https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/614

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT BUNGOMA** **CRIMINAL CASE NO. E1386 OF 2025** **REPUBLIC…………………………………………………………………………………DPP** **VERSUS** **HILLARY OMUSE & SAMMY NATO……..………………………..ACCUSED PERSONS** **JUDGMENT** 1. Hillary Omuse Magero (“the 1st Accused Person), and Sammy Nato Mulunda (“the 2nd Accused Person”), jointly referred to as “the Accused Persons,” were on 13th November 2025 called upon to plead to a charge of conveying suspected stolen stock contrary to section 9 (1) of the Stock and Produce Act as read with section 275 of the Penal Code, whose particulars were that: *On the 12th day of November 2025 at around 0400hrs at Musese market along Chwele – Bungoma road in Chwele location, Bungoma Central Sub-County within Bungoma County jointly with others not before court aboard motor vehicle registration number KMGS 294 A make TVS HLX 150 were conveying one brown calf reasonably suspected to have been stolen or unlawfully obtained* 1. The Accused Persons denied the charge facing them, setting the stage for the prosecution to prove its case against them beyond reasonable doubt. 2. The 2nd Accused Person absconded before this matter was set down for hearing. Despite several warrants of arrest, the investigating officer failed to arrest the 2nd Accused Person. 3. In the circumstances, on 04th February 2026, the prosecution made an application to proceed with the case in the absence of the 2nd Accused Person since the 2nd Accused Person had made his attendance untenable. 4. This court allowed the prosecution’s application to proceed with the case in the absence of the 2nd Accused Person since Article 50(2)(f) of the Constitution permits a criminal matter to proceed in the absence of an Accused Person where an Accused Person willfully makes their attendance untenable, regardless of the gravity of the offence facing such an Accused Person. 5. In deciding to proceed with this case in the absence of the 1st Accused Person, this court’s decision was in line with the holding in **Republic v Galma Abagaro Shano [2017] eKLR,** where the learned Judge held that; *“This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court…This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony…It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him…”* 1. The reasoning in the Galma Abagaro Shano case (supra) was also followed in **Republic v Teteror (Criminal Case 2 of 2017) [2023] KEHC 18592 (KLR)** and **Bett v Republic (Criminal Revision E605 of 2023) [2024] KEHC 3560 (KLR).** 2. The evidence led by the prosecution before this court is summarized below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 No. 121846 PC Robert Kivuvo** of DCI Chwele recalled that on 12th November 2025, at around 0400hrs, while in the company of PW2 and PW3 on routine patrol aboard motor vehicle registration number GKB 130 Z, they saw three persons carrying a calf on a motorcycle. They waved down the three persons to stop, but the said persons did not stop. 2. They gave chase, and he fired one round of ammunition in the air to scare the fleeing persons. They caught up with the 1st Accused Person, who had alighted from the motorcycle, with the calf. He added that the other two persons fled on a motorcycle registration number KMGS 294 A. 3. They led the 1st Accused Person to the police station and later arrested the 2nd Accused Person riding motor cycle registration number KMGS 294 A. 4. He added in cross-examination that the 1st Accused Person was armed with a panga at the time of his arrest. 5. **PW2 No. 235034 PC Martin Ogora** of DCI Chwele corroborated PW1’s testimony regarding the circumstances under which the offence herein was committed. 6. **PW3 No. 25472 PC Collins Ekasiba** of DCI Chwele’s testimony also corroborated PW1 and PW2’s testimonies on the circumstances under which the offence herein was committed, and how the Accused Persons were arrested. 7. He produced the photos showing the recovered calf and motorbike as exhibits, as well as the photos’ certificate of print. He added that the Accused Persons were charged because they failed to explain the circumstances under which they were carrying the calf on the date of the incident. **1st Accused Person’s Case** 1. Upon the close of the prosecution’s case, this court placed the Accused Persons on their defence. The 1st Accused Person elected to give sworn testimony. 2. The 1st Accused Person denied committing the offence. His testimony was that on 11th November 2025, he was at the 2nd Accused Person’s brother, one Lawrence Simiyu’s home to do carpentry work. He added that he spent a night at Simiyu’s home when he left for his home the following morning at 0400hrs while aboard the 2nd Accused Person’s motorbike while carrying a claw hammer, three chisels, and a handsaw. 