https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/208

Republic v Wafula (Criminal Case E1268 of 2023) [2026] KEMC 208 (KLR) (1 June 2026) (Judgment) Neutral citation: [2026] KEMC 208 (KLR) Republic of Kenya In the Bungoma Law Courts Criminal Case E1268 of 2023 RN Maloba, SPM June 1, 2026 Between Republic Prosecution and Gabriel Simiyu Wafula Accused Judgment 1.By this court’s ruling delivered on 3/6/2025, accused person was acquitted of the main count where he was charged with breaking into a building and committing a felony contrary to section 206(a) of the Penal Code under section 210 of the CPC but placed on his defence case is in respect to the alternative count where he was charged with the neglect to prevent a felony contrary to section 392 of the Penal Code. 2.In the particulars of the alternative count aforementioned, it was alleged by the prosecution that, he committed the said offence on the night of 25th and 26th day of June 2023 at St. Teresa’s Kabula Boys High School where a house breaking and theft incident occurred. It was averred by the prosecution that he failed to prevent theft of eight Lenovo lap tops belonging to the said school. 3.He denied the said charge. 4.Consequently, the case was tried fully whereby both the prosecution and the accused gave evidence in their respective cases. Prosecution’s Case 5.It was the prosecution’s case per the evidence of Wanjala Thomas (PW1), Peter Barasa (PW2), Julius Bukhebi Mabuka(PW3)Asman Sukuta Abdalla(PW4), Isack Ngao(PW5) and CPL Joseph Makhanu( PW6) that the accused was one of the guards who was on duty at the complainant school on the material night. The other guards who were with him on duty that night were PW3 and PW5. 6.According to PW3, he himself was stationed at the main gate, PW5 at the lower boarding section while accused person was at the upper boarding section. They worked well till the following morning when they handed over duty to the day guards who comprised PW2 and another guard called Geoffrey. PW4 was on off duty on the said night. But PW2, who was in charge of guards stated that on the material night, he assigned accused guarding duties at the Computer or ICT Lab. 7.On his part, PW5 stated that, he was assigned to guard the lower section of the school compound which included the Deputy Principal and Principle’s staff quarters, old bus, farm and the Livestock Unit. He confirmed that the night was calm and quiet till the following day when they handed over to duty to the day guards. 8.As the handing over was being done, it was discovered by PW2 that there was a window grill of the Computer Lab which had been cut. PW2 then led all the three night guards to go and view the said window and after that, the school management was informed. These included the Games Master, Boarding Master, the Computer Teacher and Principal his Deputy (PW1). Thereafter, footprints were discovered from the scene leading towards the dormitories where students who were engaged in some school games were being accommodated. The games coincided with half- term. 9.PW6 who was the Investigating officer visited the scene and confirmed occurrence of the incident. 10.Accused was later arrested and charged. The Defence Case 11.He admitted being a guard who was on duty at the complainant school on the material night but denied that he failed to prevent the offence disclosed in count 1. He specifically denied that he was the one guarding the Computer room and explained that his area of assignment comprised the Administration Block, Dormitories, Classrooms and the Posho Mill. He added that the Computer room was behind the dormitories. 12.He further indicated that on the said night, he and his colleagues (they were three guards in total) worked well without any incident till the following morning at 6:00 am when the day guards took over. He then left for home. Later in the day, his supervisor summoned them and briefed them about the incident. Upon going round the Computer Lab with him, they saw a small cut on one of its windows but it was small and not able to let any lap top through. He confirmed that his colleague PW3 was guarding the main gate on the material night. He added that PW5 was the one guarding the lower boarding Section and the Computer Lab. Issues for Determination 13.These are;1.Whether the offence of house breaking and stealing occurred at the complainant’s school as alleged.2.Whether accused was aware of commission of the same.3.Whether accused neglected to prevent commission of the same.4.Whether accused is guilty of offence of neglect to prevent a felony contrary to section 392 of the Penal Code. Determination 14.The court has considered the evidence adduced and weighed against the ingredients of this offence as outlined under section 392 of the Penal Code. The section stipulates this offence in the following terms;“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.”* 15.The court in the case of Ogutu & another v Repuplic (Criminal Appeal E006 of 2022) [2023] KEHC 2034 (KLR) (20 March 2023) (Judgment) per Kiarie Waweru Kiarie J, held concerning ingredients of this offence that;“One very important ingredient of the offence under section 392 of the Penal Code is knowledge that a person designs to commit or is committing a felony. From the facts read no such facts of knowledge were read to the appellants. Indeed, the ingredient of knowledge which is central to the offence under the section was not included in the charge. The appellants were therefore expected to plead to that ingredient.” 