https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/386

Republic v PMW (Criminal Case E023 of 2025) [2026] KEMC 386 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEMC 386 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E023 of 2025 AK Njeru, SRM July 8, 2026 Between Republic Prosecution and PMW Accused Judgment 1.Accused has been charged with the offence of preparation to commit a felony contrary to section 308(3) of the Penal Code. Particulars are that on 18th January 2025 at around 0230hrs at Nyakhobi village, Nyakhobi Sublocation Nambuku location in Samia Sub County within Busia County, accused jointly with others not before court, was found with a spotlight slasher, rungu, military boots belonging to National Youth Service with intent to commit a felony. 2.Accused faced a second count of public stores contrary to section 324(2) of the Penal Code. Particulars are that on the 18th January 2025 at around 0230hrs at Nyakhobi village, Nyakhobi Sublocation Nambuku location in Samia Sub County within Busia County, had in his possession National Youth Service pair of boots, such property being reasonably suspected to having been stolen or unlawfully obtained. 3.Accused denied both counts and the prosecution presented its witnesses as follows: 4.PW1 Hashim Wasike Oduor testified that on 17th January 2025 around 12.30am, the people in his community following a recent surge of criminal activities organized the community policing group who gathered to patrol the village to weed out criminals. The group, comprising of himself, the village elder, Cleophas Okumu Nyabola, Cleophas Malala, William Ogutu and Elder Ojanji, patrolled the village that night. While in that activity, they came across a group of around 15 boys all armed with torches and pangas. Ojanji blew a whistle and the boys fled. They managed to run after them but only managed to capture accused herein whom they found with a torch(Red and black in colour), a slasher, wore National Youth Service boots and had a rungu. That accused tried to cut one of them with a panga but they managed to restrain him and disarm him. They escorted him to Funyula Police station and handed him over to the police together with the items found in his possession which are in court. On that day, there was no burial vigil in the village. They did not identify themselves as community policing group at the time of accused’s arrest. he did not have any evidence that the NYS boots found with accused were stolen property.it is not true that the rungu was collected from the ground after one of the boys in its possession dropped it. 5.PW2 Edgar Makokha, a village elder of Nakhubi village testified that on 17/1/2025 they gathered as a community policing group to patrol the village following a series of criminal activities in the area. they had information of a group of boys terrorizing residents at night while armed hence the need for the patrol. On that day, he in the comoany of PW1, Cleophas Nyabola, Willy Kwena, William Ogutu and others whose names he could not recall patrolled the village and at half past midnight, they came across a group of around 15 people with torches and weapons. He ordered them to stop but the men took out their weapons which were pangas, rungus and slashers. He could see them well because he also had light. They surrounded the group and on seeing this, they fled . his group ran after them and only managed to capture accused herein. They found accused with a large torch, red and black on colour, a slasher and rungu and escorted him to the police station at Funyula where they handed him and the weapons in his possession to the police. Accused was found wearing National Youth Service boots. Accused is well known to him prior to the incident as a known thief from a previous case where he had been involved in theft of a phone where he personally participated in his arrest. The case had been filed before Port Victoria Court Criminal case no. E141 of 2024the boys were not committing any offence at the time but were armed. 6.PW3 79996 CPL Gabriel Onyango testified as the investigating officer in the matter. That on 18/1/2025 while he was on duty at Funyula Police station at around 0400hrs, a group of people, among them one Wasike, a village elder, brought to the station a boy. They reported to have arrested him among a group of almost 15 boys who were known criminals in the village terrorizing members of the public during a night vigil in their vigil. The group was a terro group known as 32 brothers operating at night. They handed him over to the police together with a torch, a slasher, rungu and NYS boots which they stated to have found in his possession at the time of arrest when they captured him. Accused at the time had been beaten up by members of the public. They escorted him to the hospital, recorded the statements of the witnesses and formally arrested accused and charged him with the offence herein. He produced the Rungu/ machette as Pex no. 1, the slasher as Pex no. 2 and the torch as Pex no. 3. He produced the NYS military boots as Pex no. 4. On interrogation, accused denied the allegations. Accused had no shoes on arrival at the police station. There was no mark of NYS on the shoes, no report had been made of the theft or loss of the said shoes which are jungle green in colour and worn by the National Youth Service. He did not find out if the accused worked or had a relative working with NYS. It was presumed an offence to walk armed with a panga or rungu at night. 