Republic v Vitalis (Criminal Case E508 of 2025) [2026] KEMC 274 (KLR) (9 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E508 OF 2025** **REPUBLIC………………………………………………………..………..…..PROSECUTOR** VERSUS **OMOKOL VITALIS………………….….……………………………………….... ACCUSED** **JUDGMENT.** **Introduction and Evidence** 1. The accused person took plea on 26th September 2025 on the charge of Having Suspected Stolen property contrary to section 323 of the Penal Code. The particulars are that the accused person on 25th September 2025 at Kimasat village Amagoro location in Teso North Sub-County within Busia County having been detained by no. 218554 CPL Richard Kibai as a result of exercise of powers conferred by section 26 of the Criminal Procedure Code had in his possession two rolls of fibre wires black in color reasonably suspected to have been stolen or unlawfully obtained. 2. The accused person pleaded guilty to the charges and informed the court that he was given the wires by someone who told him that they were electric wires. A plea of not guilty was entered and the matter was set down for pre-trial and pre-bail report. 3. On 7th October 2025, the accused person requested to have charges read to him afresh and once again pleaded guilty to the charges and explained that the wires were sold to him by a trailer driver and he did not know that they were stolen. A plea of not guilty was once again entered and directions given on compliance of the initial orders of filing of a social enquiry report. 4. He maintained his desire to change plea on 16th October 2025 and 27th October 2025 when the final plea of not guilty was entered and the accused person was admitted to cash bail of Kshs. 5,000/= and alternative bond terms of Kshs. 30,000/= with surety of similar amount. The matter was set down for hearing and the prosecution called a total of three witnesses. 5. PW1 was one Dan Emusugut who testified that on 25th September 2025 at around 0900hours he was in Amagoro when he heard noise from a crowd which prompted him to move closer to the scene. The crowd had surrounded the accused person who he knew as “Mololo”. It was alleged he had stolen some chicken belonging to a woman he referred to as grandmother Were whom he had gone to visit before the items disappeared. The crowd went to ransack his house and recovered other items including long range of fibre wires and on enquiry he gave two conflicting accounts on where he got them. The first account was that he got them from his friend a long-distance driver. He also stated that he had been given the wires by a friend for temporary storage. Officers from Amagoro Patrol Base arrived at the scene and arrested the accused person. 6. On cross-examination he testified that he knew the name “Mololo” but did not know the bearer of the name. That it has been a name mentioned severally in security forums due to complains of him being a thief. That he could neither confirm nor deny whether he was thief or not. 7. There was no re-examination for this witness. 8. PW2 was one CPL Cynthia Mongiri the arresting officer who testified that on 25th September 2025 while at Amagoro Patrol Base she and fellow officers were informed of a crowd which wanted to attack a suspected thief. They rushed to the scene and found the accused person alias “Mololo” in the middle of the crowd. A search was conducted in his house and fibre wires were recovered. On interrogation, the accused person informed the officers that he got the wires from a truck driver. He was placed in police custody and arraigned in court to face the charges herein. 9. On cross-examination he testified that officers rushed to the scene to rescue him but he equally did not give a sufficient explanation as to where he got the wires from and failed to prove ownership. 10. There was no re-examination for this witness. 11. PW3 was one Sgt Richard Kibai, the investigating officer who testified that on 25th September 2025 at 1000hours while at work with fellow officers they received information of a suspect who had been surrounded by a crowd within Amagoro area and rushed to the scene. There were allegations that the suspect had stolen from an elderly woman. A search was conducted in his house where fibre wires were recovered. He was unable to explain how he got the wires and was placed in police custody and arraigned before this court to face charges. 12. On cross-examination he testified that there was no complain lodged regarding the wires but the accused person could not ascertain where he got them from or their ownership. 13. In re-examination he testified that the accused person was given an opportunity to produce the owner of the wires but failed to do so. 14. This marked close of the prosecution’s case and pursuant to a ruling delivered on 26th February 2026 the accused person was placed on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 15. In defence, he told the court that he did not have fibre wires as per the charge sheet and no one from his neighborhood testified to having seen the wires being recovered from his house. That there was no complainant in court over the loss of the wires. 16. There was no cross-examination by the prosecution. Upon being examined by the court over his earlier sentiments at the point of plea taking, he told the court that he was aware of what he had said regarding possession of fibre wires but maintained that he was not found in possession of the said wires. 17. This marked close of the defense case and the matter was reserved for judgment on 9th July 2026. **Analysis and Determination** 1. In this matter the record shows that the accused person initially pleaded guilty on 26th September 2025, 7th October 2025, 16th October 2025 and 27th October 2025. However, upon offering explanations that he obtained the fibre wires either from a truck driver or from a friend, the court entered pleas of not guilty and the matter proceeded to full hearing. 2. PW1, PW2 and PW3 gave consistent evidence that the accused was apprehended by members of the public on allegations of having stolen a solar light and a chicken belonging to an elderly woman. Following this confrontation, a search was conducted in his house during which fibre wires were recovered. The prosecution witnesses remained consistent on these material aspects of the case and their evidence was not shaken during cross examination. 3. Significantly, upon recovery of the wires, the accused person gave inconsistent explanations as to their ownership. At one point, he stated that the wires belonged to a truck driver, while another he claimed that they belonged to a friend who had left them with him for temporary storage. These inconsistent accounts are indicative of a person unable to give a plausible and truthful explanation as to his possession of the property. 4. In his defence, the accused person departed from his earlier explanations and denied that any wires were recovered from his house. When cross-examined on his earlier statements, he acknowledged having made them but nevertheless maintained that no wires had been recovered from his house. This contradiction materially undermines the credibility of his defence. 5. The accused person also did not dispute that he was known by the alias “Mololo” as testified by the prosecution witnesses, thereby lending credence to their account and events leading to his arrest. 6. Having carefully considered the evidence on record, it is the court’s finding that the prosecution witnesses gave consistent and mutually corroborative evidence on the recovery of the fibre wires from the accused person’s house. The accused person’s contradictory explanations, coupled with subsequent denial of the recovery, failed to cast any reasonable doubt on the prosecution’s case. 7. Having herein opined, the accused person is convicted of the charge of Having Suspected Stolen Property contrary to section 323 of the Penal Code under Section 215 of the Criminal Procedure Code. **JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 9TH DAY OF JULY, 2026.** In the Presence of Omokol Vitalis- the Accused Person Mr. T. Rotich- Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 09.07.2026