Republic v Tenge (Criminal Case E438 of 2025) [2026] KEMC 572 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Ingredients of the offence of stealing under section 268 of the Penal Code
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
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.
Whether the Accused Person committed the theft of Kshs. 18,500 from the complainant's M-Pesa account
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
PW1 lent her SIM card and PIN to the Accused Person; a loan of Kshs. 18,500 was received and withdrawn within minutes.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.
Effect of the Accused Person's defence
The unsworn denial did not displace the prosecution's case
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.
Legal principles established
#- 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
#- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.