https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/112

Republic v Wambua (Criminal Case E1184 of 2021) [2026] KEMC 112 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEMC 112 (KLR) Republic of Kenya In the Makindu Law Courts Criminal Case E1184 of 2021 YA Shikanda, SPM May 7, 2026 Between Republic Prosecution and Nicholus Wambua Accused Judgment The Charge 1.Nicholus Wambua (hereinafter referred to as the accused person) was charged with the offence of dealing in scrap metal without a licence contrary to section 9(1) as read with section 9(2) of the Crap Metal Act. The particulars of the offence are that on 9/12/2021 at Kibwezi Township within Makueni County, the accused person was found unlawfully dealing in scrap metal without a licence. When the plea was taken, the accused person pleaded not guilty, where after the matter was set down for hearing. The Evidence 2.The prosecution case was partly heard by another Magistrate who was subsequently transferred. When the matter was placed before me, it was directed that the same proceeds from where it had reached pursuant to section 200(3) of the Criminal Procedure Code. I then took the testimony of the last prosecution witness. The prosecution called a total of three (3) witnesses in a bid to prove its case against the accused person. PW 1 Catherine Muthini Nzioki testified that she was the Assistant Chief Mikuyuni Sub-location. That on 9/12/2021 she was involved in a multi-agency security operation involving scrap metal dealers. The witness stated that they went to the shop of the accused person and found that he was selling scrap metal. That the accused person did not have a licence to enable him sell scrap metal. Part of the scrap metal was recovered and the accused person was arrested. 3.PW 2 Police Constable Mbwala Calisto testified that he was part of the team that was involved in the operation. His testimony was similar to that of PW 1. He stated that he was the investigating officer. PW 3 Police Sergent Alfred Arisa testified that on the material day, he was also part of the multi-agency team that was involved in the operation. The witness gave evidence that was similar to that of the other prosecution witnesses. He produced a used car engine in evidence, stating that the other recovered items could not be traced at the police station. The Defence Case 4.When the accused person was placed on his defence, he opted to give an unsworn statement without calling any witnesses. The accused person stated that he owned a welding and fabrication workshop at Kibwezi and had a licence for it. He denied dealing in scrap metal. Main Issues for Determination 5.In my view, the main issues for determination are as follows:i.Whether the accused person was found dealing in scrap metal on the material day;ii.If so, whether the accused person had the requisite licence;iii.Whether the prosecution has proven its case against the accused person to the required standard. Analysis and Determination 6.I have carefully considered the evidence on record as well as the law applicable. In my considered view, for the case to be proved against the accused person, the prosecution must have proved the following beyond reasonable doubt:a.That the offence complained of was indeed committed; andb.That the evidence links the accused person to the offence complained of. 7.It is my further opinion that in order to show that the offence complained of was indeed committed, the prosecution must establish the key ingredients of the offence. In order to prove their case, the prosecution must offer credible and irrefutable evidence in support of each element of a crime.Section 9 of the Scrap Metal Act provides as follows:“(1)A person shall not deal in scrap metal, unless that person has a licence issued by the Council and is a member of Scrap Metal Dealers Association.(2)Any person who contravenes subsection (1) commits an offence and is liable on conviction—a.for a first offence to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding three years or both; andb.for a second or subsequent offence to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding five years or both.”Section 2 of the Scrap Metal Act defines the term dealing as follows:“dealing in relation to scrap metal, includes buying or otherwise acquiring, selling or otherwise disposing of scrap metal whether by way of barter, pledge or otherwise.” 8.In my view, the key ingredients of the offence with which the accused person is charged and which the prosecution must prove, are as follows:a.That the accused person was found buying or acquiring or selling or disposing of scrap metal;b.That the accused person did not have a licence issued by the Scrap Metal Council;c.That the accused person was not a member of the Scrap Metal Dealers Association. 9.The particulars of the charge indicate that the accused person was found dealing in scrap metal without a licence. Section 2 of the Scrap Metal Act defines scrap metal as including:a.any old metal, second-hand metal, broken metal, defaced or old metal goods (including machinery and plant), whether wholly or partly manufactured, and any metal which is the property of the Government, or is privately owned, whether ferrous, non-ferrous or ferro-alloyed, but does not include gold, silver or any metals of the platinoid group; andb.used automobile batteries. 10.The prosecution evidence indicates that the accused person was operating a scrap metal shop without a licence. PW 1 stated that the accused person was found selling scrap metals. That the security officers recovered a car engine, railway metal bars, a bicycle and a wheel chair. PW 2 and PW 3 gave similar testimony. If the prosecution evidence is anything to go by, then the items referred to were scrap metal, in accordance with the Act. The prosecution witnesses stated that the accused person was found selling the scrap metal. The evidence shows that he was found alone at the yard or shop. In my view, the term selling is not restricted to the actual act of selling to a particular person. It includes offering or displaying for sell, even if nobody is found buying the items at the time of arrest. 11.The recovered items were marked for identification but only the car engine was produced in evidence. The witness who produced the car engine stated that he could not find the other items. The implication is that there was interference with the recovered items. No explanation was given as to why the other items were missing. In the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR, the Court of Appeal held as follows:“The marking of a document is only for purposes of identification and is not proof of the contents of the document. The reason for marking is that while reading the record, the parties and the court should be able to identify and know which was the document before the witness. The marking of a document for identification has no relation to its proof; a document is not proved merely because it has been marked for identification. Once a document has been marked for identification, it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance to the facts of the case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit, it is not part of the record". 