Republic v Matheka (Criminal Case E1107 of 2021) [2026] KEMC 129 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the complainants' money was stolen as alleged
- 2.Whether it was the accused person who stole the complainants' money
- 3.Whether the prosecution has proven its case against the accused person to the required standard
Key legal issues
#Whether the complainants' money was stolen as alleged
No – the loss was not proved by cogent evidence; no documentary or business records were produced for either count.
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.
Whether the accused person was linked to the alleged offences
No – the evidence did not link the accused to the offences beyond reasonable doubt.
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.
Whether the prosecution proved its case beyond reasonable doubt
No – the threshold of proof beyond reasonable doubt was not met, and the accused was acquitted on both counts.
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.
Legal principles established
#- 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
#- 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.The accused person is acquitted of both charges
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
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.
Issues in the judgment
#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.
The charge particulars state the offences occurred on 7/1/2019, while the 1st complainant's evidence refers to 7/1/2018.
The case number of the criminal charge is not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.