3. He further stated that when they reached Musese area, they were stopped by police officers in civilian clothes who arrested him and led him to Chwele, where police officers reportedly beat him for being a stranger in Chwele. 4. He admitted in cross-examination that the 2nd Accused Person was the one riding the motorcycle when police officers arrested him that morning. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record. It is this court’s considered view that the only issue for determination is whether the prosecution proved its case beyond reasonable doubt. 2. The offence herein is expressed in section 9(1) of the Stock and Produce Theft Act as follows: *9. Illegal possession of stock* *(1) Any person who has in his possession any stock which may reasonably be suspected of being stolen or unlawfully obtained shall, if he fails to prove to the satisfaction of the court that he came by the stock lawfully, be guilty of an offence and liable on conviction to the penalties prescribed for theft.* *(2) For the purposes of this section it shall be sufficient, in order to raise a reasonable suspicion that the stock is stolen or unlawfully obtained, if, when required by the person who arrests him to account for his possession of the stock, the person arrested fails to account therefor or gives an account which the person who arrests him reasonably finds insufficient.* *(3) If any person is convicted of an offence under this section by a subordinate court of the first class, that court may award any penalty prescribed therefor.* 1. A reading of the above provisions of the law shows that section 9 (1) of the Stock and Produce Theft Act does not create an offence of conveying stolen stock at all. The said section only creates the offence of illegal possession of stock. 2. The particulars of the offence as set out in the charge sheet herein, when read together with the evidence on record, leave no doubt in this court’s mind that the prosecution set out to charge the Accused Persons with the offence of conveying stolen goods under section 323 of the Penal Code. 3. The foregoing begs the question whether the Accused Persons can be convicted by this court on an offence which they were not charged with. The answer to the above question is found in on **section 179**of the**Criminal Procedure Code**, which provides as follows: - (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved , he may be convicted of the minor offence although he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it. 1. The Court of Appeal sitting in Malindi in **Criminal Appeal No. 5 of 2013 Robert Mutungi Muumbi vs. Republic [2015] eKLR**had the following to say regarding the application of section 179 of the Criminal Procedure Code: - As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offence, even though he was not charged with that offence. The court contemplated by section 179 can be either the trial court or the appellate court. The real question here is not whether the appellant was charged with indecent assault of NK for which the High Court convicted him. That was not necessary under section 179. The question is whether the special circumstances contemplated by section 179 were in existence to enable the court convict the appellant of an offence with which he was not charged. An accused person charged with a major offence may be convicted of a minor offence if the main offence and the minor offence are cognate; that is to say, both are offences that are related or alike; of the same genus or species. To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the charge, constitute the minor offence. Secondly, that the major charge has given the accused person notice of all the circumstances constituting the minor offence of which he is to be convicted. (See ROBERT NDECHO & ANOTHER V. REX (1950-51) EA 171 and WACHIRA S/O NJENGA V. REGINA (1954) EA 398). Spry, J. explained the essence of the first consideration as follows in ALI MOHAMMED HASSANI MPANDA V. REPUBLIC [1963] EA 294, while construing the provision of the Tanzania Criminal Procedure Code equivalent to section 179 of the Kenya Criminal Procedure Code: * + 1. Subsection (1) envisages a process of subtraction: the court considers all the essential ingredients of the offence charged, finds one or more not to have been proved, finds that the remaining ingredients include all the essential ingredients of a minor, cognate, offence (proved) and may then, in its discretion, convict of that offence. That conclusion is reached at the stage of judgment when it is not practical to require the accused person to plead afresh to the minor offence. It is a decision premised on the discretion of the court based on the evidence adduced at the end of the trial. The second consideration arises, of necessity, precisely because the accused person is not charged with, and has not pleaded to, the minor cognate offence. The purpose of delving into this consideration is to satisfy the court that the accused person was not prejudiced, and that by being charged with the major offence, he had sufficient notice of all the elements that constitute the minor offence. (See REPUBLIC V. CHEYA & ANOTHER [1973] EA 500). 