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MagistratePartially AllowedNot stated in the judgment (criminal case, Bungoma)· [2026] KEMC 603 (KLR)

Republic v Sifuna (Criminal Case E105 of 2026) [2026] KEMC 603 (KLR)

Magistrates' Court
22 April 2026
TOT. O. Omono
2,031 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court convicted a man of stealing building stones, ruling that loading stolen goods onto a lorry counts as taking them under Kenyan law.

What this practically means

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Executive summary

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In a first-instance criminal trial before the Senior Resident Magistrate's Court at Bungoma, Kevin Sifuna was charged with stealing 39 machine-cut building stones valued at Kshs. 3,120, the property of Christine Sifuna, contrary to section 268 as read with section 275 of the Penal Code. The prosecution called five witnesses. PW1, the complainant, was alerted at night that a lorry was loading stones from her plot; she went to the scene with police, who arrested PW2 (a transport driver) and his loader. PW2 testified that the Accused Person had contracted him to ferry stones from Nambaya and directed him to the plot. PW3 and PW4, neighbours, raised the alarm and identified the loading. The investigating officer summarised the evidence. The Accused gave sworn testimony denying the offence but did not speak to the events of 16th January 2026. The court framed a single issue: whether the prosecution proved beyond reasonable doubt that the Accused stole the stones. Relying on section 268(5) of the Penal Code (a person is not deemed to take a thing unless he moves it or causes it to move - asportation) and the Court of Appeal decision in Harry Amwayi Etemesi v Republic, the court held that loading the complainant's stones onto a lorry under the Accused's instructions constituted asportation and proved animus furandi - the intention to permanently deprive the owner. The Accused's defence was rejected as a mere denial that cast no reasonable doubt on the prosecution's case. He was convicted under section 215 of the Criminal Procedure Code. Judgment was delivered on 22nd April 2026 by T. O. Omono, Senior Resident Magistrate.

Key legal issues

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01

Whether the Accused Person stole the complainant's machine-cut building stones

Holding

Yes - the Accused Person was convicted of stealing contrary to section 268 as read with section 275 of the Penal Code.

Reasoning

The court identified the ingredients of stealing: taking property capable of being stolen with intent to permanently deprive. Section 268(5) requires movement of the thing or causing it to move (asportation). PW2 and his loader, contracted by the Accused, were arrested while loading the complainant's stones onto a lorry; that loading constituted asportation under the Accused's instructions, evidencing animus furandi. The Accused's sworn defence was a mere denial that raised no reasonable doubt.

p. 8

Legal principles established

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  • A person shall not be deemed to take a thing unless he moves the thing or causes it to move (asportation); loading stolen property onto a lorry constitutes sufficient asportation.
  • Asportation of the complainant's property under the Accused's instructions is enough proof of animus furandi/intention to permanently deprive the owner.

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
Jurisdiction invoked
Criminal jurisdiction under the Penal Code (sections 268 and 275) and the Criminal Procedure Code (section 215)

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 Sifuna (Criminal Case E105 of 2026) [2026] KEMC 603 (KLR)", Case Analysis (2026). Not stated in the judgment (criminal case, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/603/eng@2026-04-22

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