Republic v Juma (Criminal Case E182 of 2025) [2026] KEMC 391 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATE'S COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E182 OF 2025** **REPUBLIC – VS KIZITO OPAMU JUMA** **JUDGMENT** 1. Accused has been charged with the offence of Burglary contrary to section 304(2) of the Penal Code. Particulars are that on the night of 19th and 20th May 2025 at unknown time at Budebu area in Bunyala within Busia County, accused, jointly with others not before the court broke and entered the dwelling house of Mathew Sami Ouma with intent to steal and did steal therein 1 mattress 6x6 flowered, maroon in colour, a sea gas cylinder of 6kgs, 3 plastic chairs, blue n colour, 3 pairs of suit, 2 thermos flasks, one duvet blanket, assorted kitchen utensils, assorted clothes, all valued at Kshs 52,000 properties of Mathew Sami Ouma 2. Accused faced an alternative charge of handling stolen property contrary to section 322(1) (2) of the Penal Code. Particulars are that on the 22nd day of May 2025 at around 1345hrs at Bulagu village, Port Victoria area in Bunyala Sub-County within Busia County, the accused, other than in the course of stealing, retained one 6x6 flowered maroon-coloured mattress, knowing or having reason to believe the same to be stolen property. 3. Accused denied both charges, setting the trial in motion ***Prosecution’s case*** 1. PW1 Henry Anthony Sammy testified that on 20/5/2025 he received a call from his brother, the complainant herein informing him that a neighbor, Benard Ojiambo, had found his house open and requested him to check on the same. on arrival, he states to have found the complainant’s door, metallic in make, vandalized(cut open)with the padlock still intact. He took a picture of the damaged door. He entered the house and found the complainant’s possessions missing, among them 3 plastic chairs, a 6x6 maroon high-density mattress, kitchen utensils such as cups, cooking pots, 2 thermos flasks, and a 6 kg gas cylinder. He reported this to the complainant, who instructed him to report the incident and find a welder to repair the damage to the main door. He spread the word about the break-in, and the following day, a motorcycle rider named James called him and informed him that he had offered someone a ride with a mattress matching the description of the stolen one, who then ferried it to Port Victoria to sell it. The said James led the police to the shop where the suspect attempted to sell the said mattress. The accused was arrested while trying to sell the same and taken into custody. 2. PW2 James Osogo Mudonga, a motorcycle rider, stated that on 21/5/2025, at around 8.30pm, the accused, who is well known to him as his neighbour and by the name Opamo, requested him to ferry him to Port Victoria. The accused was in possession of a reddish 6x6 mattress. He took the accused to a shop in Port Victoria. He could see the accused and the mattress well, since the stop area was well lit by security lights and his motorcycle headlights. He then alerted the village elder, Dennis Ojanji, and informed him of the matter and where he had dropped off the suspect with the suspected stolen mattress. He had heard from villagers of a break-in and theft of a mattress and household items. The complainant, accompanied by police officers, later visited the shop where he had dropped off the accused, and the accused was arrested. He confirmed to the police that it was the accused he had ferried to the said shop with the mattress the previous night. 3. PW3 Mathew Sami stated that he had received a call from his neighbour, one Benard Okoth, on 20/5/2025 informing him that his house had been broken into and household items stolen. He alerted his brother, PW1, to confirm the same, which he did and instructed him to report the same to the police. The metallic door of his house had been broken, windows opened, and his household items stolen. Among those items stolen were a high-density 6x6 mattress, a 6 kg sea gas cylinder, 2 thermos flasks, assorted clothes, some belonging to his wife, others for his children and utensils. On 22nd, he formally reported the matter. Only the mattress was recovered. It is maroon in colour and flowered, purchased at Kshs 8,800. He produced the receipt as Pex no. 1. The items stolen were valued at approximately Kshs 44,200/=. The accused was named by the motorcycle rider as the suspect in possession of the said mattress, having picked him with it approximately 100meters from his house. James is his neighbour. 4. PW4 Rose Wanjala stated that on 21/5/25, the accused came into her home and brought her a mattress, red in colour, big in size, around 7.00pm and requested her for Kshs 2,000. At the time she had no money; she kept the mattress and requested the accused to return later for the same. Later, the accused came to her home in the company of police officers and took away the said mattress. The accused is the one who directed the police to her house. She was also arrested but later released. 