1. This court has duly considered the principles set out in the authorities above. 2. The offence under section 9 (1) of the Stock and Produce Theft Act is a serious offence compared to the offence of conveying stolen goods under section 323 of the Penal Code, which the evidence on record and the statement of offence herein disclose. 3. In addition to the above, the Accused Person will not be prejudiced in any way if this court proceeds to determine if the prosecution proved the offence of conveying stolen goods under section 323 of the Penal Code against him, since the prosecution’s evidence on record gave the Accused Person sufficient notice of all the elements of the said offence of conveying suspected stolen goods. 4. It is against this backdrop that this court invokes section 179 of the Criminal Procedure Code and proceeds to determine whether the prosecution proved beyond reasonable doubt that the Accused Person committed the offence of conveying suspected stolen goods under section 323 of the Penal Code. 5. Section 323 of the Penal Code sets out the offence of conveying suspected stolen goods as follows: *Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour.* **32.** Section 26(1) of the Criminal Procedure Code, on the other hand, provides that:- (1) A police officer, or other person authorized in writing in that behalf by the Inspector-General of the National Police Service, may stop, search and detain— (a) ................................... (b)..................................... (c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. 1. In **David Juma Tata v Republic [2019] eKLR**, the court stated that the conditions precedent to a finding of guilty under section 323 of the Penal Code as read with section 26(1) of the Criminal Procedure Code were set out in the case of **Kiondo Hamisi Vs Republic(1963) E.A 209***,* where the court stated that the prosecution must establish: 1. That the accused was, in fact, detained in the exercise of powers conferred by the relevant section of the Criminal Procedure Code; 2. That at the time when he was detained, the accused was in the course of a journey; 3. That at the time when he was detained, the accused had in his possession a particular thing; 4. That the thing was of such a nature, or the circumstances were such that it might reasonably be suspected of having been stolen or unlawfully obtained; and 5. That the accused refused to give an account to the court of how he came by the thing, or gave an account which was improbable as to be reasonable, or gave an account which was rebutted by the prosecution. 2. This begs the question whether the prosecution proved the ingredients of the offence above. 3. Turning to the facts of this case, the Accused Persons were detained by police officers in exercise of their powers under section 26 of the Penal Code while in the course of a journey. The evidence on record also shows that the Accused Persons were also found in possession of a calf at the time they were detained by police officers while on a journey. A calf is a particular thing within the meaning of section 323 of the Penal Code. 4. On whether the circumstances under which the Accused Persons were found with the calf might reasonably draw an inference that the calf had been stolen or unlawfully obtained, this court takes note of the fact that the Accused Persons were met by police officers at around 0400hrs while conveying a calf on a motorbike. 5. In the ordinary course of events, people do not ferry a calf on a motorbike as early as 0400hrs. Further, the Accused Persons' failure to stop when they were waved by police officers to stop on the morning of the incident invites an irresistible inference that the Accused Persons had either stolen or unlawfully obtained the calf they were conveying that day. 6. Finally, instead of giving a reasonable account of how he got into possession of the calf on the date of the incident under questionable circumstances, the 1st Accused Person simply denied committing the offence herein. That defence led by the 1st Accused Person did not dislodge the prosecution’s case that the Accused Persons were found conveying a calf reasonably suspected to have been stolen or unlawfully obtained on the date of the incident. **DETERMINATION** 1. For the reasons above, the Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of conveying suspected stolen goods under section 323 of the Penal Code. 2. It is so ordered. **Judgment read, signed, and delivered in open Court at Bungoma, this 06th day of May 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Accused Person Mr. Maroro for ODPP Accused Person C/A: Mr. Rioba