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MagistrateDismissedNot stated in the judgment

Republic v Matheka (Criminal Case E1107 of 2021) [2026] KEMC 129 (KLR)

Magistrates' Court (Criminal)
28 May 2026
2,023 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Makindu court acquitted a man of stealing over Ksh. 296,000 because prosecutors offered only spoken testimony, no documents or proper investigation.

What this practically means

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Executive summary

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The accused, Ballack Matheka, faced two counts of Stealing contrary to section 268(1) as read with section 275 of the Penal Code: allegedly stealing Ksh. 229,000/= belonging to Beatrice Wambui and Ksh. 67,290/= belonging to Anthony Ngatia Maina on 7/1/2019 at Kibwezi town. The prosecution called two witnesses. PW1 testified she gave the accused cash to deposit via his Mpesa account, after which he disappeared; PW2, a police officer running an Mpesa agency, testified that the accused was his employee on duty, and that a phone reconciliation revealed a deficit. The prosecution case was largely heard by a transferred magistrate and no further witnesses were called. The accused, in an unsworn-style brief sworn defence, denied presence at Kibwezi on the material date and denied the employment relationship. The court framed three issues: whether the money was stolen, whether the accused stole it, and whether the case was proved beyond reasonable doubt. It found no documentary evidence of the cash handover, no proof of the employment, no produced reconciliation records or business records, and no testimony from the investigating officer, terming the investigations extremely shoddy or non-existent. Relying on the standard of proof beyond reasonable doubt and the principle that suspicion cannot substitute for evidence, the court found the case not proved and acquitted the accused on both counts on 28 May 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the complainants' money was stolen as alleged
  2. 2.Whether it was the accused person who stole the complainants' money
  3. 3.Whether the prosecution has proven its case against the accused person to the required standard

Key legal issues

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01

Whether the complainants' money was stolen as alleged

Holding

No – the loss was not proved by cogent evidence; no documentary or business records were produced for either count.

Reasoning

For count one, the only evidence was the 1st complainant's word of mouth that she gave the accused Ksh. 229,000/= with no acknowledgment of receipt. For count two, the reconciliation showing a deficit of Ksh. 67,290/= was never produced, and no records proved the Mpesa agency or the loss. The court held that mere oral testimony was insufficient for proof of such transactions.

p. 4
02

Whether the accused person was linked to the alleged offences

Holding

No – the evidence did not link the accused to the offences beyond reasonable doubt.

Reasoning

The accused denied being present at Kibwezi on 7/1/2019 and denied the complainants were his employers. No records proved the alleged employment, and the investigating officer was not called, so the basis of the arrest was unknown. The court found the evidence left room for assumption and amounted to mere suspicion, which cannot found a conviction.

p. 4
03

Whether the prosecution proved its case beyond reasonable doubt

Holding

No – the threshold of proof beyond reasonable doubt was not met, and the accused was acquitted on both counts.

Reasoning

The court restated the standard of proof beyond reasonable doubt, citing comparative and English authority, and held that a reasonable doubt exists where the court cannot say with moral certainty that a person is guilty. After analysing the evidence, it found the prosecution case fell short of the standard and resolved the doubt in the accused's favour.

p. 4

Legal principles established

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  • Suspicion, however strong, cannot provide a basis for inferring guilt which must be proved by evidence.
  • The prosecution bears the duty of proving the charge against the accused beyond reasonable doubt; the accused has no duty to prove innocence.
  • A reasonable doubt must be resolved in favour of the accused person.

Court orders

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  1. 1.The accused person is found not guilty of the offence of Stealing contrary to section 275 of the Penal Code in respect of both counts
  2. 2.The accused person is acquitted of both charges

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y. A. ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
First-instance criminal trial for the offence of Stealing contrary to section 268(1) as read with section 275 of the Penal Code

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

1. The accused person is found not guilty of the offence of Stealing contrary to section 275 of the Penal code in respect of both counts; 2. As the glove does not fit, I must, as I hereby do, acquit the accused person of both charges accordingly.
p. 5Final orders – acquittal
Suspicion, however grave, cannot form a basis for conviction. The evidence does not irresistibly point to the accused person's guilt to the exclusion of all others or at all.
p. 4Suspicion and standard of proof
The accused person was not obliged to adduce evidence to prove his allegations. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt.
p. 4Burden of proof on prosecution
In my view, this is not the kind of evidence where mere oral testimony would suffice. Either the investigations done were extremely shoddy or no investigations were conducted in this matter.
p. 4Quality of investigation and need for documentary evidence

Issues in the judgment

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minor

The judgment is dated 28 May 2026, which appears to be an internal inconsistency given the 2019 offences and 2021 arrest, but the date is used as printed.

minor

The charge particulars state the offences occurred on 7/1/2019, while the 1st complainant's evidence refers to 7/1/2018.

minor

The case number of the criminal charge is not stated anywhere in the judgment.

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 Matheka (Criminal Case E1107 of 2021) [2026] KEMC 129 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/129/eng@2026-05-28

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