Republic v Walumbe (Criminal Case E096 of 2026) [2026] KEMC 538 (KLR)
The bottom line
#A Bungoma court ruled that using someone's stolen phone to withdraw M-Pesa money is both theft and unauthorised access to a computer system under Kenyan law.
What this practically means
#Executive summary
#Key legal issues
#Proof of stealing under sections 268 and 275 of the Penal Code
The offence of stealing was proved beyond reasonable doubt. The Accused withdrew money from PW1's M-Pesa account through PW1's SIM card on the night the phone was stolen, proving he stole the phone, and PW1's marked torch was recovered from where the Accused left it for charging; the Accused failed to discharge the shifted evidential burden of explaining possession.
PW2 positively identified the Accused, who was well known to him, as the person who made the withdrawals. The M-Pesa statement corroborated the withdrawals. Possession of the marked torch and the SIM card hours after the theft attracted the doctrine of recent possession; the Accused's alibi was a mere denial and did not rebut the inference.
Unauthorised access contrary to section 14(1) of the Computer Misuse and Cybercrimes Act
The offence was proved: the Accused caused PW1's mobile phone and SIM card (computer systems) to perform M-Pesa transactions by infringing security measures and without PW1's authority, with intent to commit the felony of stealing.
The court held that a mobile phone is a computer system under the Act and that an M-Pesa transaction can only be initiated and completed after accessing the phone and SIM card. There was no evidence of PW1's consent to the withdrawals, so the access was unauthorised and the security measures were infringed.
Duplicity of counts 1 and 2
Counts 1 and 2, both stealing of items belonging to the same complainant in the same transaction, were treated as one count.
The court noted during judgment that the two counts arose in the same transaction and involved the same complainant's property, so good practice required merger rather than separate counts.
The Accused's defence
The defence of a bare denial was dismissed in its entirety.
The Accused gave sworn testimony claiming he was asleep at home, but offered no rebuttal of the possession of the marked torch and the M-Pesa withdrawals shortly after the theft, leaving the prosecution's circumstantial and recent-possession case unchallenged.
Legal principles established
#- For a conviction on stealing, the prosecution must prove that the Accused took the complainant's property with the intention of permanently depriving the complainant of it
- Where an accused is found in possession of recently stolen property and fails to give a reasonable explanation, the evidential burden shifts to the accused and the doctrine of recent possession applies
- A mobile phone is a computer system within the meaning of the Computer Misuse and Cybercrimes Act
- Two counts of stealing of items belonging to the same complainant in the same transaction ought to be merged into one count as a matter of good practice
Court orders
#- 1.The Accused Person is convicted under section 215 of the Criminal Procedure Code of the offence of stealing contrary to section 268 as read with section 275 of the Penal Code (counts 1 and 2 treated as one count)
- 2.The Accused Person is convicted under section 215 of the Criminal Procedure Code of the offence of unauthorized access contrary to section 14(1) of the Computer Misuse and Cybercrimes Act
- Jurisdiction invoked
- Criminal jurisdiction of the magistrates' court under the Penal Code (Cap 63) and the Criminal Procedure Code, prosecuting stealing contrary to sections 268 and 275 of the Penal Code and unauthorized access contrary to section 14(1) of the Computer Misuse and Cybercrimes Act, 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Walumbe (Criminal Case E096 of 2026) [2026] KEMC 538 (KLR)", Case Analysis (2026). Criminal Case No E096 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/538/eng@2026-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.