5. PW5 Samson Mukana Okongo stated that on 21/5/2025, a man came on a motorcycle and in his possession, he had a maroon flowered mattress and requested Kshs 200 to settle the rider’s costs. The accused did not have the money. He gave him his identity card as security for the money, requested the same, and promised to return and repay the Kshs 200 as he collected his identity card. The Identity card bore the name Kizito. The accused was also well known to him prior to this date. He handed him Kshs 200, and later the accused returned with the Kshs 200 and took back his identity card. Around 9.30 pm that same night, police officers came to his shop in search of the mattress in question. They took him into custody and later released him after he positively identified the accused as the one whom he had seen in possession of the said mattress. 6. PW6 23747 IP Stephen Ghati, the investigating officer, testified that on 20/5/2025, a report of burglary was made at the station by Hillary Sammy on behalf of his brother Mathew Sammy who resided in Mombasa. The report stated that the complainant’s house had been broken into and that household items had been stolen. On 21/5/2025, the complainant himself came to the station and formally reported the theft, confirming the items stolen as one mattress, maroon flowered, 6x in size, 6kgs gas cylinder, 3 blue plastic chairs, 3 pairs of suits and other assorted household items, one duvet, cream in colour, thermos flasks and other utensils worth approximately Kshs 52,000. Around 1500hrs the same day, he visited the scene and took photographs of the damage to the door. At around 7.30 pm, he received intelligence reports that a motorcycle rider had information as to who he had seen with the mattress and where he had ferried the suspect. He was led to the people who attempted to purchase the mattresses and finally, to the final recipient. The accused was signed by a member of the public on 22/5/2025, when he received the alert and arrested him. During interrogation, the accused led him to PW5, to whom he had sold the mattress. The same was recovered in PW5’’s house. PW5 confirmed the accused was the one who had sold her the same. He produced the mattress as Pex no. 1. Sometime in the year 2024, the accused was reported to have stolen some items, but on search nothing was ever recovered. Instead, they recovered illicit alcohol. ***Defence case*** 1. Accused, found with a case to answer, was placed on his defence and testified as Kizito Opamo Juma. That on 5/11/2024 around 5.00 a.m., police raided his house accusing him of having stolen some items. They searched hs house and found nothing. Upon arrival at his uncle’s house, they recovered 100litres of illicit brew and took him into custody. Police demanded a bribe of Kshs 10,00 which he did not have, and later turned him to be their informer in exchange for his release, which he accepted. On 17th May around 6.00 am, a police officer, unknown to him by name, arrested him and escorted him to a shop where he met two people who claimed to implicate him in this case. That the charges against him were therefore untrue and that he did not commit the offences as charged. The officers framed him for this offence. ***Analysis and determination*** 1. Section 304 of the Penal Code, Cap 63 provides:- ***“304 (1) Any person who-*** ***Breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or*** ***Having entered any building, tent or vessel used as human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.*** ***(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years”.*** 1. The ingredients of burglary are that there was a breaking and entering of a dwelling house at night with intent to commit a felony and that the accused participated in that breaking. In the case of ***Ayub Muriithi v Republic [2016] KEHC 4728 (KLR)*** , the court held that *“It is clear from the foregoing that, burglary is committed when a person breaks and enters into any building with intent to commit a felony, and, such breaking has to take place in the night. In this regard, there must be prove that a building is broken into with intent to commit a felony therein or that once a felony has been committed in a building, a person breaks out of such building”.* 1. The prosecution must prove the main charge beyond reasonable doubt; ***see Philip Nzaka Watu v Republic [2006] eKLR*** In ***Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria***, as cited with approval by my senior colleague Hon. Shikanda, SPM in the case of ***Republic v Munyao & another [2026] KEMC 111 (KLR)*** the court emphasized on the phrase proof beyond reasonable doubt, stating: *“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.”* 1. There is no dispute that the complainant's house was broken into. PW1 found the metallic door cut open, while the complainant, PW3, confirmed that numerous household goods had been stolen. The evidence of PW6 equally confirmed the report made to police and the damaged door at the scene. The burglary was therefore proved. 2. The issue now for determination is whether the accused was one of the perpetrators. 