7.Accused was found with a case to answer and placed on his defence. His evidence was as follows: 8.DW1 P.M.W testified that on 18th January 2025, he was coming from a night vigil at around midnight heading home in the company of his cousins when he met a group of people along the road hiding in a thicket. They emerged from the thicket and his cousins ran off. He did not run. The group approached him and searched to find if he had any weapon of him which they did not find. They arrested him and began assaulting him. They identified themselves as the community policing group and had with them torches, pangas and rungus. They escorted him to the police station and reported him. He did not have in his possession the NYS boots neither did he have the torch, panga and rungu produced in court. he had no evidence to prove he was attending a vigil that night. he knew Edgar the village elder prior to this incident as his worked for him before and Edgar failed to pay him. He had no grudge against the rest of the community policing group. 9.I have considered the evidence presented by both parties as well as submissions by the defence.The issue for determination is whether on both counts, the prosecution has proved the charges beyond reasonable doubt. Count I: Preparation to Commit a Felony 10.Section 308(1) of the Penal Code, Cap 63 provides as follows:-308.Preparations to commit felony(1)Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years. 11.The evidence of PW1 and PW2 was consistent that the accused was encountered at about 2.30 a.m. in the company of a large group of about fifteen men. The group was armed with offensive weapons including pangas, slashers and rungus. Upon being challenged, the group immediately fled. The accused was apprehended and found armed with a slasher, a rungu and a powerful torch. 12.While considering the submissions of the defense as lifted verbatim in paragraphs 9 to 13 of the case of Republic v Ali [2025] KEMC 192 (KLR), this court observes that the accused did not merely happen to be present at the scene. He was part of a large armed group moving at an odd hour of the night. The conduct of the group in fleeing upon being challenged is a relevant circumstance from which the court may infer consciousness of guilt. 13.The accused's explanation was that he was returning from a night vigil. However, he did not call any witness or produce any evidence to establish that such a vigil existed or that he had attended one. His defence therefore remained a bare denial and did not satisfactorily explain his presence at the scene or his association with the armed group. 14.The court is alive to the fact that possession of a slasher or rungu, standing alone, may not necessarily constitute an offence. However, the circumstances under which the accused was found are crucial. He was found at 2.30 a.m., in the company of a large group of armed men, carrying offensive weapons, and the group dispersed when confronted. These circumstances are inconsistent with any lawful purpose. 15.Although PW2 testified that the accused was known to him from a previous theft case, it is noteworthy that accused did not rebut this evidence of character and previous involvements in criminal activities. The prosecution case stands on the strength of the circumstances surrounding the accused's arrest which go to show the mens rea of accused walking armed at night in the midst of a wave of well known criminal gang known as 32 brothers in the village. 16.Furthermore, the accused admitted to knowing PW2, though he stated that he had a grudge with him for failing to pay him for work done; the same was never raised during cross-examination, hence an afterthought. PW2 testified as to the accused’s character as his village elder. Accused did not dispute the evidence nor challenge the same during cross-examination. It remained a record of the court that the accused is a well-known criminal in the village. His character, in my view, goes to add weight to the circumstances surrounding the commission of this offence. 17.Upon considering the totality of the evidence, I am satisfied that the prosecution established beyond reasonable doubt that the accused was armed in circumstances demonstrating an intention to commit a felony. Count I is therefore proved to the required standard. 18.I accordingly find the accused is found guilty of the offence of preparation to commit a felony contrary to section 308(3) of the Penal Code and find him in conflict with the law pursuant to section 215 of the Criminal Procedure Code. Count II: Possession of Suspected Public Stores 19.The prosecution alleged that the pair of boots recovered from the accused were National Youth Service boots and therefore public stores. 20.However, the investigating officer conceded during cross-examination that the boots did not bear any National Youth Service markings. No report of theft or loss of the boots was produced. No witness from the National Youth Service was called to identify the boots as government property. Further, no evidence was led to establish that the boots had been stolen or unlawfully obtained. 21.The burden rested upon the prosecution to prove that the boots were public stores and that there existed reasonable grounds to suspect that they had been stolen or unlawfully obtained. In the absence of such evidence, the court is unable to conclude that the ingredients of the offence under section 324(2) of the Penal Code were established. 22.Accordingly, I find that Count II was not proved beyond reasonable doubt. 23.The accused is therefore found not guilty of the offence of being in possession of suspected public stores contrary to section 324(2) of the Penal Code and is acquitted on that count under section 215 of the Criminal Procedure Code. 24.Orders accordingly. DATED, SIGNED AND DELIVERED IN KISWAHILI THE LANGUAGE THE ACCUSED STATES TO FULLY UNDERSTAND AT PORT VICTORIA THIS 8TH JULY 2026.HON. ANNE NJERUSRMOn the presence ofHis advocate, Mr. Otieno,The Prosecutor, Mr. Githinji andThe Court Assistant Mr. Masiga