Republic v Makumi & another (Criminal Case E500 of 2025) [2026] KEMC 510 (KLR)
The bottom line
#Two theft suspects walked free because police searched their homes without a warrant and the stolen phone and money were never found in their hands.
What this practically means
#Executive summary
#Key legal issues
#Whether the prosecution established a prima facie case of stealing against the accused persons
No. The final critical element linking the accused persons to the offence was not proved; the evidence as to stealing was insufficient and both accused were acquitted.
The court analysed the elements of stealing under Sections 268 and 275 of the Penal Code: taking, capability of being stolen, fraudulent taking without claim of right, and taking by the accused. The first three elements were arguably made out, but the identification element failed: neither accused was found with the phone, neither received the stolen money, the complainant was intoxicated and could not identify the thieves, and the search and recovery of exhibits were procedurally flawed.
Admissibility and reliability of items recovered during the search of the 2nd accused's house
The search was illegal, having been conducted without a court order or search warrant, and the exhibits' recovery was compromised by conflicting witness accounts and improperly completed inventory forms.
PW2 admitted he did not enter the 2nd accused's house while the IO said he entered with colleagues, leaving evidentiary gaps. The inventories were not duly filled as to date, time, location and officer, and the IO was uncertain whether he explained the contents in a language the accused understood, casting doubt on whether they knew what they signed. The court held an IO must produce a search warrant before searching premises.
Whether the court could convict on a lesser offence under the doctrine of recent possession
No. Neither the money nor the phone was found in the possession of either accused, so the presumption under the doctrine could not arise and the alternative count could not hold.
Although there was no alternative count of handling stolen property, the court considered Section 179 CPC and the doctrine of recent possession as set out in Chaama Hassan Hasa v Republic. The doctrine applies only where recently stolen property is found with the accused. Here cross-examination confirmed the money went to third-party numbers and the phone was not recovered from either accused, so the doctrine was inapplicable.
Legal principles established
#- A prima facie case is established where the evidence adduced by the prosecution is sufficient for the court to return a guilty verdict if no other explanation is offered by the accused.
- Reasons for a ruling on case to answer need only be given where a submission of no case to answer is upheld and the accused is to be acquitted.
- The doctrine of recent possession presumes an accused found in possession of recently stolen goods who cannot explain the possession is the thief or a handler; it does not apply where the stolen property is not found in the accused's possession.
- Section 179 CPC empowers a court to convict an accused of a minor offence not charged where proved facts reduce or partially establish it.
Court orders
#- 1.Both accused persons acquitted of the charge of stealing contrary to Section 268 as read with Section 275 of the Penal Code at the close of the prosecution case
- 2.The alternative (lesser) count consideration under the doctrine of recent possession/Section 179 CPC fails and cannot hold
- Jurisdiction invoked
- Criminal jurisdiction under the Criminal Procedure Code (Sections 211, 306) and the Penal Code (Sections 267, 268, 275); Section 179 CPC on conviction of minor offences
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Makumi & another (Criminal Case E500 of 2025) [2026] KEMC 510 (KLR)", Case Analysis (2026). Not stated in the judgment (Chuka Law Courts original charge). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/510/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.