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MagistratePartially AllowedCriminal Case (Stealing Stock) contrary to section 278 of the Penal Code, Kwale· [2022] KEMC 36 (KLR)

Director of Public Prosecutions v Mtende (Criminal Case E098 of 2022) [2022] KEMC 36 (KLR)

Chief Magistrate's Court (Magistrates' Court), Kwale
29 September 2022
3,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kwale court convicted a man of stealing cows he was borrowing, confirming that keeping borrowed livestock with no intention of returning it is theft in Kenya.

What this practically means

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Executive summary

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The accused was charged with stealing stock contrary to section 278 of the Penal Code, it being alleged that on 4th January 2022 at Vyogato village, Kinango sub-county, Kwale county, he stole three cows valued at Kshs. 106,000, the property of Bakari Ndurya Mazera. The prosecution called three witnesses. PW 1 testified that he handed the accused 8 cows under a gentlemen's agreement for ploughing and feeding; the same evening only 5 cows were returned, and the accused explained the missing 3 as having strayed with other herds ('mkwato'). The investigating officer (PW 2) testified that the accused sold the cows and bought a motor cycle KMFV 902Z, and PW 3 testified that the cows belonged to him but were in the complainant's possession. The accused, unrepresented and giving an unsworn defence, claimed the charges were fabricated as part of a scheme to extort or take his land, and that he bought the motorbike from savings. The court found PW 1 credible, held that the complainant was a special owner, and inferred from the accused's taking on condition of return, retention of 3 cows and lies that his intent was fraudulent, thus constituting stealing under sections 268 and 278 of the Penal Code. The accused's defence was rejected as an untested afterthought and his documentary evidence undermined his account. The court convicted him under section 215 of the Criminal Procedure Code, issued a show-cause notice for forfeiture of the motorbike under section 389A(1), cancelled his cash bail, and fixed sentencing for 25th October 2022.

Key legal issues

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01

Whether the accused fraudulently stole the three cows

Holding

Yes - the accused took 8 cows on condition of return, returned only 5 and lied about the rest, from which the court inferred fraudulent intent to permanently deprive

Reasoning

The court found PW 1 credible: he gave the accused 8 cows under a gentlemen's agreement for ploughing; 5 were returned the same evening and the accused made no effort to trace the 3 missing cows. Under section 268(2)(a) of the Penal Code, taking with intent permanently to deprive the owner is fraudulent. The accused's explanation of the 'mkwato' phenomenon was rejected as a cover for his scheme.

p. 4
02

Whether the complainant was the owner of the stolen cows

Holding

Yes - the complainant was the special owner of cows belonging to PW 3, having charge and possession of them

Reasoning

PW 3 testified he gave the complainant 5 cows to use for ploughing and milking. The complainant had possession and charge of the cows and described himself as a herdsman. Under the Penal Code a special owner includes any person with a right dependent on holding possession of the thing, so the complainant could be the victim of stealing even though PW 3 was the general owner.

p. 4
03

Credibility of the accused's defence

Holding

The defence was rejected as a fabricated afterthought

Reasoning

The accused blamed the complainant, PW 3 and the OCS of a scheme to extort him, but none of these allegations were put to the prosecution witnesses during cross-examination, depriving them of credence. His documentary evidence (treatment notes dated 6th September 2021) predated the offence by four months, undermining his claim of post-offence employment in Kitale. The court found his entire defence to be a poorly imagined script.

p. 5

Legal principles established

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  • The standard of proof in criminal cases is proof beyond reasonable doubt, not proof beyond a shadow of doubt
  • A person who takes property on condition of return and permanently deprives the owner of part of it steals it; possession confers special ownership
  • Allegations of fabrication raised for the first time in an unsworn defence must be grounded in cross-examination of prosecution witnesses to acquire credence

Court orders

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  1. 1.The accused is found guilty of stealing stock and convicted under section 215 of the Criminal Procedure Code
  2. 2.The court, pursuant to section 389A(1) of the Criminal Procedure Code, shall require the accused person or any other interested person to show cause why motor cycle registration number KMFV 902Z may not be forfeited to the state
  3. 3.The case to be fixed for sentence hearing on October 25, 2022 with involvement of all parties
  4. 4.The accused's cash bail of Ksh. 20,000/= is cancelled and to be refunded to the depositor
  5. 5.The accused informed of his right to appeal to the High Court at Mombasa within 14 days

Authorities

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Legislation

  • Penal Codesection 278
  • Penal Codesection 268(1)
  • Penal Codesection 268(2)(a)
  • Penal Codesection 24(f)
  • Criminal Procedure Codesection 215
  • Criminal Procedure Codesection 389A(1)

Cases cited (1)

  • Miller -v- Minister of Pensions
    [1947] 2 ALL ER 372
Jurisdiction invoked
First-instance criminal jurisdiction over the offence of stealing stock contrary to section 278 of the Penal Code

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, "Director of Public Prosecutions v Mtende (Criminal Case E098 of 2022) [2022] KEMC 36 (KLR)", Case Analysis (2022). Criminal Case (Stealing Stock) contrary to section 278 of the Penal Code, Kwale. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2022/36/eng@2022-09-29

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