Republic v Omuse & another (Criminal Case E1386 of 2025) [2026] KEMC 614 (KLR)
The bottom line
#Two men who fled a police checkpoint at 4am carrying a calf were convicted in absentia of conveying suspected stolen goods in Bungoma.
What this practically means
#Executive summary
#Key legal issues
#Whether the charge under section 9(1) of the Stock and Produce Theft Act disclosed the offence actually proved
The section creates only illegal possession of stock, not conveying stolen stock; the charge as framed did not match the evidence, which disclosed conveying suspected stolen goods under section 323 of the Penal Code.
The court read section 9(1) of the Stock and Produce Theft Act and found that it penalises illegal possession of stock reasonably suspected of being stolen, not the act of conveying stock. The particulars of the charge, read with the evidence, showed the prosecution actually set out to prove conveying stolen goods under section 323 of the Penal Code, a cognate offence.
Whether conviction could lie on an offence not charged
Yes. Invoking section 179 of the Criminal Procedure Code, the court proceeded to determine and convict on the cognate minor offence of conveying suspected stolen goods, since the evidence gave sufficient notice and no prejudice would arise.
Relying on Robert Mutungi Muumbi v Republic, the court applied section 179(c) principles: the major and minor offences must be cognate, the evidence on the major charge must constitute the minor offence, and the accused must have had notice of all circumstances of the minor offence. The court found both conditions satisfied and exercised its discretion to convict under section 323 of the Penal Code.
Whether the ingredients of the offence under section 323 of the Penal Code read with section 26(1) of the Criminal Procedure Code were proved
Yes. All five Kiondo Hamisi ingredients were established: detention in the exercise of statutory powers during a journey, possession of a calf reasonably suspected of being stolen, and failure to give a satisfactory account.
The Accused Persons were detained by police at about 0400hrs while on a journey, in possession of a calf. The hour and their failure to stop when waved down invited an irresistible inference the calf was stolen or unlawfully obtained. The 1st Accused's sworn defence, a mere denial, did not dislodge the prosecution's case, so the court was satisfied beyond reasonable doubt.
Whether the trial could proceed in the absence of the absconded 2nd Accused Person
Yes. Article 50(2)(f) of the Constitution permits trial in absentia where an accused wilfully makes attendance untenable, regardless of the gravity of the offence.
The 2nd Accused absconded before hearing and could not be arrested despite warrants. The court, following Republic v Galma Abagaro Shano and subsequent High Court decisions, held that by absconding the accused waived his right to be present, and the trial could proceed, and conclude, in his absence notwithstanding section 206(1) of the Criminal Procedure Code.
Legal principles established
#- Where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court can proceed to hear and conclude the trial in his/her absence.
- Section 9(1) of the Stock and Produce Theft Act creates only the offence of illegal possession of stock, not the offence of conveying stolen stock.
- Under section 179 of the Criminal Procedure Code a court may convict an accused of a minor cognate offence with which he was not charged, provided the major charge gave notice of all circumstances constituting the minor offence and the accused is not prejudiced.
- Conveying a calf on a motorbike at around 0400hrs, and failing to stop when waved down by police, draws an irresistible inference that the goods were stolen or unlawfully obtained.
Court orders
#- 1.The Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of conveying suspected stolen goods under section 323 of the Penal Code
- Jurisdiction invoked
- Criminal jurisdiction of the subordinate court under the Criminal Procedure Code; offence under section 9(1) of the Stock and Produce Theft Act as read with section 275 of the Penal Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Omuse & another (Criminal Case E1386 of 2025) [2026] KEMC 614 (KLR)", Case Analysis (2026). Criminal Case, Bungoma (charge dated 13th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/614/eng@2026-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.