[2025] KEMC 54 (KLR)

Republic v Wainaina (Criminal Case E2985 of 2022) [2025] KEMC 54 (KLR) (3 April 2025) (Judgment)

Neutral citation: [2025] KEMC 54 (KLR)

Republic of Kenya

In the Nakuru Law Courts

Criminal Case E2985 of 2022

PA Ndege, SPM

April 3, 2025

Between

Republic

Prosecutor

and

Mike Ndonga Wainaina

Accused

Judgment

1. The Accused person herein has been charged with breaking into a building and committing a felony contrary to section 306 of the Penal Code. The Particulars of the offence are that on the31st day of July, 2022 in Nakuru West sub-County, within Nakuru County, jointly with others not before court, he broke and entered into building namely Nest Pub and stole therein 2 TV set, woofer, TV mounting, padlock, till mobile phone and assorted brands of alcoholic drinks all valued at Kshs. 179, 415/- the property of Joseph Ndiga Ndungu. The Accused pleaded not guilty to the count and the case proceeded to trial with the prosecution calling 6 witnesses while the defence had the accused person’s sworn testimony.

Prosecution Case 2. PW1, Joseph Ndinga Ndungu, owns the pub herein. He stated that he was called on the morning of 31/07/2021, and informed that his pub had been broken into. He called his employee, PW2, Judith Achieng Owino, who worked as a waiter, who informed him that she had securely locked the pub the previous night.

3. They confirmed that the locks to the pub had been broken and several items stolen from therein. The landlord of the premises had installed digital camera, CCTV. PW3, Martin Kamau, who had installed the CCTV, was called. He he got the DVR machine that stores the CCTV footage and extracted the relevant footage for the period in question, that is for the morning of 31/07/2022 from 3. 32. 35am to 7. 48am.

4. PW4, CIP Timothy Bett, a forensic analyst from the DCI Headquarters received the footages and reproduced the same. He produced the photographs as PEXH. No. 5A to 5X; while the certificate was produced as PEXH. NO. 6. The CCTV footage showed 2 men break into the pub. That one of them was the accused person herein. That before the breaking in, the persons had purchased some alcohol from the same pub while being served by PW2. That the accused person herein, being one of them, had paid the bill using a mobile phone belonging to the other accomplice.

5. On 07/09/2022, the accused person herein was arrested after the investigating officer, PW6, NO.88363 PC Geoffrey Kiriambaga, had received a tip off that he was playing pool at Rhonda estate. They were however unable to recover any of the stolen items from him.

Defence Case 6. Upon being placed on his defence, the accused person herein concentrated on his arrest. He stated that on 07/09/2022, he found himself being arrested at 10. 00am while at the boda boda stage. He denied having committed the offence herein. He also at first denied knowing PW2, but later admitted while being cross-examined that on the material night, he entered inside the pub herein and was served by PW2. He however denied that he was seen in the CCTV footage herein.

Determination 7. In criminal cases, it is old hat that the standard of proof is beyond reasonable doubt and it was due to this that Mativo, J, as he then was, in Elizabeth Waithiegeni Gatimu vrs Republic [2015] eKLR expressed himself as hereunder:To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and concession, but as a matter of right. An accused person is the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.

8. Lord Denning in Miller vrs Ministry of Pensions, [1947] 2 ALL ER 372 had this to say: -That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

9. On the ingredients, the elements of the offence of breaking into a building and committing a felony as per the definition in section 306(a) of the Penal Code are breaking and entering. In this case, the items that are alleged to have been stolen are 2 TV sets, a woofer, TV mounting, padlock, till mobile phone and assorted brands of alcoholic drinks all valued at Kshs. 179, 415/- from Nest Pub after the breaking herein. Uncontroverted evidence was tendered by the prosecution to prove to the required standard that the pub was broken into and the items stolen. The only issue herein is whether the breaking in and the theft were committed by the accused person. The prosecution’s case over rely on the electronic evidence of the CCTV.

