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Court of AppealDismissedCriminal Appeal 163 of 2023· [2026] KECA 1717 (KLR)

Maina & 2 others v Republic

Court of Appeal
25 September 2026
PKP. O. KiageRNR. B. NgetichRORadido S. Okiyo
3,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that a theft conviction can stand even when the stolen goods themselves are never produced in court.

What this practically means

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Executive summary

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This is a second appeal in the Court of Appeal against the High Court's judgment of 8 May 2020 (Ongundi, J) which had allowed the appellants' first appeal, set aside their convictions for robbery with violence under section 296(2) of the Penal Code, and substituted convictions for stealing goods in transit contrary to section 279(c) as read with section 20(1) of the Penal Code, with a fine of Kshs 2,500,000 and 15 months' imprisonment in default. The 2nd appellant, a security guard at Kenya Pipeline Pump Station No. 6 at Makindu, challenged the substituted conviction on the grounds that the stolen goods, the receptacle and the vehicle were never produced in evidence, and that the driver, turn boy and occupants of the truck were not called as witnesses. The 3rd appellant filed a memorandum of appeal but neither appeared nor filed submissions. The Court framed two questions of law: whether failure to produce the stolen goods and failure to call certain witnesses were fatal to the conviction. Applying section 361(1) of the Criminal Procedure Code and settled authority (Karani v R, Karingo v R), the Court held it was confined to matters of law and could not disturb the concurrent findings of fact that fuel was unlawfully siphoned on the night of 21/22 October 2017. Relying on Peter Kihia Mwaniki v R, Benjamin Mugo Mwangi v R, Sahali Omar v R and Munene v R, it held that neither omission was fatal to the conviction. The appeal was dismissed. No costs order was made.

Key legal issues

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01

Whether non-production of the stolen goods and receptacle is fatal to a conviction for stealing goods in transit

Holding

Non-production of the stolen goods is not fatal where other sufficient and incriminating evidence exists; doctrines on production of stolen goods in theft apply mutatis mutandis.

Reasoning

The Court noted stealing goods in transit is a species of theft, so standard-of-proof doctrines including production of stolen goods apply mutatis mutandis. Relying on Peter Kihia Mwaniki v R, it held failure to produce the goods was not fatal where more incriminating exhibits were produced and no failure of justice arose from the omission.

p. 4
02

Whether failure to call the driver, turn boy or occupants of the truck vitiates the conviction

Holding

Calling a witness is within the prosecutor's discretion, which the court will not interfere with absent oblique motive; no particular number of witnesses is required.

Reasoning

The Court relied on Benjamin Mugo Mwangi v R on prosecutorial discretion, section 143 of the Evidence Act as restated in Sahali Omar v R, and Munene v R. The superior court had noted the failure to call the truck occupants and interference with investigations, yet found the remaining evidence sufficient; the appellant did not demonstrate the evidence was otherwise insufficient.

p. 6
03

Scope of the Court's jurisdiction on a second appeal under section 361(1) CPC

Holding

The Court considers only matters of law and cannot interfere with concurrent findings of fact unless the courts below considered matters they ought not to have, failed to consider matters they should have, or were plainly wrong.

Reasoning

The Court traced the statutory starting point in section 361(1) CPC and applied Karingo v R and Karani v R. It found the appellant had not remotely suggested the superior court considered matters it ought not to have, failed to consider relevant matters, or was plainly wrong, so the concurrent findings stood.

p. 4

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not interfere with concurrent findings of fact of the two courts below unless based on no evidence or plainly wrong.
  • Failure to produce the stolen goods in evidence is not fatal to a prosecution case where other incriminating evidence exists.
  • The prosecution is not obliged to call a superfluity of witnesses; no particular number of witnesses is required to prove any fact.
  • The elements of stealing goods in transit are: goods of some value stolen; stolen from a vessel, vehicle or place of deposit used for conveyance or custody; and the goods were in transit.

Court orders

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  1. 1.The appeal is dismissed
On appeal from
High Court of Kenya at Makueni
HCCA No. 142 of 2019 (Consolidated with HCCRA Nos 143 and 144 of 2019)
Jurisdiction invoked
Section 361(1) of the Criminal Procedure Code (second appeal on matters of law only)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maina & 2 others v Republic", Case Analysis (2026). Criminal Appeal 163 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.