3. None of the prosecution witnesses witnessed the burglary. The prosecution therefore relied entirely on circumstantial evidence, particularly the doctrine of recent possession. This doctrine was well espoused in the case of ***Athuman Salim Athuman vs. Republic [2016] eKLR,*** where the Court held that: *“The essence of the doctrine is that when an accused person is found in possession of recently stolen property and is unable to offer any reasonable explanation how be came to be in possession of that property, a presumption of fact arises that he is either the thief or receiver. (See MALINGI V. REPUBLIC (1989) KLR 225 H.C and HASSAN V. REPUBLIC (2005) 2 KLR 151). The circumstances under which the doctrine will apply were considered in ISAAC NG’ANG’A KAHIGA ALIAS PETER NG’ANG’A KAHIGA V. REPUBLIC, CR. APP. NO. 272 of 2005, where this Court stated:“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first that the property was found with the suspect, secondly, that the property is positively the property of the complainant; thirdly that the property was stolen from the complainant and lastly, that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one to the other.*” 1. PW2 James Osogo testified that on the evening of 21st May 2025, barely one day after the burglary, the accused, whom he knew well as his neighbour, hired him to ferry him to Port Victoria while carrying a reddish 6x6 mattress. PW2 had no difficulty identifying the accused because they were neighbours and the place was illuminated by security lights and his motorcycle headlights. After learning of the mattress burglary, he immediately alerted the village elder and later pointed out where he had dropped the accused. 2. PW4 Rose Wanjala equally testified that the accused personally brought the same red mattress to her home seeking Kshs 2,000. She retained the mattress awaiting payment. Significantly, when the accused was arrested, he led police officers back to PW4's home where the mattress was recovered. PW4 had no apparent reason to falsely implicate the accused. 3. PW3 positively identified the recovered mattress as his through its colour, floral design and the purchase receipt which he produced in evidence. The recovery occurred only about one day after the burglary. 4. The evidence of PW2, PW4 and PW3 was mutually reinforcing. Each witness independently placed the accused in possession of the stolen mattress shortly after the burglary. Their evidence remained consistent and was not shaken during cross-examination. 5. The doctrine of recent possession permits the court to infer that an accused is either the thief or a guilty receiver where property recently stolen is found in his possession and he fails to offer a reasonable explanation for such possession. 6. In the present case, the mattress was positively identified as belonging to the complainant; it had been stolen during the burglary; it was recovered approximately one day after the theft; several witnesses independently placed the accused in possession of it; and the accused offered no plausible explanation as to how he came into possession of it. 7. The accused merely alleged that police framed him because he had previously declined to cooperate with them after an unrelated arrest. He produced no evidence to support that allegation. More importantly, his defence does not explain why several independent civilian witnesses, including his own neighbours, consistently testified that he was the person transporting and attempting to dispose of the stolen mattress.I therefore reject the defence as a mere denial. 8. While the doctrine of recent possession raises a strong inference that the accused participated in the theft of the mattress, it does not necessarily establish beyond reasonable doubt that he was among the persons who broke and entered the complainant's dwelling house. The prosecution led no evidence placing him at the scene of the burglary or demonstrating that he participated in the breaking. The prosecution further did not establish the time of the incident to confirm the same occurred at night to meet the threshold of a burglary as described under section 304(2) of the Penal Code. 9. The evidence establishes possession of recently stolen property but falls short of proving the element of breaking and entering required under section 304(2) of the Penal Code. Consequently, I am not satisfied that the offence of burglary has been proved beyond reasonable doubt. ***Alternative Charge*** 1. The evidence overwhelmingly establishes that shortly after the burglary the accused was in possession of the complainant's stolen mattress and was actively attempting to dispose of it. His conduct in seeking buyers and his complete failure to explain his possession irresistibly lead to the conclusion that he knew the mattress to be stolen. 2. The prosecution has therefore proved beyond reasonable doubt the alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code. ***Disposition*** 1. The accused is found Not Guilty of the main charge of burglary contrary to section 304(2) of the Penal Code and is acquitted under section 215 of the Criminal Procedure Code. 2. The accused is found Guilty of the alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code and is convicted accordingly under section 215 of the Criminal Procedure Code. Dated, signed and delivered in Kiswahili, the language the accused states to fully understand at Port Victoria this 29th day of July 2026, in the presence of accused, Mr. Githinji the Prosecutor, Mr Masiga the Court Assistant. **HON. ANNE NJERU** **SENIOR RESIDENT MAGISTRATE**