917 together with thirty rounds of 7.62mm ammunition as the officer had been assigned duty at Bonje Industrial Park. 102.PW12 identified the AK47 rifle, the magazine and the ammunition in court. He also identified the firearm movement register and duty roster showing that PC James Kobia had been assigned duties at Bonje Industrial Park. 103.He testified that at about midnight he received a call from the OCS Maganda Police Station informing him that a firearm had been stolen and requesting him to proceed to the scene to confirm what had happened. 104.Upon arrival, he found PC Kobia, a security guard and other police officers from the weighbridge. He confirmed that PC Kobia was no longer in possession of the firearm. The security guard also reported that his phone had been stolen. 105.PW12 stated that the matter was reported to DCI officers and OCS Mikindani Police Station and investigations commenced. 106.He testified that on 17th March, 2026 the firearm was recovered by DCI officers and he proceeded to confirm that it was the same firearm issued to PC Kobia. 107.He further the testified that the 2nd accused was injured and he took him to portliz hospital and that he did not know the 1st accused. 108.PW13 was Inspector Julius Odera, the Deputy OCS Maganda Police Station. He testified that at the time of the incident he was the acting OCS Maganda police station. 109.He stated that on 14th March, 2026 at about 1.00 a.m., he received information from the OCS Maganda Police Station that PC Kobia had been robbed of his firearm. He proceeded to the scene where he found officers from Dongo Kundu Weighbridge Police Station, officers from Mikindani Police Station and PC Kobia. 110.They conducted a search for the firearm but were unable to recover it. 111.PW13 testified that on 17th March, 2026 he was called by the OCS Maganda Police Station and informed that a firearm had been recovered. He proceeded to the station where he found an AK47 rifle together with thirty rounds of 7.62mm ammunition. 112.He examined the firearm movement register and confirmed that the recovered firearm was Serial Number 5426917, the same firearm that had been issued to PC James Kobia. 113.He identified the firearm, magazine and ammunition in court. 114.PW14 was Florence Karimi, a firearm examiner attached to the DCI Headquarters Ballistics Section. 115.She testified that on 4th June, 2026, she received exhibits submitted by PC Martin Mwangi from DCI Jomvu. The exhibits included an AK47 assault rifle Serial Number 5426917, one magazine and thirty rounds of ammunition. 116.She examined the firearm and found that it bore National Police Service markings, namely KEKP5426917. She testified that the firearm was in good general and mechanical condition and was complete with all its components. 117.She conducted a test fire on the firearm and confirmed that it was capable of firing. She prepared and produced her ballistic report in court. 118.PW14 concluded that the recovered rifle was a firearm and that the rounds of ammunition were ammunition within the meaning of the Firearms Act. 119.PW15 was Joshua Nandwa, a Clinical Officer at Port Reitz Hospital. 120.He testified that PC James Kobia was brought to the hospital on 18th March, 2026 with complaints of having been assaulted by a group of men armed with crude weapons, including pangas. He reported that he had been robbed of his AK47 rifle, mobile phone and thirty rounds of ammunition. 121.PW15 examined him and found tenderness on the middle of the chest, upper and lower limbs, back pains and pain on the right foot. There was no evidence of fracture. He assessed the injuries as being approximately five days old. 122.He treated him with antibiotics and filled a P3 form which he produced in court. 123.PW16 was Peter Libuku, a security guard working with B2K Company. 124.He testified that on 13th March,2026 at about 11.50 p.m., while at the gate of Bonje Industrial Park, he heard people shouting, "Shika huyo." He went to check what was happening and saw a crowd of people. 125.He became afraid, ran and hid himself inside a building. He sent a text message to his supervisor informing him of what had happened. His supervisor called him back and informed him that they had arrived. 126.PW16 later came out and found police officers at the scene. He testified that he did not see the attackers and was therefore unable to identify them. He later recorded his statement. 127.PW17 was Inspector Boniface Manyasi Chifoh, the Investigating Officer. 128.He testified that at the time of the incident he was the Deputy DCIO Jomvu and was the investigating officer in this matter. 129.He stated that on 13th March, 2026 while at his house, he received a call from the OCS Mikindani informing him that there had been a robbery at Bonje Industrial Park. He proceeded to Mikindani Police Station and thereafter accompanied other officers to the scene. 130.Upon arrival, they found PC James Kobia and a security guard, Athman Abae. They interviewed them and were informed that they had been attacked by an unknown number of people. He stated that the security guard managed to escape but his mobile phone was stolen while PC Kobia's AK47 rifle had been taken and his phone too. 131.PW17 testified that the firearm was Serial Number 5426917 and had thirty rounds of 7.62mm ammunition. He identified the rifle, magazine and ammunition in court and produced them as exhibits. 