https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/767

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **CRIMINAL CASE NO. E294 OF 2026** **REPUBLIC** **VERSUS** **PETER CHACHA NYAMONGE………………………………1ST ACCUSED** **JACKSON MARWA MAKUBO………………………………..2ND ACCUSED** **RULING** 1. The accused persons have been charged with the offence of stealing by servant contrary to section 281 of the Penal Code. The particulars are that the two accused persons on diverse dates between 20th and 30th May, 2026, at Kurutyange secondary school, in Kuria West Sub County within Migori County, willfully and unlawfully stole a generator worth Kshs. 150,000/= the property of Kurutyange Secondary School. 2. In count two they have been charged with the offence of neglect to prevent a felony contrary to section 392 of the Penal Code. The particulars are that the two accused persons on diverse dates between 20th and 30th May, 2026, at Kurutyange secondary school, in Kuria West Sub County within Migori County, failed to prevent the commission of a crime while on duty. **The Prosecution Case** 1. The prosecution called three witnesses namely: 2. **JOHNES MARWA SIGORE (PW1)** 3. **FRIDAH GAKII NKONGE (PW2)** 4. **NO. 258763 PC ZIPPORAH KWAMBOKA (PW3)** 5. The prosecution evidence is that PW1 the Principal of Kurutyange secondary school since May 2026. On 1/6/2026 he received information from teacher Moffat that he received information from 2nd accused that the generator was missing. They had a meeting with the accused persons who are school guards. He identified the appointment letter date 14/3/2011 for 2nd accused as PMFI-1 and letter dated 13/2/2024 as PMFI-2 for 1st accused. He also identified the hand over and take over report dated 29/4/2024 as PMFI-3 showing the generator was in school. The 2nd accused told him that he discovered the generator was missing on 30/5/2026. 6. PW1 said that the people who had access to the power house is himself, the bursar and Deputy Principal who have access to his office where the key to the power house is kept. 7. PW2 evidence was that on 2/6/2026 she reported to school at 8:00am and went to the office of PW1 who asked her if she was aware the school generator was missing. She told him she was not aware. The following day they had a meeting and the accused persons said they did not know when the generator was stolen. PW2 told her that the executive Board members will take up the matter. The generator is always at the school power house. She later recorded her statement. 8. PW3 investigated the case, arrested and charged the accused persons. She produced PMFI-1, 2 & 3 as exhibits 1, 2 & 3 respectively. The prosecution then closed its case. **Determination** 1. The burden of proof lies on the prosecution throughout the trial. That burden of proof does not shift to the accused person to prove his innocence. That is the only way fair trial of the accused person can be guaranteed as stipulated in Article 50 (2) of the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution). 2. It follows that an accused person is under no duty to give any evidence in defence to rebut the prosecution’s case. An accused person has the right to remain silent and the court would decide the case on the basis of the evidence adduced, without making any adverse inference against him. 3. However, an accused person’s right to adduce evidence and challenge the evidence adduced against him is guaranteed under Article 50 (2) (k) of the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution), albeit he also enjoys the right not to give any self-incriminating evidence. See Article 50 (2) (l) of the [Constitution](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2010/constitution). 4. Having said so, the standard of proof required in criminal cases is that of beyond reasonable doubt. Nonetheless, that standard is not applicable at this stage where the prosecution is only expected to have established a prima facie case against the accused person to warrant him to be placed on his defence. 5. A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to remain silent. 6. In [**Republic v Abdi Ibrahim Owi**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kehc/2013/2122)**[2013] eKLR**, the court defined a prima facie case as follows: **“‘prima facie’ is a latin word defined by**[**Black’s Law Dictionary**](https://www.amazon.com/Blacks-Dictionary-BLACKS-DICTIONARY-STANDARD/dp/0314151990)**8th Edition as, “sufficient to establish a fact or raise presumption unless disapproved or rebutted”. ‘prima facie’ is defined by the same dictionary as “the establishment of a legally required rebuttable presumption.”** 1. In simple terms, prima facie means the establishment of a rebuttable presumption that an accused person is guilty of the offence he/she is charged with. 2. The question that this court has to deal with and answer at this stage is therefore, whether based on the evidence before this Court, the court after properly directing its mind to the law and the evidence may convict if the accused chose to give no evidence. It was held in [**Ronald Nyaga Kiura v . Republic**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/5030)**[2018] eKLR** that; ***“It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the***[***Criminal Procedure Code***](https://new.kenyalaw.org/akn/ke/act/1930/11)***. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat -v - Republic [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.”*** 1. From the above detailed holding by the court, can this court on the basis of the evidence so far tendered by the Prosecution, and this court properly directing itself to the law and evidence convict if the accused chooses not to give any evidence? The court is however cautioned that at this stage, it should not make definitive findings should it conclude that the accused has a case to answer. 2. Turning to our instant case, the accused persons have been charged under section 281 of the Penal Code in count one which provides as follows: ***“If the offender is a clerk or servant and the thing being stolen is the property of his employer or came into the possession of the offender on the account of his employer, he is liable to imprisonment for*** seven years” 1. In count two they have been charged under Section 392 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81) provides: ***“Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof is guilty of a misdemeanour.”*** 1. In respect of count one there is no direct nor circumstantial evidence linking the accused persons to the offence as charged. There is no evidence showing that there was breakage into the power house where the generator was. PW1 said that the Deputy Principal and Bursar have access to the power house as they have access to his office where the key to the power house is kept. There is no evidence on record showing that the accused persons had access to the said key. It is my considered opinion, that the prosecution has not been able to establish a prima facie case in respect of count one to warrant the accused persons to be placed on their defence. 2. In regard to count two, one very important ingredient of the offence under section 392 of the [Penal Code](https://kenyalaw.org/akn/ke/act/1948/81)is knowledge that a person designs to commit or is committing a felony. From the evidence on record there is no evidence showing that the accused persons had knowledge that a person designed to commit or was committing a felony. Indeed the ingredient of knowledge which is central to the offence under the section was not included in the evidence tendered by the prosecution. Further the particulars of count two does not disclose the crime the accused persons failed to prevent. In respect of count two, I find that a prima facie case has not been established to warrant accused to place on their defence. In the end I find the accused persons not guilty as charged with the offence of neglect to prevent a felony contrary to section 392 of the Penal Code and acquit them under section 210 of the Criminal Procedure Code. **Dated, Signed and Delivered in open Court at Kehancha on this 18th day of August, 2026** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of;** **Mr. Kuntai…….. Prosecution Counsel** **Mr. Enock/Christine…….Court Assistant** **Subject…….….Present** **Interpretation…….English/Kiswahili** **Accused Language ………Kiswahili** **Advocate for accused persons…………Mr. Nyangi present**