Republic v Wambua (Criminal Case E1184 of 2021) [2026] KEMC 112 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ingredients of the offence of dealing in scrap metal without a licence
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
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.
Effect of failure to produce recovered items in evidence
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
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.
Standard of proof beyond reasonable doubt
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
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.
Evidential value of an unsworn statement
An unsworn statement has no probative value; its potential value is persuasive rather than evidential
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.