https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/404

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA MAGISTRATE COURT CASE NUMBER: MCCR/E557/2026 REPUBLIC VS PIUS OKETCH AND KELLAS WANYONYI JUDGEMENT BEFORE HON.JAMLICK MURIITHI MWENDA. 1. **INTRODUCTION.** 2. The accused person herein was charged with the offence of Stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. 3. The particulars of the offence were that on the 4th day of April, 2026 at about 1800hrs at Bakery area, Likoni Sub-County within Mombasa County, the accused person stole Kshs. 223,250, the property of Leonard Obiso. 4. The accused person denied the charge and the matter proceeded to full trial. The prosecution called four (4) witnesses in support of its case. 5. **PROSECUTIONS CASE.** 6. PW1 Leonard Obiso testified that he is a businessman and operates a shop which also has an Mpesa outlet. He stated that on 4th April, 2026 at about 1800hrs, while at his shop, the accused person went there. 7. He testified that he was at the time talking over the phone and when he went to serve the accused, the accused gave him his phone which displayed a customer care number for Safaricom on the screen. He took the phone and the person on the other end asked whether he was at Kenya Net Links shop. 8. PW1 answered in the affirmative. The caller then informed him that the accused person had withdrawn money and had mistakenly deleted the Mpesa message. PW1 told the caller that Safaricom would be able to assist the accused. 9. He testified that he was unable to assist. At that point, the accused took back the phone and told the caller that PW1 was not willing to help him. 10. PW1 stated that he later took the phone again and the caller gave him a code which he was instructed to enter on his Mpesa line. He complied with the instructions. When he asked the accused who had called, the accused informed him that it was Safaricom customer care. 11. The witness testified that after entering the code, he checked his Mpesa balance and realized that Kshs. 223,250 had been withdrawn from his account. 12. He asked the accused to terminate the call. His friend, who was at the shop, took the accused’s phone and checked the number which had called. He discovered that it was an Airtel number, although it had been saved in the phone as Safaricom Customer Care. 13. PW1 testified that the accused attempted to run away but he and his friend managed to restrain him. He stated that the number appearing on the accused’s phone was 0722000000. 14. He further testified that the person who received the money was Isaih Munga and the balance remaining in his Mpesa account was Kshs. 30,975. 15. PW1 testified that they arrested the accused and took him to Likoni Police Station. he later obtained an Mpesa statement showing the withdrawal transaction and the time of withdrawal as 1843hrs. He identified the Mpesa statement which was later produced in court as evidence. 1. On cross examination, PW1 stated that he had been a businessman for about ten years. He testified that he followed the instructions of the caller because he believed the call was from Safaricom and did not expect to be conned. 2. He further stated that he later learnt that the accused had planned the incident in advance since he had earlier taken a photograph of his shop. 3. PW2 Lameck Isaboke testified that on 4th April, 2026 at about 1800hrs, he had gone to Power point Shop to buy a remote. He met three people there, including the accused person. 4. He stated that the accused person's phone rang and the accused gave the phone to the complainant, who started talking to the caller. 5. He testified that after the complainant finished speaking, the accused took back the phone. 6. PW2 stated that Raphael, who was also present, took the accused’s phone to confirm the number which had called. They discovered that it was an Airtel number although it appeared on the phone as Safaricom Customer Care. 7. PW2 testified that at that time Leonard realized that money had disappeared from his Mpesa account. Raphael and Leonard restrained the accused and took him to the police station. 8. PW3 Raphael Kongowea testified that on 4th April, 2026 at about 1800hrs, he had gone to the complainant’s shop to see him as they are friends. 9. Upon arrival, he found the complainant questioning the accused. After sometime someone called the accused persons phone and the accused gave the complainant, he talked and after sometime he hanged up. He testified that he heard the complainant saying that money had disappeared from his Mpesa line. The witness asked the complainant what had happened and the complainant informed him that he had tried to purchase credit but discovered that there was no float. 10. PW3 stated that he took the accused person's phone and checked the number which had called. He realized that it was another number saved as Safaricom. 11. He informed the complainant. When the accused realized that he had been discovered, he attempted to run away but they overpowered him and took him to Likoni Police Station. 12. PW4 Investigating Officer testified that he recorded statements from witnesses, visited the scene and investigated the matter. 13. He produced an Mpesa statement showing that on 4th April, 2026, Kshs. 223,250 was withdrawn from Kenya Net Links Comms Shop. 14. His testimony was just a repetition of the evidence of PW1. 15. At the close of the prosecution case, the court found that the accused had a case to answer and placed him on his defense. 16. **DEFENCE CASE.** 17. Upon being placed on his defense, the accused person denied the charge. He testified that he did not know the person who had called him. He stated that he had been informed that he had won a lottery and had been instructed to go to an Mpesa shop. 18. He testified that he went to the complainant’s shop where he gave the complainant his phone. He stated that the caller had instructed him to save the customer care number, which he did. The accused further stated that he was sick and suffering and at that juncture, he closed his defense. 19. **ANALYSIS AND DETERMINATION.** 20. The duty of this court at this stage is to determine whether the prosecution proved the charge against the accused person beyond reasonable doubt. 