12.In Des Raj Sharma v Reginam [1953] 19 EACA 310, it was held that there is a distinction between exhibits and articles marked for identification; and that the term “exhibit” should be confined to articles which have been formally proved and admitted in evidence. In the Nigerian case of Michael Hausa v The State [1994] 7-8 SCNJ 144, it was held by the Supreme Court that if a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence. In the case of Gerald Munyao Ngaa v Republic [2018] eKLR, the court observed thus:“I have also considered the evidence in respect of the recovery of other stolen items. As pointed out by the appellant counsel and admitted by the respondent’s counsel, the evidence in that respect was full of contradictions. It was said that the appellant led the police to his house in Nakuru where the items were recovered. On the other hand, the complainant says that he saw the items at the police station, while the appellant says that he was forced to sign an inventory. More critically, none of the items were produced in court and positive possession was not proved.” (Emphasis supplied) 13.Similarly, in the case of Moses Macharia Kiarie v Republic [2014] eKLR, the court held as follows:“The rest of the prosecution case appears to be that the Appellant led police officers from Kigumo Police Station to PW2 and PW4 to whom he had allegedly sold some of the stolen items, and from whom the police recovered those stolen items. No police officer from that police station or anywhere else testified. The investigating officer of the case never testified and the alleged stolen items were never produced in evidence as they should have been. There was thus no good evidence of recovery of the stolen items properly linking the Appellant to them. In criminal trials the chain of evidence and sanctity thereof is absolutely important. In the present case a proper chain of evidence is lacking. To begin with, the persons who allegedly saw the Appellant breaking into the complainant’s house never testified, and no reasons were given why they did not. Secondly, the police officers who arrested the Appellant, and whom the Appellant allegedly led to the stolen items, never testified. Again, no reasons were given why they did not testify. Thirdly, the allegedly stolen items that were recovered were never produced in evidence before the trial court. The investigating officer who should have produced them never testified. It is also to be noted that there is no evidence of the complainant’s positive identification as his of the alleged stolen items that were recovered. They were all common household and personal goods readily available to anyone. With all the lacunas highlighted above, it is clear that the offences in count 1 were not proved against the Appellant beyond reasonable doubt. He should have been acquitted.” (Underlining mine) 14.The foregoing reveals the importance of production in evidence of recovered items. Where items allegedly recovered from the accused person are not produced in evidence, there will be no proof of possession of the items by the accused person. In this case, the engine was produced in evidence. The accused person did not deny having been found in possession of the engine block. No inventory was prepared upon recovery of the items from the accused person. It is therefore not clear what was found and recovered from the accused person. Although the accused person did not deny having been found with the engine block or even the other mentioned items, the duty is on the prosecution to prove beyond reasonable doubt that the accused person was dealing in the items as scrap metal. 15.The prosecution must prove its case beyond reasonable doubt. This standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918). 16.Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. 17.I have considered the accused person’s defence. He gave an unsworn statement. In the case of May v Republic [1981] KLR 129, it was held as follows:“An unsworn statement is not, strictly speaking, evidence and the rules of evidence cannot be applied to an unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential value is persuasive rather than evidential. For it to have any value it must be supported by the evidence recorded in the case."It was further held:“With reference to Section 1(h) of the Criminal Evidence Act, 1898, which preserved the right of an accused person in England to make a statement without being sworn, Shaw LJ said:“The section makes a clear distinction between the position where an accused person elects to assume the role of a witness in his defence and the situation where he makes an unsworn statement. In the latter case, he is not a witness, and he does not give evidence what is said in such a statement is not to be altogether brushed aside; but its potential value is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence before the jury, but it may make the jury see the proved facts and the inferences from them in a different light. In as much as it may thus influence the jury’s decision, they should be invited to consider the content of the statement in relation to the whole of the evidence. It is perhaps unnecessary to tell the jury whether or not it is evidence in the strict sense. It is material in the case. It is right, however, that the jury should be told that a statement not sworn to and not tested by cross-examination has less cogency and weight than sworn evidence.” 18.The accused person stated that he operated a welding and fabrication workshop. This is the kind of workshop that would require metal. He denied selling scrap metal. PW 1 admitted in cross-examination by the accused person that the accused person operated a workshop. The prosecution evidence indicates that the items complained of were found in a store made of iron sheets. No photographs of such a store were produced in evidence. It was also stated that there were several metals in the store, which indicated that the accused person was dealing in scrap metal. PW 2 stated that the shop was written “scrap metal dealing.” However, PW 3 stated that the store had no name. 19.It would have been prudent for the arresting officers to cause photographs to be taken at the scene so as to different between a scrap metal store and welding and fabrication workshop. The prosecution case was dented further when the other items allegedly recovered from the accused person disappeared before production in evidence. With the evidence on record, I am unable to hold with certainty that the accused person operated a scrap metal yard and not a welding and fabrication workshop. A used engine block alone cannot convince the court that the accused person was dealing in scrap metal. I have no reason to disregard the accused person’s defence that he was operating a welding and fabrication workshop, and not a scrap metal yard. 20.The prosecution evidence is not cogent. I am able to entertain reasonable doubt in my mind as regards the prosecution case. I am not convinced that the accused person was found dealing in scrap metal. Having found so, it is needless to consider whether the other ingredients have been satisfied. I find that there are loose ends or gaps in the prosecution evidence that would warrant the accused person being left off the hook. The evidence does NOT irresistibly point to the accused person’s guilt. Disposition 21.In view of the foregoing, I find that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Consequently, I make the following orders:a.The accused person is found Not Guilty of the offence of Dealing in scrap metal without a licence contrary to section 9(1) as read with 9(2) of the Scrap Metal Act;b.The accused person is hereby Acquitted in respect of the charge. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 7TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.