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MagistrateOtherNot stated in the judgment· [2025] KEMC 53 (KLR)

Republic v Lenaitukuto (Criminal Case E043 of 2025) [2025] KEMC 53 (KLR)

Magistrates' Court
1 April 2025
TST.A. Sitati
1,861 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court acquitted a shop assistant accused of stealing because her alleged confession was recorded by a police constable, which the law does not recognise.

What this practically means

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Executive summary

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The accused, a shop assistant and cleaner employed by the complainant Mohamed Naston, faced a charge of stealing Kshs 37,000 in cash from a shop at Kisima trading centre, Samburu Central, on 20th February 2025. The complainant testified that the cash was kept under the counter and went missing after the accused completed her duties; five days of discreet observation revealed purchases beyond her means, whereupon she allegedly admitted taking the money found on the floor. The investigating officer, a police constable, also testified that she confessed to him. This was a ruling at the close of the prosecution case on whether a prima facie case had been established. The court, citing Ramanlal Trambaklal Bhatt and Republic v Benard Nthiwa Makau, held that no direct evidence existed: no witness saw the theft and no marked currency was recovered. The only evidence linking the accused was the alleged admission, but relying on the Supreme Court's affirmation of section 25A (as amended in 2007), the court held that an admission of guilt has evidential weight only if recorded before a Judge, Magistrate, or police officer of Chief Inspector rank or above. Neither a private citizen nor a constable could lawfully record a confession; the investigation diary showed the suspect was never forwarded to a superior officer, no receipts of the alleged purchases were obtained, and no scene visit was conducted. The alleged admission was therefore rejected as doubtful and carrying no legal weight, leaving no evidence connecting the accused to the crime. The court found she had no case to answer, acquitted her of all charges under section 210 of the Criminal Procedure Code, and set her at liberty, with a right of appeal of 14 days.

Key legal issues

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01

Whether a prima facie case was established on the basis of an alleged confession recorded by a police constable

Holding

No prima facie case; the alleged admission to a constable and a private citizen carries no legal weight, leaving no evidence connecting the accused to the crime

Reasoning

The court applied the Bhatt and Nthiwa Makau definitions of a prima facie case and section 25A of the Evidence Act as quoted by the Supreme Court in Ahmad Abolfathi Mohammed. Since no one saw the theft, no marked currency was recovered, and the alleged confession was recorded only by a constable and a private citizen, it was inadmissible. Investigation failures - no receipts, no superior officer, no scene visit - removed any corroboration.

p. 4

Legal principles established

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  • An admission of criminal liability carries evidential weight only if made before a Judge, Magistrate or police officer of the rank of Chief Inspector and above

Court orders

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  1. 1.Accused acquitted of all charges under section 210 Criminal Procedure Code
  2. 2.Accused set at liberty unless there are other lawful causes for detention

Authorities

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Legislation

  • Penal Codesection 268 as read with section 275
  • Criminal Procedure Codesection 210
  • Statute Law (Miscellaneous Amendments) Act No. 7 of 2007insertion to section 25A

Cases cited (5)

  • Ramanlal Trambaklal Bhatt -versus- Republic
    (1957) EA 332
  • Republic -versus- Benard Nthiwa Makau
    [2019] eKLR
  • Republic V Jagjivan M. Patel & Others
    (1) TLR
  • Republic V Samuel Karanja Kiria
    Cr. Case No.13 Of 2004 Nairobi [2009] eKLR
  • Republic -versus- Ahmad Abolfathi Mohammed & another
    [2019] eKLR
Jurisdiction invoked
Criminal jurisdiction over charge of stealing contrary to section 268 as read with section 275 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, "Republic v Lenaitukuto (Criminal Case E043 of 2025) [2025] KEMC 53 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/53/eng@2025-04-01

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