21. In ***Woolmington v DPP [1935] AC 462***, Viscount Sankey J held that: ***…that throughout the web of criminal law runs the golden thread that it is the duty of the prosecution to prove the prisoner's guilt. That burden never shifts save in a few statutory exceptions……*** 1. The accused person was charged with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code. Section 268(1) of the Penal Code provides that: ***“A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, is said to steal.”*** 1. Therefore, for such a charge to succeed, the prosecution therefore had the burden of proving the following ingredients beyond any reasonable doubts that: 2. That there was a thing capable of being stolen; 3. That the property belonged to another person; 4. That the accused took or converted the property; 5. That the taking or conversion was fraudulent and without any claim of right. 6. The burden of proof remains with the prosecution throughout the trial and the accused person bears no obligation to prove his innocence at all. 7. On the first ingredient on whether there was property capable of being stolen, the prosecution evidence was that the complainant operated an Mpesa outlet and Kshs. 223,250 which was part of the float was stolen. PW1 testified that after following instructions given by the caller, he later checked his Mpesa balance and discovered that Kshs. 223,250 had been withdrawn. 8. PW4, the Investigating Officer, produced an Mpesa statement showing that on 4th April, 2026, Kshs. 223,250 was withdrawn from Kenya Net Links Comms Shop. 9. The court therefore finds that the prosecution proved the existence of the property alleged to have been stolen and now the shift turns to the second ingredient on whether the money belonged to the complainant. 10. PW1 testified that the money withdrawn was from his Mpesa outlet. He stated that after the transaction his remaining balance was Kshs. 30,975. His evidence was supported by the Mpesa statement produced by the Investigating Officer. There was no evidence challenging the complainant’s ownership or possession of the said money and therefore the court finds that the prosecution proved that the money was the property of the complainant, Leonard Obiso. 11. On the 3rd and most crucial issue on whether the accused person fraudulently stole the complainant’s money, the prosecution evidence was that the accused person went to the complainant’s shop and presented a phone which displayed a Safaricom customer care number. The caller informed the complainant that the accused had withdrawn money and had mistakenly deleted the Mpesa message. 12. The complainant, believing that he was communicating with Safaricom customer care, followed the instructions given and entered a code on his Mpesa line and immediately thereafter, Kshs. 223,250/= was withdrawn from his account. 13. The evidence of PW1 was corroborated by PW2 and PW3, who were present at the shop. PW3 testified that he checked the accused person’s phone and discovered that the number which had called was an Airtel number, although it had been saved as Safaricom customer care. 14. The court notes that the accused person, in his defence, admitted that the phone had been given to the complainant and that the caller had instructed him to save the customer care number. 15. The accused however denied knowledge of the person who called and stated that he had been informed that he had won a lottery. I have considered this defence and the explanation by the accused person does not reasonably explain why the caller specifically required the complainant to enter certain instructions on his Mpesa line, nor does it explain why the number calling was saved in the accused’s phone as Safaricom Customer Care despite being an Airtel number. 16. The circumstances surrounding the transaction point to a deliberate deception intended to make the complainant believe that he was communicating with Safaricom customer care. 17. The saving of the number as Safaricom Customer Care, the presentation of the phone to the complainant, the instructions given to the complainant and the immediate disappearance of the funds were not mere coincidence. In my view, they form a chain of circumstances which, when considered together, irresistibly point to the accused person’s involvement. 18. The Court of Appeal in ***Sawe v Republic [2003] KLR 364*** at paragraph 22 held that; ***As we have already pointed out. the evidence in this case was entirely circumstantial. In order to justify, on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of Iris guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied on. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden, which never shifts to the party accused.*** 1. In this case, the circumstances established by the prosecution are incompatible with the accused person’s innocence. 2. On the last issue on whether the accused acted fraudulently and without claim of right, the evidence before court demonstrates that the accused person caused the complainant to believe that the caller was a Safaricom representative. The complainant only entered the instructions because he believed they originated from Safaricom. 3. The accused person had no authority or claim of right over the complainant’s money. The withdrawal of Kshs. 223,250 from the complainant’s Mpesa account was therefore fraudulent. I am therefore satisfied that the prosecution proved this ingredient beyond reasonable doubt. 4. **CONCLUSION.** 5. Having considered the evidence as a whole, the court finds that the prosecution proved all the ingredients of the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code against the accused person. 6. The accused person’s defence was a mere denial and did not displace the strong prosecution evidence and it is hereby dismissed. 7. The accused person is therefore found guilty and convicted under section 215 of the CPC. **SIGNED DATED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY, 2026.** **---------------------------------------** **HON. JAMLICK MURIITHI MWENDA** **(RESIDENT MAGISTRATE)** **In Presence of** **Mr Ngigi-Prosecutor.** **Accused person** **Getrude-Court assistant**