Joseph Wachira Njuguna v Republic

4. The appeal is contested by the Republic through grounds of opposition dated 2nd October 2025. In a synopsis, the State contends that all the elements of the offence were proved beyond any reasonable doubt; and, that the appeal is hopeless. 5. The appellant filed detailed submissions dated 4th December 2025. The Republic replied through submissions dated 23rd January 2026. 6. On 29th January 2026, learned counsel for both parties informed the court that they were relying entirely on those submissions and prayed for a date for judgment. 7. This is the first appellate court. I have reappraised the evidence and records and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Pandya v Republic [1957] E.A. 336, Okeno v Republic [1972] E. A. 32, Njoroge v Republic [1987] KLR 19. 8. It is a truism that the legal burden rested squarely on the Republic. Woolmington v DPP [1935] AC 462, Bhatt v Republic [1957] E.A. 332. I will now highlight the key evidence at the trial to determine whether the prosecution proved the charge to the required standard. 9. PW1 was Patrick Kibanya, a director and shareholder of Brits Freighters Limited, the owners of the motor vehicle registration number KCJ xxxM a prime mover make Mercedes Actros (hereafter the vehicle). The head of the trailer (usually referred to as the prime mover) was disconnected from the trailer and driven from the company’s yard at Bahati to Embakasi behind Transami Enterprises. He was emphatic that the journey was unauthorized by the company. 10. The vehicle had been parked at Bahati by Peter Wanjiru (PW2) who left its keys hanging on a board in the manager’s office and confirmed by the guards. That was on 5th May 2018. He was thus surprised to receive a call at 6:00 a.m., the following morning from one of the guards, Onesmus Kioko, (PW3) enquiring about the whereabouts of the prime mover. 11. When the vehicle was located through digital tracking, its number plates had been plucked out but were recovered hidden under a bed. Brian Kario Mwai (PW4) testified in detail how Retriever Company Limited, globally known as Cartrack, generated a report tracking the movement of the vehicle from Bahati at 3:19 a.m. on 6th May 2018 until it stopped in Embakasi at 4:29 a.m. 12. PW1, whose mobile device was connected to the tracking service, got in touch with Sgt Oscar Mutinda (PW6) of Parklands Police Station. He, together with his colleagues Cpl Tirop, PC Juma and Cpl Njagi located the stolen vehicle and arrested a Tanzanian national, Mrisho Kambi (accused 1) and Frank Ondwasi (accused 3) at the yard. When Mrisho opened his house at the yard, the missing number plates and car keys were recovered. Upon interrogation, he said the vehicle was driven in by someone he knew as Njuguna and with whom they had spoken (appellant/accused 4). The 3rd accused equally stated that the vehicle was driven in by the appellant. 13. The appellant was arrested by PC Mureithi and I.P. Kathurima and handed over to the investigating officer (PW9). The scene at Embakasi was processed and photographs taken by PC Balesa (PW7). From the call data produced by Cpl Gerald Kamwaro (PW9), the appellant’s mobile phone number 0717xxx429 was tracked moving along Mombasa Road towards Transami where the lorry was found. On 6th May 2018 at around 3:40 a.m., he called Mrisho on 0720xxx678 while in the locality of NextGen. At 4:13 a.m. on the same night he called Mrisho again at Transami area where the vehicle was recovered. 14. When the appellant was placed on his defence, he protested his innocence. He said he is a director of Njoru Enterprises and lives in South C. In his sworn evidence, he stated that on 5th May 2018, he left https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3250/eng@2026-03-12 2

