https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/432

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT OF KENYA AT MALABA** **CRIMINAL CASE NO. E651 OF 2025** **REPUBLIC……………………………………………………………..………..…..PROSECUTOR** VERSUS **PAUL WEKESA…..….………………………….……………..….……....ACCUSED PERSON** **JUDGMENT.** **Introduction and Evidence** 1. The accused person took plea on 29th December 2025 on the charge of Preparation to Commit a Felony contrary to section 308(1) & (2) of the penal code. 2. The particulars are that the accused person on the 27th day of December 2025 at legio maria area in Malaba Township, Teso North Sub-County within Busia County was found in possession of a knife and a white manila sack inside a carrier bag in circumstances that indicate that he was armed to commit a felony namely stealing. 3. The accused person pleaded not guilty to the charges and was admitted to Bond terms of Kshs. 80,000/= with surety of similar amount. 4. The matter was fixed for hearing and the prosecution called a total of three witnesses. 5. PW1 was one PC Erick Warambo from Malaba Police Station who testified that on 27th December 2025 at about 0300hours while he and fellow officers were on patrol, they met a man who was coming towards them and who on seeing the light of the motor cycle they had boarded branched to his left. They managed to get to him and grabbed him and conducted a quick search. That lejio maria area is not a secure area and they were able to recover a knife hidden inside his trouser. That upon further interrogation the accused person informed them that he was from Uganda and that the knife was for work. That the accused person did not disclose the nature of work. They took him to the police station and the accused person was later arraigned in court with the instant offence. 6. On cross-examination he testified that the accused person did not resist arrest and he was not intoxicated. He had a phone and earphones and when he saw them he took a left turn. A search was conducted and a knife was recovered which shows that he was preparing to commit a felony. 7. There was no re-examination for this witness. 8. PW2 was one PC Wycliffe Barasa of Malaba Police station who with fellow officers was on patrol on the night of 27th November 2025 when they spotted someone and who on seeing them diverted to the right side. They were able to apprehend him and on carrying out a search he had a manilla sack, a carrier bag and a knife which he had hidden inside his trousers. He was interrogated and told the officers that he was from Uganda heading to Korisai to cut grass. That he produced an ID and informed them that he was from Kimilili yet the ID indicated that he was from Bungoma. That they took him to Malaba Police Station. 9. On cross-examination he testified that it was 0300hours and the accused person had earphones. That the accused person branched to his left which was on the right-hand side of the officers. That the accused person was interrogated as to why he had hidden the knife. That he told them that he was going to cut grass and noting that it was 0300hours they did not believe him. 10. PW3 was one CPL Erick Nyaragi who took over the matter from one Sgt Richard Kibai and who had since been transferred and at the time of hearing was on annual leave. He testified that the accused was arrested by PC Warambo and PC Barasa (PW1 and PW2) respectively. That the accused person was armed with a knife in his trousers and which he could not give a good reason for being armed in such a manner. He was remanded at Malaba Police Station. Statements were recorded, exhibits preserved and considering the time that the accused person was arrested and the crime trend at Lejio Maria area, the accused person was arraigned in court. That at the time of his arraignment he was a liason officer and produced the knife as PEXH1 and informed the court that as for the sacks, their exhibit store was exposed to bad weather and were damaged. There was however an inventory which showed that the items were received and which he produced as PEXH2. 11. On cross-examination he testified that some of the exhibits were damaged due to heavy rainfall which in turn damaged their exhibit store. That the accused person was arrested at 0300hours not 0428hours. That he understands the crime trend in Malaba. That he could not ascertain whether the accused person had any previous record. 12. There was no re-examination for this witness and this marked close of the prosecution’s case. Pursuant to a ruling delivered on 21st May 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 13. He testified that on the date of his arrest he was going to the farm at 0428hours where he was to work until 0600hours. That he had planted some tomatoes and was going to cut some bananas. That he had a knife, manilla sack and a carrier bag. That he was to do staking of tomatoes by putting the carrier bag and immersing it in water and the manilla sack was for carrying food. That he was not planning to steal at all and he did not know what the case was about. 