Jackline Wanjiku v Republic

3. The learned Magistrate erred in law by not considering the reasonable doubts available in the prosecution’s case against the appellant and erred in law in not giving the appellant the benefit of doubt. 4. The learned Magistrate erred in law in convicting the accused without the prosecution having proved all the ingredients of the offence. 5. The learned trial magistrate did not direct herself that there was a possibility that the accused person did not understand and properly follow the trial process owing to the fact that she barely cross examined the prosecution witnesses and also did not tender any evidence in her defence thus rendering the entire process a mistrial. 6. The learned Magistrate erred in law and in fact by not considering the appellant’s mitigation. Duty of Appellant Court 4. The duty of this court as the first appellate court is to re-evaluate the evidence on record and draw its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses and should make due allowance in that respect. (See Okeno v R (1972) EA 32). Evidence 5. PW1 LWW testified that, “I live in Kangaita. I do pick tea at Kangaita tea farm. On 24/03/2023 I left work and went to take firewood and we went home. I have 3 children. Children SN was at our home. I also have a 5-year-old and 12-year-old. I did not see her. I did ask the 12-year-old, she said she saw the child in a bar which is within the plot we live. She is called P.A.N,- 5 – year - old. CW is 12 years old. C said N said she waits until she finishes soda, my child was drinking it. I did say she comes. I was told, she left with N’s cousin. N - sells the bar. It became dark. My neighbour did tell me she was in the bar and the child was taken by a person who took her. I met my friend who we picked firewood and I told her what happened. We did go to the bar with my neighbour as well, and I met N. N said she does not know who took the child. I told her I will blame her and I wanted my child. She said the child is in Gatwe and she wanted her to stay. I insisted we go. We did. I was very annoyed. I kept asking for my child. It attracted a crowd. I told them what happened. They said the child is for N. N did say it was her child. N said she will go by herself. A person who was a boda boda came and said N called him and told him to pick the child and a lady. My friend made a report at the Chief and we all went to the place where the boda boda took the child. We stopped at a bar. N got in. It seems she wanted to loose us. She left the bar and we came to Kagumo. N took us to a plot. N knocked a door, and asked for Cathy. I did ask if she saw a child. She said yes, they had left to go get Indomie. We waited for 20 minutes. I saw N and she was talking to boda boda. I was making a lot of noise. Mzee wa Nyumba Kumi came and I told him. I saw N had left. I did go back to the boda boda’s and I was with Mzee wa Nyumba Kumi. He did ask them where N was. They said she did tell her to go to Oxygen bar where the child is. N told them that was her child. We did go and we met with N with my child. I insisted she takes me to who had the child. She was hesitant. Mzee wa Nyumba Kumi told her to show us. I was with my friend and the boda boda. I waited outside, Mzee wa Nyumba Kumi and N went in. He came out and called OCS Kagumo. We did not find the girl. N said she had left. I did call my parents and they came. Police did come. Police did tell N to show them who’s child was and she did. It was a table with drinks. We did not find her. Police did ask the child who the mother is and she identified me. As we were about to leave, the lady who had the child was seen and she was arrested. I did not know her, but I saw her in Court. N used to like her, my child a lot and she used to call her. They look alike and she did tell people it is her child. I think they believed her.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2499/eng@2026-02-20 2

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6. On cross examination, she stated that, “I do not know how long you had her. I do not know when you took her.” 7. PW2 Jane Nyambura Kanyi testified that, “I live in Kangaita. I work at a tea research factory. On 24/03/2023, I was from work. I told my friend L we go look for firewood and we did go. We passed by my friend’s place, she asked her daughter C where her daughter is. She said she was with N but when she asked, she said she left with her cousin. I later came back to charge my phone charger at L’s place. I heard L being told by a neighbour called Ciku, N does not know where the cousin is. N said when we asked, she does not know her. She said she knew where she worked at a club. A boda boda did tell us she did carry a child and a lady to Kagumo. I did ask to report the case at sub-area and I did. We came to Kagumo. We went where she lived, but she was not known. At the road, we asked people and they did tell us that the lady and child were at the bar called Oxygen. As we went we met her and child. I took the child. L insisted she would to see who had the child. A man who was said to be Nyumba Kumi joined us and we went to Oxygen. He called police. We looked for the girl but we did not find her. As we were about to leave, she said the lady with the child said N said it was her child and the two are friends. The one who had the child is in Court. I did not know her before then. (Accused identified).” 8. PW3 AW testified that, “I live in Kagumo and I am a farmer. On 24/03/2023 at 7 pm, I was called by my daughter LW. She did tell me her daughter P.N was missing. I told her I will come. She said she did not need me to come. When she came back, she sent for her where she usually stays and she said she had gone to be with her cousin and she was not brought. I did meet up with them at Kagumo where the child was kept near a place called Venus. She was with the child and she insisted she wanted to come with the person who had the child and at that point, she was seen. She did say when she was asked if she had the child, she said she did and she said it belonged to another lady not my daughter. We did go to the Station. Accused in Court is the one who took the child.” 9. PW4 Inspector Lucy Nyambura testified that, “I am stationed at Kagumo Police Station. This case was reported by the mother of the child P.H. her child had been taken by the accused from her. Where one MN. She was a friend of the mother. The child is 5 years old. She took the child saying. She was going to buy her something in Kangaita. She did not tell anyone. She took the child to her house in Kagumo town. The child was hungry. She took her to Oxygen bar and ordered tea and smokies. Earlier on, the accused was drinking in a bar and she was not sober at the time. When the mother came back and could not find the child. She did raise an alarm. The boda boda called Julius told her he carried the accused and child to Kagumo. She made a report at Kagumo Police Station. We did act quickly and we found the accused with the child. She did – accused - tried to ran away, but she was arrested and charged.” 10. On cross examination, she stated that, “We did find you, you were trying to escape using another door and you had left the child.” 11. PW5 Julius Gatimu testified that, “I live in Kangaita. I do boda boda work. On 24/03/2023, I was at the stage at about 4pm. I was called by N, she told me to take her, points at accused. She had a child. I took her to a plot. At about 6 pm. I was told by N to take her and the mother of child to take them where I took her and the child. I did not know if it was hot her child. I took them where I dropped the child and we also participated in looking for both in Kagumo town where we did not find her. I then recorded my statement.” 12. The appellant told the trial court that, “I not give any evidence, I will keep quite.” Submissions 13. The appellant did not file any submissions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2499/eng@2026-02-20 3

