Republic v Kong’ani (Criminal Case E309 of 2025) [2025] KEMC 439 (KLR)

The court set out the statutory ingredients: breaking any part of a building listed in paragraphs (a) to (d), including a building licensed for sale of intoxicating liquor, and committing a felony therein. Relying on Michael Maundu Wambua v Republic, it held that breaking need not cause damage; unauthorized access suffices. PW1 and PW2's evidence of damaged padlocks and stolen items established the elements.

No witness saw the accused break in; the case rested on recent possession. Citing Isaac Ng’ang’a Kahiga & another v Republic, the court required proof of possession, ownership, theft and recency. Recoveries were made from the accused's home, items were positively identified, and the accused failed to discharge the shifted evidential burden of explaining his possession, so he was the perpetrator of the main charge.

The court accepted it was desirable to call Mama Prisca, whose tip led to the recoveries, but held the prosecution is only bound to call enough witnesses to prove its case beyond reasonable doubt. An adverse inference arises only where a key witness is omitted and the remaining evidence is barely adequate. Here the evidence, even without her testimony, was overwhelming.

Applying the substantive test in Nyamai Musyoka v Republic, a charge is fatally defective only if the defect goes to the root of the charge or distorts it so the accused cannot understand it. The accused knew he faced a charge of breaking in and stealing; the size error neither embarrassed nor prejudiced him and was among curable errors under section 382 CPC.

The accused gave sworn testimony denying the offences and asserting no items were recovered from his house, contradicting the prosecution evidence. The court found the bare denial did not displace the prosecution's evidence and dismissed the defence in its entirety for being a mere denial.