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MagistrateOtherNot stated in the judgment· [2026] KEMC 572 (KLR)

Republic v Tenge (Criminal Case E438 of 2025) [2026] KEMC 572 (KLR)

Magistrates' Court
30 March 2026
1,729 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Bungoma court convicted a woman of stealing Kshs. 18,500 from a friend's M-Pesa account, confirming that mobile money counts as property capable of being stolen.

What this practically means

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Executive summary

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Mary Nasimiyu Tenge was charged with stealing Kshs. 18,500/= from a Safaricom M-Pesa account belonging to Winnie Nanjala Wakhungu, contrary to section 268 as read with section 275 of the Penal Code, allegedly on 17th March 2025 at Mayanja area in Bungoma South Sub-County. She denied the charge. The prosecution called five witnesses. PW1, the complainant, testified that she lent her SIM card and PIN to the Accused Person, a neighbour and friend, on the same day she was expecting a loan of Kshs. 18,500/= from one Albert Siranjofu. The money was received and withdrawn, and her replacement M-Pesa statement showed the funds gone. PW2 corroborated these events. PW3 testified that while at the Accused Person's home he overheard her directing her husband to send Kshs. 5,000/=, Kshs. 900/= and Kshs. 12,500/= to three recipients, after which she broke the SIM card. PW4 confirmed receiving Kshs. 900/= from the complainant's number. PW5, the investigating officer, produced the M-Pesa statement and investigations diary. The Accused Person gave unsworn testimony merely denying the charge. The court framed one issue: whether the prosecution had proved the offence beyond reasonable doubt. It applied section 268 of the Penal Code and the decision in Robert Onchwari Orina & another v Republic (2021) eKLR, holding that the M-Pesa statement read with the witnesses' testimony proved the disbursements were made while the Accused Person held the SIM card and PIN, and that sending the money to third parties without authority was an overt act of permanently depriving the complainant. The defence was rejected as a mere denial. The Accused Person was convicted under section 215 of the Criminal Procedure Code.

Key legal issues

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01

Ingredients of the offence of stealing under section 268 of the Penal Code

Holding

The prosecution must prove fraudulent taking or conversion, without claim of right, with intent to permanently deprive the owner; money is capable of being stolen

Reasoning

The court set out section 268 of the Penal Code defining stealing and the fraudulent intents including, in the case of money, an intent to use it at the will of the taker even if intending to repay. Relying on Robert Onchwari Orina & another v Republic, it distilled that the prosecution must prove fraudulent dealing with the complainant's property with intent to permanently deprive the owner.

p. 6
02

Whether the Accused Person committed the theft of Kshs. 18,500 from the complainant's M-Pesa account

Holding

Yes. The M-Pesa statement and the testimony of PW1–PW4 proved beyond reasonable doubt that the disbursements were made while the Accused Person had the complainant's SIM card and PIN

Reasoning

PW1 lent her SIM card and PIN to the Accused Person; a loan of Kshs. 18,500 was received and withdrawn within minutes. PW3 overheard the Accused Person directing transfers to Emmanuel Wakhungu, PW4 and Daniel Makata and then breaking the SIM card. PW4 confirmed receiving Kshs. 900/=. These transfers, made without PW1's authority, were an overt act of permanently depriving her of her money.

p. 7
03

Effect of the Accused Person's defence

Holding

The unsworn denial did not displace the prosecution's case

Reasoning

DW1 gave unsworn testimony denying the offence, noting her name did not appear on the M-Pesa statement. The court found this a mere denial that raised no reasonable doubt, and dismissed the defence in its entirety before convicting under section 215 of the Criminal Procedure Code.

p. 8

Legal principles established

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  • For a conviction for stealing, the prosecution must prove the accused took the complainant's property fraudulently, without claim of right, and with intent to permanently deprive the owner of it

Court orders

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  1. 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

Authorities

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Legislation

  • Penal Codesection 268
  • Penal Codesection 275
  • Criminal Procedure Codesection 215

Cases cited (1)

  • Robert Onchwari Orina & another vs Republic
    (2021) eKLR
Jurisdiction invoked
Criminal jurisdiction over charges under section 268 as read with section 275 of the Penal Code, Cap 63, Laws of Kenya

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 Tenge (Criminal Case E438 of 2025) [2026] KEMC 572 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/572/eng@2026-03-30

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