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14. The respondent urged that it proved with consistent evidence that the appellant took the minor without the consent of PW1, enticed her with tea and smokie at Oxygen bar and wrongfully detained her, and cited Charies Ndungu Githuka v Republic [2014] KECA 843 (KLR), MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment) and Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR. It urged that the appellant was sentenced to 3 years instead of the prescribed sentence of 7 years imprisonment. Analysis and Determination 15. From the grounds of appeal, the issue for determination is whether the prosecution witnesses adduced consistent evidence to prove the offence beyond reasonable doubt. 16. Section 174 (1) (a) of the Penal Code provides that; Any person who, with intent to deprive any parent, guardian or other person who has the lawful care or charge of a child under the age of fourteen years of the possession of the child a) forcibly or fraudulently takes or entices away or detains the child; or (b) receives or harbours the child, knowing it to have been so taken or enticed away or detained, is guilty of a felony and is liable to imprisonment for seven years.” 17. On the material day, PW1 returned home from work only to find her child missing. She learnt with utter shock from her 12 year old daughter that the missing child was with N at a nearby bar. She went to the bar with PW2, where they found N. She testified that, “A person who was a boda boda came and said N called him and told him to pick the child and a lady. N took us to a plot. N knocked a door, and asked for Cathy. I did ask if she saw a child. She said yes, they had left to go get Indomie. We waited for 20 minutes. As we were about to leave, the lady who had the child was seen and she was arrested. I did not know her, but I saw her in Court.” On cross examination, she stated that, “I do not know how long you had her. I do not know when you took her.” 18. PW5 corroborated PW1’s testimony when he stated that, “I do boda boda work. On 24/03/2023, I was at the stage at about 4pm. I was called by N, she told me to take her, points at accused. She had a child. I took her to a plot.” 19. The Appellant was subsequently identified as the person who had stolen the minor by all the 5 prosecution witnesses. PW2 testified that, “The one who had the child is in Court. I did not know her before then. (Accused identified).” PW3 stated that, “Accused in Court is the one who took the child.” Upon cross-examination PW4 stated that, “We did find you, you were trying to escape using another door and you had left the child.” 20. On the evidence, the court finds that the prosecution proved by uncontroverted evidence that the Appellant took the minor without the consent and/or knowledge of her mother, PW1. The court is equally satisfied that the Appellant understood the court proceedings as she denied the charges, cross examined PW1 and PW4 and when put on her defence, she voluntarily elected to remain silent. 21. On sentence, the Appellant was sentenced to 3 years imprisonment for an offence whose prescribed sentence is 7 years. The trial court properly exercised its sentencing discretion. However, the court considering a sentence of imprisonment for a term of three years, it was required by section 3 (1) (b) of the Community Service Act No. 10 of 1998 to consider a CSO order as follows: “ (1) Where any person is convicted of an offence punishable with— https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2499/eng@2026-02-20 4

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(a) imprisonment for a term not exceeding three years, with or without the option of a fine; or (b) imprisonment for a term exceeding three years but for which the court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate, the court may, subject to this Act, make a community service order requiring the offender to perform community service. (2) .... (3) Where a court determines that a community service order should be made, it shall, before making the order, direct a community service officer to conduct an inquiry into the circumstances of the case and of the offender and report the findings to the court.” Orders 22. Accordingly, for the reasons set out above, this court finds that the appeal from conviction for the offence of child stealing contrary to section 174 (1) (a) of the Penal Code is without merit and it is dismissed. 23. As regards sentence, the Court wishes to take benefit of Probation Officer’s advice before making an order on sentence. 24. Mention on 9/3/2026 for sentencing proceedings. Order accordingly. DATED AND DELIVERED THIS 20TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Appellant in person. Mr. Mwangi for DPP. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2499/eng@2026-02-20 5

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