132.He stated that he commenced investigations by obtaining the firearm movement register from Maganda Police Station. The register confirmed that PC Kobia had been issued with the firearm under entry number 1492 dated 13th March, 2026.He produced it as an exhibit 133.He further obtained the duty roster which confirmed that PC Kobia had been assigned duty at Bonje Industrial Park on the material night which he also produced as an exhibit 134.PW17 testified that investigations continued and that the stolen phone belonging to Athman Abae assisted police officers in tracing suspects. He stated that the suspects were taken before court for custodial orders in Miscellaneous Applications Nos. E227 of 2026 and E230 of 2026. 135.He testified that on 17th March, 2026 the firearm was recovered from the house of the 1st accused person. An inventory was prepared and produced in court as an exhibit. 136.PW17 stated that it was the 2nd accused person who led police officers to the house of the 1st accused where the firearm was recovered. He produced the exhibit memo, the sack carrier bag in which the firearm was recovered, and other investigation documents. 137.He further testified that some suspects who had initially been arrested were converted into prosecution witnesses and according to their statements, the 2nd accused person had organized the operation at Bonje Industrial Park which resulted in the theft of the firearm. 138.During cross-examination, PW17 stated that although the firearm was recovered from the house of the 1st accused, he was not personally part of the recovery team. He also stated that he was not aware whether the 1st accused had any grudge with PC Sifuna. 139.At the close of the prosecution case, this court considered the evidence and found that both accused persons had a case to answer. They were placed on their defence. C. Defence Case. 140.Upon being placed on their defence, both accused persons elected to give sworn evidence. Neither accused person called any witness. I. Defence of the 1st Accused Person. 141.The 1st accused person denied all the charges facing him. He testified that on the material day he went to work and later returned home at about 10.30 a.m. After taking lunch, he slept until about 5.00 p.m. 142.He stated that later in the evening he went to Handshake Bar in Mikindani where he relaxed until about 11.00 p.m. when the bar was closing. He testified that he left the bar and while waiting for a motorcycle to take him home, a police vehicle passing by stopped. 143.He stated that two police officers questioned him on why he was outside at that hour and thereafter arrested him. He was taken to Mikindani Police Station and later presented before court. 144.He testified that he did not know why he had been arrested. He stated that the following day PC Sifuna came to him and told him that he had been looking for him and had finally found him. 145.He alleged that he was beaten and tortured by police officers in order to force him to admit involvement in the offence. He denied having been found in possession of any firearm. 146.He further testified that he had a disagreement with PC Sifuna in February 2026 relating to a girlfriend. He stated that PC Sifuna had threatened him that he would regret refusing to leave the relationship. 147.He maintained that the charges against him were false and that he did not commit any offence. II. Defense of the 2nd Accused Person. 148.The 2nd accused person also denied all the charges. He testified that on 17th March, 2026 he returned home from work in the evening at about 6.00 p.m. 149.He stated that he later went to a chang'aa den and at about 10.00 p.m. police officers raided the place. He testified that when the officers arrived, he attempted to run away. 150.He stated that two police officers chased him and ordered him to stop, threatening to shoot him. He testified that he was subsequently shot on the leg and later found himself at Port Reitz Hospital. 151.He further testified that while at Port Reitz Hospital, the police officers apologized and informed him that they had shot him by mistake but would take care of his medical expenses. 152.He stated that he was informed that he had been shot by PC Mulewa. He testified that he knew PC Mulewa because they had a previous disagreement arising from another case before the Mombasa Law Courts where he alleged that PC Mulewa had demanded money from him and he had refused to give it. 153.The 2nd accused maintained that the charges against him were false and that he had no involvement in the robbery at Bonje Industrial Park. 154.At the close of the defence case, the matter was reserved for judgment. D. Analysis and Determination. 155.I have carefully considered the evidence presented by the prosecution, the defense tendered by both accused persons and the exhibits produced before court. 156.The burden of proving the guilt of an accused person rests entirely upon the prosecution throughout the trial. In criminal cases such as this, that burden is proof beyond reasonable doubt, and it rests wholly upon the Prosecution. It is a burden that never shifts to the accused person except on few statutory exceptions. There is a long line of judicial authority to this effect, but perhaps the most frequently cited is Woolmington v DPP (1935) AC 462, whereby Viscount Sankey L.C held that: -“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offense was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’ 157.It is cliché to quote Miller vs Ministry of Pensions, [1947] 2All ER 372] but this authority has been been one of the most celebrated authorities, some authorities however old they are, have earned that privilege of being quoted over and over. I digress. In that judgment,Lord Denning held as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of possibility. 