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his house at 8:00 a.m. He spent the evening at various drinking spots in Nairobi West and Karen. Some of the people with him were senior policemen or notable politicians and they drunk until 4:00 a.m. He denied knowing the 1st or 3rd accused or having anything to do with the stolen vehicle. He added that he was neither familiar with Bahati area nor licensed to drive a trailer. 15. But part of his evidence in chief is telling. He saidI had my own phone when I parted with Mutai Alfred. From Karen, I drove towards South C, T-Mall, Nairobi West. My phone can confirm my movement. I met Mrisho and did not even take ten minutes. I drove to my house. I am not familiar with Bahati area. I have never been to those areas. 16. In cross examination, he conceded as followsI interacted with the 1st accused when I visited with Alfred Mutai. I had known Mrisho for one year and 3rd accused….on 6/5/2018 Alfred Mutai talked to me to speak to Mrisho while inside my motor vehicle…I never called Frank [3rd accused] to inform him about a motor vehicle. I called him when heading to church about a spare part… 17. On the date of his arrest, the police blocked his vehicle, disarmed him and booked him at Parklands Police Station. He claimed the 2nd accused paid the police Kshs 80,000 to have him arrested. He denied going underground or switching off his phone. In his words: “The officers who testified never interrogated me. I was just presented to court after money changed hands”. 18. Upon reappraisal of the evidence, I disagree with the appellant that the burden of proof was shifted to him; or, that his defence was disregarded. On the contrary, his entire defence was a sham. In parts of his defence he distanced himself from knowing the 1st, 2nd or 3rd accused. Yet in others or under the cross, he admitted knowing them for a period of time, albeit through business associates. On the material night, call data placed him at the locus in quo and in communication with Mrisho (1st accused) and Ondwasi (3rd accused). 19. I have kept in mind, that the charge facing the appellant was that in concert with others not before the court, he stole the vehicle. He did not have to drive it himself. But in this case there is the clear evidence of the 1st and 3rd accused that he was in control and delivered the vehicle to Transami and told the 3rd accused he would collect it later. The garage belonged to the 2nd accused. The number plates were then plucked out and hidden under the 1st accused’s bed. 20. It was never the appellant’s case that the vehicle belonged to him. He and his accomplices intended to permanently deprive the owner of it. It was obviously property capable of being stolen. Those are the primary elements of the offence. 21. I have also kept in mind the danger of relying on the evidence of the 1st, 2nd and 3rd accused. But that is not the only incriminating evidence. For instance there is the additional call data showing communication with Mrisho (1st accused) and that the appellant was travelling along Mombasa road towards the locus in quo. He also communicated with Ondwasi, the 3rd accused early on Sunday, 6th May 2018. Mrisho and Ondwasi were arrested that very morning at Embakasi where the vehicle was recovered. 22. In addition, the appellant in his sworn evidence that I quoted above admitted that on the material night, he met Mrisho and did not even take ten minutes. He thus unwittingly corroborated the 1st accused’s evidence that he met the appellant at the yard in Embakasi. He also admitted that he called https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3250/eng@2026-03-12 3

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Frank (3rd accused) early that Sunday “when heading to church”. I thus do not believe the appellant that he was tucked far away in Karen drinking with senior police officers and politicians the whole night of 5th and 6th May 2018. 23. I do not also believe his version that he was set up by the police or the 1st and 3rd accused. Tellingly, he never called any of the witnesses he was drinking with or whose names he gave to the trial court. His alibi was a red herring. I have no clear evidence that he went underground after the offence. But it was a little too convenient that upon the arrest of the 1st and 3rd accused, the appellant went to Nyeri until 7th May 2018. 24. In the end, I concur with the learned trial magistrate that the prosecution marshalled sufficient evidence that proved all the elements of theft of a motor vehicle beyond reasonable doubt. I equally find that the totality of the evidence was not at variance with the amended charge sheet read out on 25th April 2019. 25. Regarding the sentence, I find that that there is no appeal on the fine imposed or the default sentence. There is also no cross-appeal by the Republic. I will accordingly let the matter rest. 26. The upshot is that the entire appeal is devoid of merit and is hereby dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MARCH 2026. KANYI KIMONDO JUDGE Judgment read virtually on Microsoft Teams in the presence ofAppellant. Ms. Njeri Kariuki for the appellant instructed by Onesmus Githinji & Company Advocates. Ms. W. Awino for the Republic instructed by the Office of the Director of Public Prosecutions. Mr. E. Ombuna, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3250/eng@2026-03-12 4

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