10. Section 78A of the Evidence Act provides that;(1)In any legal proceedings, electronic messages and digital material shall be admissible as evidence.(2)The court shall not deny admissibility of evidence under subsection (1) only on the ground that it is not in its original form.(3)In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to—a.the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;b.the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;c.the manner in which the originator of the electronic and digital evidence was identified; andd.any other relevant factor.(4)Electronic and digital evidence generated by a person in the ordinary course of business, or a copy or printout of or an extract from the electronic and digital evidence certified to be correct by a person in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.

11. In addition, Section 106(B) of the Evidence Act provides that;(1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as “computer output”) shall be deemed to be also a document, if the condition mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.(2)The conditions mentioned in subsection (1), in respect of a computer output, are the following—a.the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer;b.during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;c.throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its content; andd.the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.(3)Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of subsection (2) was regularly performed by computers, whether—a.combination of computers operating in succession over that period; orb.by different computers operating in succession over that period; orc.in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly.(4)In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following—a.identifying the electronic record containing the statement and describing the manner in which it was produced;b.giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;c.dealing with any matters to which conditions mentioned in subsection (2) relate; andd.purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.(5)For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment, whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.

12. The provisions of section 106B aforesaid were interrogated in the case of Republic vrs Barisa Wayu Matriguda [2011] eKLR where a compact disc (CD) was made from CCTV footage, and the court said:The decision in Republic vs. Barisa Wayu Matuguda has been followed in several matters at the High Court. I shall cite only two of them. In William Odhiambo Oduol vs. Independent Electoral & Boundaries Commission & 2 others (2013) eKLR, the issue was admissibility of a video recording done on a Nokia phone, which was then taken to Nairobi and the video recording was then developed to CD. The court noted that the video was recorded, saved in the internal memory of the phone, the phone was connected to a computer using a micro-USB data cable, the file was copied to an empty hard disk, an empty CD was then inserted into the computer CD write RAM, the video file was then written on the CD or VCD using a CD writing application. It was emphasized that it was important to trace the devices for audit purposes. It was held that the certificate has to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, whichever was appropriate. In Nonny Gathoni Njenga & anor vs. Catherine Masitsa & anor (2014) eKLR, the court found that DVDs sought to be relied on were not accompanied by a certificate as required by the Evidence Act. Then there is R. vs. Robson & Harris (1972) 1 WLR 651, where the issue was the admissibility of tape recordings of alleged conversations between the defendants and a prosecution witness. It was held that in considering the question of admissibility the court was required to satisfy itself that what the prosecution alleged to be original tapes were shown, prima facie, to be original by evidence which defined and described the production and the history of the recording upto the moment of production in court.

13. Similarly, in the case of Samwel Kazungu Kambi vrs Nelly Ilongo & 2 Others [2017] eKLR the court said that:21. Sub-section (4) of Section 106B requires a certificate confirming the authenticity of the electronic record. Such a certificate should describe the manner of the production of the record or the particulars of the device. The certificate could also have the signature of the person in charge of the relevant device or the management of the relevant activities.22. The source of the photocopies of the photographs annexed to the affidavit sworn by the Petitioner in support of the Petition was not disclosed. The device used to capture the images was unknown. The person who took the photographs was not named. The person who processed the images was not named. The Petitioner was not an eyewitness to the incident and he could not therefore tell the court that the photographs were a true reflection of the incident he witnessed.

14. In this case, PW5 stated the manner in which he was able to access the CCTV footage and how he was able to take the clips and/or photographs that were produced in court. He produced a certificate and report dated 1st December, 2022. According to the witnesses who testified in court; the CCTV footage was extracted from the DVR machine that stores the footage. Having considered the material on record, it is my finding that the conditions of section 106 B above were satisfied. The certificate is on record in accordance with the Evidence Act and the manner in which the material was extracted and the gazettement of the officer who handled the matter has not been disputed.

