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MagistrateDismissedNot stated in the judgment· [2026] KEMC 112 (KLR)

Republic v Wambua (Criminal Case E1184 of 2021) [2026] KEMC 112 (KLR)

Magistrates' Court
7 May 2026
2,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Makindu court acquitted a man charged with unlicensed scrap metal dealing because police failed to produce most recovered items as evidence.

What this practically means

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Executive summary

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Nicholus Wambua was charged with dealing in scrap metal without a licence contrary to section 9(1) as read with section 9(2) of the Scrap Metal Act, particulars being that on 9/12/2021 at Kibwezi Township within Makueni County he was found unlawfully dealing in scrap metal without a licence. He pleaded not guilty. The part-heard trial, earlier partly conducted by a transferred magistrate, continued under section 200(3) of the Criminal Procedure Code. The prosecution called three witnesses: an Assistant Chief and two police officers involved in a multi-agency operation who testified that the accused was found selling scrap metal without a licence, recovering among other things a used car engine, railway metal bars, a bicycle and a wheelchair. The accused gave an unsworn statement denying dealing in scrap metal, asserting he operated a licensed welding and fabrication workshop. The court framed three issues: whether the accused was found dealing in scrap metal, whether he had the requisite licence, and whether the prosecution had proved its case beyond reasonable doubt. It distilled the statutory ingredients of the offence and held that items marked for identification but not produced in evidence are not proof, noting that only the engine was produced and no inventory was prepared; other exhibits disappeared without explanation. The court also found no scene photographs distinguishing a scrap metal store from a welding workshop, and PW1 admitted the accused operated a workshop. Finding the prosecution evidence not cogent and entertainable reasonable doubt, the court acquitted the accused of the charge on 7 May 2026.

Key legal issues

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01

Ingredients of the offence of dealing in scrap metal without a licence

Holding

The prosecution must prove that the accused was buying, acquiring, selling or disposing of scrap metal, that he had no licence from the Scrap Metal Council, and that he was not a member of the Scrap Metal Dealers Association

Reasoning

Section 9(1) of the Scrap Metal Act prohibits dealing in scrap metal without a licence issued by the Council and membership of the Scrap Metal Dealers Association. Section 2 defines 'dealing' broadly to include buying or otherwise acquiring, selling or otherwise disposing of scrap metal whether by barter, pledge or otherwise. From these provisions the court distilled three ingredients which the prosecution had to establish beyond reasonable doubt.

p. 3
02

Effect of failure to produce recovered items in evidence

Holding

Items marked for identification but not produced and exhibited are not part of the evidence, and their non-production leaves gaps in the proof of possession

Reasoning

Only the car engine was produced in evidence; the other recovered items could not be traced and no explanation was given for their disappearance. Relying on Kenneth Nyaga Mwige, Des Raj Sharma, Michael Hausa and Moses Macharia Kiarie, the court held that marking for identification is not proof, and that where recovered items are not produced there is no proof of possession. No inventory was prepared, so it was unclear what was recovered.

p. 4
03

Standard of proof beyond reasonable doubt

Holding

The prosecution must prove its case beyond reasonable doubt; the evidence did not irresistibly point to the accused's guilt, entitling him to an acquittal

Reasoning

The court restated that it is far worse to convict an innocent man than to let a guilty man go free, and that reasonable doubt exists where the court cannot say with moral certainty that a person is guilty. The prosecution evidence was found not cogent: no photographs distinguished the alleged scrap metal store from a welding workshop, and the disappearing exhibits created loose ends. The accused's defence of operating a welding and fabrication workshop was not discredited.

p. 6
04

Evidential value of an unsworn statement

Holding

An unsworn statement has no probative value; its potential value is persuasive rather than evidential

Reasoning

Citing May v Republic, the court observed that an unsworn statement is not strictly evidence and the rules of evidence cannot be applied to it, but it should be considered in relation to the whole of the evidence. The accused's unsworn claim that he ran a welding and fabrication workshop, supported by PW1's admission in cross-examination, was not displaced by the prosecution.

p. 6

Legal principles established

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  • Where items allegedly recovered from an accused person are not produced in evidence, there is no proof of possession of the items by the accused
  • The term 'selling' includes offering or displaying for sale, even if nobody is found buying the items at the time of arrest

Court orders

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  1. 1.The accused person is found Not Guilty of the offence of Dealing in scrap metal without a licence contrary to section 9(1) as read with 9(2) of the Scrap Metal Act
  2. 2.The accused person is hereby Acquitted in respect of the charge
Jurisdiction invoked
Original criminal jurisdiction over the charge of dealing in scrap metal without a licence contrary to section 9(1) as read with section 9(2) of the Scrap Metal Act; part-heard matter continued under section 200(3) of the Criminal Procedure 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 Wambua (Criminal Case E1184 of 2021) [2026] KEMC 112 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/112/eng@2026-05-07

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