14. On cross-examination he testified that he lives in Uganda but has a Kenyan ID. That he had leased a shamba at Korisai for Kshs. 3,000/= where he had planted tomatoes but he was unable to avail the lessor. That after leaving the farm he was to assist a Ugandan lady who he did not know whether the lady knew that he was currently in remand. That the knife was to cut bananas. That if he was able to call witnesses he would have. That he was not given an adequate opportunity to explain himself at the police station and was denied a mobile phone by welfare officers in remand. 15. This marked close of the Defense case and the matter was reserved for judgment. **Analysis and Determination** ***Preparation to Commit a felony*** 1. **Section 308(1) & (2) of the Penal Code** sets out the offence herein in the following terms; ***(1)Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.*** ***(2)Any person who, when not at his place of abode, has with him any article for use in the course of or in connexion with any burglary, theft or cheating is guilty of a felony, and where any person is charged with an offence under this subsection proof that he had with him any article made or adapted for use in committing a burglary, theft or cheating shall be evidence that he had it with him for such use.*** 1. The ingredients of the offence herein were distilled by the Court of Appeal in **Manuel Legasiani & 3 others v Republic [2000] eKLR** when the court rendered itself thus; ***“The word 'Preparation' is not a term of art. In its ordinary meaning it means “the act or an instance of preparing” or “the process of being prepared”. This is the meaning ascribed to the word “Preparation” in the Concise Oxford Dictionary, Eighth Edition. To prove the offence in question some overt act, to show that a felony was about to be committed, has to be shown. Mere possession of a fire-arm not coupled with such an overt act is not an offence under section 308(1) of the Penal Code.” (Emphasis added).*** 1. Similarly, the High Court in setting out the ingredients of this offence in **David Ndiema Moikut v Republic [2019] eKLR** stated thus: ***It must be shown that the appellant had put in motion his intention by making preparations to commit the offence. The prosecution must establish that the appellant made the attempt to put into effect his intention. This means that the accused begins to carry out his intention to commit the offence in a way suitable to bring about what he intends to achieve. (Emphasis added)*** 1. On what constitutes ‘preparation’, the term was defined in **P v Murray (14 Cal. 159)** where it was held that: ***“Preparation consists in devising or arranging the means or measures for the commission of the offence; the attempt is the direct movement toward the commission after the preparations are made.”*** 1. It is not in dispute that the accused person was found at Legio Maria area while in possession of a knife, a manila sack, a carrier bag and earphones with a phone. The prosecution witnesses testified that upon being stopped, the accused person initially failed to explain his presence in the area and later stated that he had intended to cut grass. In his defence, the accused maintained that he had travelled from Uganda and was on his way to Korisai where he had leased land on which he had planted tomatoes and wanted to cut some bananas. 2. The prosecution through its witnesses urged the court to infer criminal intent from the time of the night, the accused’s possession of the knife and sack, the fact that the area was prone to crime and his inconsistent explanation. However, while these circumstances may reasonably arouse suspicion, suspicion alone, however strong cannot found a conviction. The prosecution must establish by cogent evidence that the accused had embarked upon acts manifesting an intention to commit a particular felony. 3. In the present case, no evidence was adduced that the accused person attempted to break into any premises, tampered with any property, targeted any identifiable victim or engaged in any overt act pointing irresistibly to the commission of theft or any other felony. The knife though capable of being used unlawfully was equally capable of innocent use in farming activities. Similarly, a manila sack and carrier bag are ordinary household items whose possession is not without more indicative of criminal intent. 4. In the absence of an overt act pointing to the aspect of preparation as can be discerned from the authorities and statutory provisions cited at paragraphs 16 to 19 of this judgment, it is the finding of the court that the prosecution failed to prove its case to the required threshold of beyond reasonable doubt. Accordingly, the accused person is acquitted of the offence of preparation to commit a felony contrary to section 308(1) & (2) 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 6TH DAY OF AUGUST, 2026.** In the Presence of Paul Wekesa- Accused Person and Mr. T. Rotich Prosecution Counsel Court Assistant: Paul Otieno **A.Z. OGANGE** **RESIDENT MAGISTRATE** 06.08.2026