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 cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence of court it is possible, but not in the least probable. The case is proved beyond reasonable doubt but nothing short of that will suffice.” E. Issues for Determination. 158.After the analysis of the evidence, the issues for determination are:a.Whether the prosecution proved beyond reasonable doubt that the accused persons conspired to commit a felony contrary to Section 393 of the Penal Code.b.Whether the prosecution proved beyond reasonable doubt that the 1st accused person was found in possession of a firearm without a firearm certificate.c.Whether the prosecution proved beyond reasonable doubt that the 1st accused person was found in possession of ammunition without a firearm certificate.d.Whether the prosecution proved beyond reasonable doubt that the 1st accused person was in possession of Government stores. 159.In respect to the first issue, the offence of conspiracy involves an agreement between two or more persons to commit an unlawful act. The agreement may in appropriate circumstances be inferred from the conduct of the accused persons and the surrounding circumstances. 160.Section 393 of the Penal code provides: -Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to that lesser punishment. 161.In Christopher Wafula Makokha v Republic [2014] KEHC 4643 (KLR) Justice A. Mabeya sitting at the High Court in Bungoma while addressing the charge of conspiracy to commit a felony held that: -From the foregoing, it is clear that the prosecution must prove the existence of an agreement between the accused and some other person to do the act complained of… 162.In the present case, there is no dispute that an armed robbery occurred at Bonje Industrial Park on the night of 13th and 14th March, 2026. The evidence of prosecution witnesses clearly established that PC James Kobia was attacked and robbed of an AK47 rifle Serial Number 5426917 together with a magazine containing thirty rounds of 7.62mm ammunition. 163.The evidence of PW11 was that he was attacked by a group of persons while performing his duties. He testified that one of the attackers threatened him with a panga before forcefully taking away his firearm. He, however, did not identify any of the attackers because the incident occurred at night and visibility was poor. 164.The court therefore finds that there was no direct evidence placing either accused person at the actual scene of the robbery. 165.The prosecution case against the accused persons was largely based on circumstantial evidence and the evidence of witnesses who interacted with the 2nd accused before the incident. 166.PW7, PW8 and PW10 gave evidence that the 2nd accused person recruited them on the pretext that there was casual work available at Bonje Industrial Park involving loading goods. They testified that they were promised payment for the work. 167.The evidence of these witnesses was consistent in material particulars. They all stated that they assembled at Bangladesh stage and proceeded towards Bonje Industrial Park. PW7 and PW10 testified that after reaching the area, they entered the premises following instructions from the 2nd accused. 168.The court notes that PW8 left the group before the incident occurred. However, his evidence corroborated the circumstances under which the group was assembled and the explanation given by the 2nd accused. 169.PW10 testified that after entering the premises, they heard people shouting "Shika hao" and he fled from the scene. His evidence placed the 2nd accused as the person who had organized and assembled the group. 170.The evidence of PW7 was also significant. He testified that the 1st accused was among the people who proceeded to Bonje Industrial Park on the material night. 171.The prosecution further relied on the events following the robbery, particularly the recovery of the firearm. 172.PW3 and PW4 testified that after the arrest of the 2nd accused person, he led police officers to the house of the 1st accused person at Narcol Estate. They testified that the firearm was recovered from the ceiling of the house concealed inside a sack carrier bag. 173.The court finds that the recovery of the firearm only three days after it was stolen is a significant circumstance connecting the accused persons to the offence. 174.However, before making a final finding on Count I, the court must separately consider the evidence against each accused person and the explanation offered by each in their defence. 175.The prosecution evidence against the 2nd accused person is mainly circumstantial, supported by the testimony of witnesses who stated that he was the person who assembled the group that proceeded to Bonje Industrial Park on the material night. 176.PW7, PW8 and PW10 were independent witnesses who had no apparent reason to falsely implicate the 2nd accused. Their evidence was that the 2nd accused approached them and informed them of a job opportunity involving loading goods at Bonje Industrial Park. They were promised payment for the work. 177.The court notes that the witnesses were not involved in the actual taking of the firearm and none of them witnessed the attack on PC Kobia. However, their evidence placed the 2nd accused as the person who organized the movement of the group to the location where the robbery later occurred. 178.The prosecution evidence further established that after the arrest of the 2nd accused, he led police officers to the residence of the 1st accused where the stolen firearm was recovered. 179.The conduct of the 2nd accused after the incident is also relevant. PW7 testified that when he met the 2nd accused the following morning and asked what had happened, the 2nd accused informed him that his employer had failed to bring the lorry and that he had heard police officers were looking for a firearm and illicit alcohol. 