https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/444

**REPUBLIC OF KENYA** **IN THE MAGISTRATES COURT AT MANDERA** **CRIMINAL CASE NO. E102 OF 2026** REPUBLIC VERSUS ASSAS ADAN LUHOS……….……………………..………………………………...ACCUSED **JUDGMENT** **BACKGROUND OF THE CASE** 1. Mr. Assad Adan was charged in count 1 with the offence of Stealing contrary to Section (268) (1) as read with Section 275 of the Penal Code. The particulars of the offence are that on the 7th April 2026 within Mandera township in Mandera East County within Mandera County he stole a mobile phone make Samsung A06 valued at Kshs 20,000/= property of Ali Hassan Edin. 2. Count 2 the accused was charged with Stealing contrary to Section (268) (1) as read with Section 275 of the Penal Code. The particulars of the offence are that on the on the 7th April 2026 within Mandera township in Mandera East County within Mandera County he stole a mobile phone make Techno Spark 20 valued at Kshs 16,000/= property of Suleiman Mahad Maalim. 3. In Count 3 he was charged with the offence of being unlawfully present in Kenya C/Sec 53(1) of the Kenya Citizenship and Immigration Act. The particular of the offence were that on the 7th April 2026 being an Ethiopian national he was found unlawfully present in Kenya without a valid permit/visa authorizing his stay in Kenya. 4. On the 8th April 2024 the matter came up for plea taking when the accused person denied Count 1 and 2 however he admitted Count 3. The Court deferred sentencing of Count 3 till conclusion of Count 1 and 2. **PROSECUTION CASE** 1. The prosecution called forth four witness. PW 1 was a male adult named Ali Hassan Edin from Bulla Power. He stated that on the 7th April 2026 he woke up and never found his mobile phone. He called the phone but it went unanswered, he learnt that his neghbour too had lost his phone the night before and PW 1 went at reported at Mandera Police Station. 2. PW 1 revealed that the accused was arrested by neighbours and when he went to the station where he found his phone. He clarified that the accused was arrested with his phone and he knew the phone password. PW 1 concluded by marking the phone * PMFI 1 – Samsung A06 phone 1. Cross examined PW 1 confirmed that the accused person stole the phone at night while he was asleep. The accused was caught in the morning however PW 1 admitted he was not present when the accused person was arrested. He affirmed the accused person was arrested with the phone however he never knew him before the incident. 2. PW 2 was a male adult called Suleiman Mahad Maalim from Bulla Township. On the 7th April 2026 he discovered his phone was stolen together with PW1s at night. The accused person got into the house and stole his phone. The next day they found the accused person in the neighbours plot together with the phone. The accused person was subsequently arrested and taken to the station. 3. It was PW2s testimony that his phone was a Techno Spark 20 that had a broken screen and he knew the phone password. He admitted to not knowing the accused person before the theft of his phone. PW2 produced the phone as; * PMFI 2 – Techno Spark 20 1. Cross examined PW 2 gave evidence that the accused person was arrested with the phone in the neighbours plot. 2. The third prosecution witness was Hussein Issack Ismail a police officer from Mandera Police Station. PW 3 corroborated that on the 7th April 2026 he was at border point and he received a call where he was informed that a suspect of theft had been arrested with two mobile phones. He arrested the accused and took him to Mandera Police Station. 3. PW 3 attested that the two exhibits marked as PMFI 1 and 2 were the exhibits in Court. He further confirmed that the person he arrested is the accused person in Court and he never knew him before the arrest. 4. PC James Macharia Njeru No 258210 was called in as PW 4. He stated that he is attached at DCI Mandera and he was the investigating officer in this case. On the 7th April 2026 he was in the office and a report was made *vide* OB 02/7/4/26. It was his testimony that the accused was arrested by members of the public after having stolen from PW 1 and PW 2. 5. The suspect had stolen 2 mobile phones make Techno Spark and Samsung A06. PW 1 and PW 2 both identified the phones in Court and proceeded to both unblock the phones in Court. PW 4 recorded statements and on interview the accused indicated he was of Somali origin however the Somali Authorities denied knowing him. He proceeded and charged the accused person with stealing together with being unlawfully present in Kenya as he had no national identity card. PW 4 closed by producing PMFI 1 and 2 and PEXB 1 and 2 respectively. 