16.In a related case of Fredrick Wafula Barasa v Republic [2021] KEHC 972 (KLR), Githua J observed concerning the ingredients of this offence thus;“From my analysis of the evidence on record, I find that though the prosecution managed to prove that a felony namely a robbery was committed on the night in question within the institution in which the appellant and others were employed as security guards, the prosecution failed to adduce evidence to prove that the appellant had prior knowledge of the design to commit the offence or that it was in the process of being committed and failed to take steps to prevent its commission or completion. PW6 and PW7 who had been on duty together with the appellant confirmed that had PW2 not called them, they would not have known that an offence had been committed.” 17.The judge, in the said case wholly agreed with the decision by the late Majanja J in Joseph Muriithi Nyaga & 2 Others V Republic, [2013] eKLR, where he held on proof of this offence thus;“In order to sustain a conviction, the prosecution must prove “knowledge” of the design to commit or commission of the felony. Thus, the test is not akin to one in negligence cases; it is not enough to show that the accused, ‘ought to have known’. But that the person actually knew of the design to commit a felony and failed to prevent it. The fact of knowledge is a question of fact.” 18.In this case, the prosecution merely showed that the offence of house breaking did occur on the material night of between 25th and 26th day of June 2023. The admission by accused person was that they were able to see a small hole on the one of the windows of the Computer Lab the following morning when the incident was discovered after they had handed over guard duties to their day counterparts. That is an express admission of the house breaking on his part. 19.But as to whether some computers were stolen, I do find that, as no inventory or delivery note or purchase receipt to confirm the presence of the lap tops at the Computer Lab was produced, I do find that, there was no sufficient evidence adduced by the prosecution to prove the same. Accused doubted that the small hole he saw was able to let any lap top through and so, he deserves the benefit of the doubt in the circumstances. 20.In terms of his presence in the school compound on the material night and his commission of the offence, the first thing to note is that he also admitted being on duty on that night. He was there with his two colleagues PW3 and PW5. Each has a specific section of the school compound assigned to guard. 21.However, the prosecution fell short of establishing that accused knew or was aware of the design by those who perpetrated the house breaking of Computer Lab to commit the same. As seen from the authorities above, it is not a question of whether accused ought to have known of such a design but of whether, he actually knew of the design to commit a felony but failed to prevent it. Therefore, prior prior knowledge of the design to commit the offence is paramount with respect to proof of this offence. Alternatively, it is to be proved by the prosecution that accused was aware of the commission of the offence but neglected or failed to take steps to prevent its commission or completion. 22.In this case, it highly doubted if accused knew or was aware of active commission of the house breaking on the material night given that no record of his work assignment was produced. Contradictions exist on where he was actually assigned to guard on that material night. Whereas PW3 explained that accused was guarding the upper boarding section, he personally indicated in his defence that he was actually elsewhere. His explanation was that he was assigned to guard the Administration Block, Dormitories, Classrooms and the Posho Mill. On his part, PW5 stated that he was assigned to guard the Principal and Deputy Principal staff quarters, old bus, farm and the Livestock Unit. Only PW2, who was their supervisor stated that, he assigned accused to guard the Computer or ICT Lab on that night. It appears that those on duty were picked places of duty away from the Computer Lab in order to escape any blame regarding the house breaking and the alleged theft as whole. This was a convenient move given the absence of any official record of who was guarding where on the material night. In absence of this and in the face of the stated contradictions, I would extend the benefit of the doubt in favour of accused on his tendered defence. 23.In all criminal cases, the burden of proof lies upon the prosecution. That burden of proof is beyond any reasonable doubt- See Whoolmington v. DPP (1935) AC 462. In this case, the prosecution failed in that duty. 24.Consequently, the court proceeds to acquit accused person under Section 215 of the Criminal Procedure Code on the alternative count of failure to prevent the commission of a felony contrary to section 392 of the Penal Code. DATED & DELIVERED IN OPEN COURT THIS 1ST DAY OF JUNE 2026R.B.N MALOBA(MS)SENIOR PRINCIPAL MAGISTRATEIn the presence of;Prosecutor- Ms. AchiengC/Assistant- Ms. JacintaAccused- in personMs. Wakoli for accused N/A