180.This conversation, when considered together with the other evidence, is an incriminating circumstance. 181.The 2nd accused denied involvement and alleged that he had been framed by PW4 due to a previous disagreement. He stated that PW4 had demanded money from him in another matter and became hostile when he refused. 182.The court has considered that allegation. However, the 2nd accused did not call any evidence to support the existence of such a grudge. Mere allegations of bad blood without supporting evidence cannot, on their own, discredit otherwise credible prosecution evidence. 183.The court finds that the evidence against the 2nd accused person, considered cumulatively, establishes that he was not merely present at the scene but was involved in organizing the group that went to Bonje Industrial Park that night. 184.The court is therefore satisfied that the prosecution proved beyond reasonable doubt that the 2nd accused person was part of the conspiracy to commit the felony of robbery. 185.Now turning to the 1st accused person to establish whether he was part of the conspiracy, The evidence connecting him to the conspiracy is different from that against the 2nd accused. 186.PW7 testified that he saw the 1st accused among the people who proceeded to Bonje Industrial Park on the material night. However, PW7 admitted that after the group split, the accused persons were not with him. 187.There was therefore no direct evidence showing the 1st accused person participated in the actual attack. 188.The only evidence against the 1st accused is the recovery of the stolen firearm from his house. 189.PW3 and PW4 testified that after arresting the 2nd accused, he led police officers to the house of the 1st accused at Narcol Estate. They found the 1st accused hiding in the ceiling. Upon searching the ceiling, the firearm was recovered concealed inside a sack carrier bag. 190.The 1st accused denied possession of the firearm and alleged that he had been framed by PW3 due to a personal disagreement. He claimed that PW3 had threatened him over a relationship involving a girlfriend. 191.The court has considered this defense. While it is possible for personal disagreements to exist between individuals, such allegations must be supported by evidence. In this case, no evidence was presented to demonstrate that PW3 had any motive to falsely implicate the 1st accused. 192.Further, the recovery of the firearm was not based solely on the evidence of PW3. PW4 was present during the recovery and independently confirmed the circumstances under which the firearm was recovered. The investigating officer also confirmed that the firearm was recovered from the residence of the 1st accused. 193.The court finds that the defence of the 1st accused does not sufficiently explain why a firearm which had been stolen from PC Kobia three days earlier was found hidden in the ceiling of his house. 194.The doctrine of recent possession therefore becomes relevant. The doctrine of recent possession is a presumption of fact arising under section 119 of the Evidence Act, Cap 80 Laws of Kenya which provides:The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 195.In other words, or rather simply put to fit this case, where an accused person is found in possession of recently stolen property and fails to offer a reasonable explanation as to how he came into possession, the court may draw an inference that he was either the thief or a person involved in the offence. 196.The High court in Mombasa in the case of Malingi Katana Malingi v Republic [1989] KEHC 109 (KLR) held that.By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution have proved certain basic facts. Firstly, that the item he had in his possession had been stolen; it had been stolen a short period prior to the possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and circumstances of the case, recent; that there are no co-existing circumstances which point to any other person as having been in possession of the item. The doctrine being a presumption of fact is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn that he either stole it or was a guilty receiver. 197.In this case, the firearm was recovered only three days after the robbery. It bore the same serial number as the firearm issued to PC Kobia. The 1st accused offered no plausible explanation for its presence in his house. 198.The court therefore finds that the prosecution proved beyond reasonable doubt that the 1st accused person was connected to the conspiracy. 199.Accordingly, on Count I, the court finds that the prosecution was able to prove its case to the required standards of beyond reasonable doubts against both accused persons. 200.In respect to count 2, the prosecution was required to prove that:a.The 1st accused was found in possession of a firearm; andb.He did not hold a valid firearm certificate. 201.The evidence of PW3 and PW4 was that the AK47 rifle Serial Number 5426917 was recovered from the ceiling of the 1st accused's house. The firearm had been concealed inside a sack carrier bag. 202.PW12, the officer in charge or armory, confirmed that the firearm had been issued to PC James Kobia on the material night. 203.PW13 confirmed that the firearm recovered was the same firearm issued by Maganda Police Station. 204.PW14, the firearm examiner, examined the rifle and confirmed that it was a firearm capable of being fired within the meaning of the Firearms Act. 205.The 1st accused did not produce any firearm certificate or claim that he was legally authorized to possess the firearm. His defense was a complete denial of possession. 