15. In this case, however, none of the eye witnesses saw the accused committing the offence in question. Apart from the evidence from the CCTV, the evidence was largely circumstantial. However, proof in criminal cases can either be by direct evidence or circumstantial evidence. When a witness, such as an eyewitness, asserts actual knowledge of a fact, that witness' testimony is direct evidence. On the other hand, evidence of facts and circumstances from which reasonable inferences may be drawn is circumstantial evidence. Therefore, where circumstantial evidence meets the legal threshold, it may well be a basis for finding the accused person culpable of the offence charged. In fact, in Neema Mwandoro Ndurya vrs R [2008] eKLR, the Court of Appeal cited with approval the case of R vrs Taylor Weaver And Donovan (1928) 21 CR. APP. R 20 where the court stated that:Circumstantial evidence is often said to be the best evidence. It is the evidence of surrounding circumstances which by intensified examination is capable of proving a proposition with accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.

16. In this case, as stated above, in the absence of any direct evidence linking the Accused save for the CCTV, this court must rely on the circumstantial evidence if the case against the Accused is to be proved. Whereas it is appreciated that a charge may be sustained based on circumstantial evidence the courts have established certain threshold to be met if a conviction is to be based thereon. In Sawe VRS REP [2003] KLR 364 the Court of Appeal held.In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt; Circumstantial evidence can be a basis of a conviction only if there is no other existing circumstances weakening the chain of circumstances relied on; The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence is on the prosecution. This burden always remains with the prosecution and never shifts to the accused.

17. In R. vrs Kipkering Arap Koske Another [1949] 16 EACA 135, the Court of Appeal for Eastern Africa had this to say:In order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution, and always remains with the prosecution. It is a burden which never shifts to the party accused.

18. In Abanga Alias Onyango vrs Rep CR. A No.32 of 1990 (UR) the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. These are:It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.

19. In Mwangi vrs Republic [1983] KLR 327 Madan, Potter JJA and Chesoni Ag. J. A. held: -In order to draw the inference of the accused’s guilt from circumstantial evidence, there must be no other co -existing circumstances which would weaken or destroy the inference. The circumstantial evidence in this case was unreliable. It was not of a conclusive nature or tendency and should not have been acted on to sustain the conviction and sentence of the accused.

20. Therefore, for this court to find the accused guilty the inculpatory facts must be incompatible with innocence and incapable of explanation upon any other hypothesis than that of guilt. This proposition was well stated in the case of Simon Musoke vrs Republic [1958] EA 715 as thus: ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.’

21. In Teper vrs R [1952] AC at p. 489 the Court had this to say:Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which could weaken or destroy the inference.

22. In this case, the accused was seen at the pub by PW2. PW2 knew him before. The clothes that he wore are said to be the same ones that he was captured with in the CCTV footage. I have considered the evidence by the prosecution and I find that though there was no eye witness who saw him committing the offence, the evidence from PW2 taken together with the evidence from the CCTV footage is so overwhelming and point to his guilt. I thus do hereby enter a finding of guilt and do hereby convict the accused person pursuant to the provision of section 215 of the Criminal Procedure Code of the offence of with breaking into a building and committing a felony contrary to section 306 of the Penal Code.It is so ordered.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT NAKURU THIS…03RD DAY OF APRIL, 2025. ALOYCE-PETER-NDEGESENIOR PRINCIPAL MAGISTRATEDelivered in the presence of:Janet……………………Court InterpreterMacharia……………For the ProsecutionsAccused Person: PresentVictim: N/AMacharia: NPRAIM in Kiswahili: Pleading with the court that is I have been found guilty, the court to take into account the period spent in remand. In addition, the court to consider non-custodial sentence or measures so that I rejoin my family.Accused: I have been in remand for 2 years and 7 months.CT: I have gone through the records herein and it is indeed true that the accused, now a convict, has been in remand detention throughout the trial process herein, i.e. from 14/09/2022, hence a period of 2 years and 7 months. Considering the fact that he is a first-time offender, I do find the period in detention to be sufficient as punishment for the offence herein and consequently do hereby discharge him u/s 35(1) of the Penal Code. He be therefore set at liberty foRthwith unless otherwise lawfully held.R/A 14 days explained.