6. In cross examination PW 4 confirmed that after arresting the accused person the Somali forces denied that the accused person is a Juba land Military personnel. 7. On the 26th May 2026 the court delivered a ruling where the court ruled that the accused had a case to answer and the accused was placed on his defence. 8. The accused opted to give a sworn statement in his Defence. On the 17th June 2026 the accused person presented his defence. The accused person was the only witness. He stated that the case is a fabrication and the people that arrested him with the stolen phones were not in Court. 9. Cross examined the accused person bore witness that he never had the phones and he was arrested in town near customs area. The investigating officer arrested him and he alleged he had the phones. He admitted to not having a Kenya national identity card. 10. The Court having looked at the evidence. The court considers the following issue for determination; 11. Whether the Prosecution has proven its case beyond reasonable doubt and in particular is the suspect guilty of stealing contrary to Section 268(1) as read with 275 of the Penal Code? **Analysis and Determination** **Whether the Prosecution has proven its case beyond reasonable doubt and in particular is the suspect guilty of stealing contrary to Section 268(1) as read with 275 of the Penal Code?** 1. Section 268 of the penal Code further defines stealing as; *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, any property, is said to steal that thing or property* 1. The Black’s Law dictionary describes stealing as to mean to take (personal property) illegally with the intent of keeping unlawfully. 2. The elements of stealing are set out under Section 268 of the Penal code. One important element in the offence of stealing is to prove that the suspect illegally took the property of another person with the intent of keeping unlawfully and further positive identification of the suspect is key in establishing an offence of stealing. 3. In this case PW 1 stated that he woke up on the morning of 7th April 2026 and he discovered that he did not have his mobile phone. Upon inquiry from PW 2 his neghbour they both discovered that their phones were missing however they got wind that the accused person had been arrested at the neighbours plot with the said phones where they subsequently made police reports. 4. PW 2 in in the same vein confirmed the foregoing and both prosecution witnesses during their examination in chief were able to unlock the respective prosecution witness exhibits presented in Court as having been stolen and found with the accused person. 5. The doctrine of recent possession comes into play in this case. In **Bungoma Civil Appeal No 11 & 12 of 2020, William Masava Iningilo & another v Republic [2021] eKLR**. The court held that; 6. *In our view, 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 person to the other.* 7. PW 3 identified the accused as the person who he arrested and in his possession he had the two prosecution exhibits presented before this Court. 8. The accused person in his defence maintained that the case is a fabrication and he never had the phones; the Court does not believe this line of Defence as the accused person was arrested with the subject exhibits a day after and the prosecution witnesses were able to unlock the phones in open Court. 9. The court hold the view that for an offence of stealing it is the action that matters. The act of the accused person depriving the complaint of his property is what proves the element of stealing. The foregoing was echoed in **Nakuru High Court Criminal Appeal No 126 of 2012 Lowethit Loritim v Republic [2014] eKLR** the court held that; *We hold the view that the appellant’s actions amounted to stealing, irrespective of whether there was Kshs.15,000/=, 15630/= or 15730/= in the wallet, or whether the wallet had no money at all, it is the action of depriving the owner of anything capable of being stolen (including the wallet and sim card) which constitutes an offence, and not the amount of money involved.* 1. The Court is convinced that the Prosecution has proved its case beyond reasonable doubt in both Count 1 and 2. 2. Consequently, the accused person is found to be guilty of the offence of stealing contrary to section 268(1) of the Penal Code as provided under Section 215 of the Criminal Procedure Code in Count 1 and 2. Judgment delivered in open court on the 6th August 2026. …………………………………………. **HON. CORNEL.O. OMONDI** **RESIDENT MAGISTRATE** In the presence of Mr. Kadenyo for the State Accused in person C/A – Shamsa/Abdullahi