206.The court has already found that the firearm was recovered from his house and that he failed to provide any reasonable explanation for its presence there. The court therefore finds that the prosecution proved count 2 against the 1st accused person beyond reasonable doubt that he was in possession of a firearm without a firearm certificate. 207.In respect to count 3, the prosecution was required to prove that the 1st accused person was found in possession of ammunition without a valid firearm certificate. 208.The evidence before court is that when the firearm was recovered from the ceiling of his house, it was accompanied by a magazine containing thirty (30) rounds of 7.62mm calibre ammunition. 209.PW3 testified that upon climbing into the ceiling, he recovered the firearm which had been placed inside a sack carrier bag. He identified the magazine and the ammunition recovered together with the firearm. 210.PW4 corroborated the evidence of PW3 and confirmed that the firearm, magazine and ammunition were recovered from the ceiling of the 1st accused's house. 211.The evidence of PW12, the armory officer, was that the firearm had been issued to PC James Kobia together with thirty rounds of 7.62mm ammunition on the night he proceeded to duty at Bonje Industrial Park. 212.PW14, the firearm examiner, examined the ammunition and confirmed that the same constituted ammunition within the meaning of the Firearms Act. 213.The 1st accused did not provide any explanation as to how the ammunition came to be in his house. He merely denied possession and alleged that he had been framed by police officers. The court has already found that the recovery witnesses were credible and that the firearm was recovered from the residence of the 1st accused. The ammunition was recovered together with the firearm and formed part of the same exhibit. 214.The court therefore finds that the prosecution proved count 3 against the 1st accused person beyond reasonable doubts that he was in possession of ammunition without a firearm certificate. 215.In respect to count 4, for the prosecution to prove this count, it had to establish that:a.The accused was in possession of the property alleged to be Government stores;b.The property belonged to the Government; andc.The circumstances were such that the property was reasonably suspected of having been stolen or unlawfully obtained. 216.The evidence of PW11, PC James Kobia, was that he had been issued with an AK47 rifle Serial Number 5426917 together with thirty rounds of ammunition while proceeding to perform his duties at Bonje Industrial Park. 217.PW12, the armoury officer, produced the firearm movement register confirming that the firearm had been issued to PC Kobia. 218.PW13, the Deputy OCS Maganda Police Station, confirmed that after the firearm was recovered, he examined the serial number and confirmed that it was the same firearm issued to PC Kobia. 219.PW14 confirmed that the firearm bore National Police Service markings and was a functional firearm. 220.The evidence therefore established that the firearm was property belonging to the National Police Service. The court having already found that the firearm was recovered from the residence of the 1st accused person only three days after it had been stolen from PC Kobia and he did not provide any lawful explanation for his possession of the firearm finds that the prosecution has proved the same beyond reasonable doubt. 221.The court has also considered the defenses raised by both accused persons. The 1st accused person alleged that he had been framed by PC Sifuna due to a personal disagreement. He further alleged that he was assaulted and forced to sign documents. 222.The court has considered these allegations. However, no complaint of assault was produced before court, and no independent evidence was called to support the allegation of a grudge. Further, the recovery of the firearm was witnessed by more than one police officer and was supported by the evidence of the investigating officer and documentary exhibits. The court therefore finds that the allegation of a frame-up was an afterthought intended to cast doubt on credible prosecution evidence and is hereby dismissed. 223.The 2nd accused person alleged that he had been falsely implicated by PC Mulewa due to a previous disagreement involving alleged demands for money. I note that allegations of misconduct against police officers are serious. However, such allegations must be proved by evidence. In this case, the 2nd accused did not provide evidence to demonstrate the existence of such a disagreement or that the police officers fabricated the case against him. 224.I have further noted that the evidence against the 2nd accused did not rest solely on the testimony of PW4. Several independent witnesses, including PW7, PW8 and PW10, testified about his role in assembling the group that proceeded to Bonje Industrial Park. The court therefore finds that the defence raised by the second accused person as an afterthought and is hereby dismissed. 225.Having considered the entire evidence, the court finds that the prosecution has proved its case beyond reasonable doubt against both accused persons. 226.In respect to the 1st count, the court finds accused 1 and accused 2 guilty and they are convicted under section 215 of the CPC. 227.In respect to count 2,3 and 4 the first accused is found guilty in each and every count and is convicted under section 215 of the penal code for each and every count. SIGNED DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.---------------------------------------HON. JAMLICK MURIITHI MWENDARESIDENT MAGISTRATEIn Presence ofMr Ngigi-Prosecutor.Accused personGetrude-Court assistant