Republic v Lucy Wanja Simon

Count III: Lucy Wanja Simon: On the 27th day of March, 2020 at Kenya· Commercial Bank, Kerugoya branch in Kirinyaga Central Sub County within Kirinyaga County, jointly with others not before court, without a grant of representation disposed of Kenya shillings 131,500/ = (one hundred and thirty-one thousand five hundred shillings) from account number 1XXXXXXX50 the property of Sospeter Muriuki Kibui a deceased person. Count Iv: Lucy Wanja Simon: On 3rd day of April 2020 at the National Transport Safety Authority Headquarters Jointly with others not before court and without grant of representation disposed of motor vehicle registration number. KBP 310P Toyota Probox silver in colour the property of Sospeter Muriuki Kibui a deceased person.” The appeal 2. The Prosecution appeals the acquittal of the Respondent on charges of theft and intermeddling with the estate of a deceased person on grounds set in the Memorandum of Appeal dated 25/9/2023 as follows: “ Memorandum Of Appeal TAke Notice the Appellant herein being dissatisfied with the Judgement of the Honourable Chief Magistrate Ithuku delivered on 13th day of September 2023 at Kerugoya MCCR No 388 of 2020 Republic vs. Lucy Wanja Simon intends to appeal to the High Court against the whole of the said Judgement and relies on the following Ground of Appeal. 1. The Learned Trial Magistrate erred in law and in fact in failing to consider the weight of the evidence by the Appellant and ended up with a wrong finding. 2. That the Learned Trial Magistrate erred in law and in fact in failing to find there was reasonable grounds to convict the accused person. 3. That the Learned Trial Magistrate erred in law and in fact by failing to take into consideration/credibility of the circumstances under which the accused persons were charged. 4. That the entire Judgement and subsequent acquittal is misleading and is against the weight of evidence and against the principles of a fair trial and natural justice. Reasons Whereof the Appellant pray for judgement against the respondents for – a) That the appeal be allowed. b) That the Judgment and subsequent acquittal be set aside and the same be substituted with an order of conviction.” The evidence 3. The prosecution called witnesses and when put on his defence the accused called four witnesses. 4. PW1 Susan Muriuki from Gathuthuma, a farmer testified that he knew accused person. As her younger sister and that Sospeter Kibui was her husband who had died on 26.4.2020 while on treatment: “ I cannot remember the events of 1.4.2020. I had given my sister a plot to grow rice in Mwea. When my husband died she started claiming that the land belonged to her. I did not give my https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 2

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sister my ATM card. My husband had ajoint account with me at KCB. By the time of his death the account had Kshs 131,500/=. When I went to withdraw I found that the money had been withdrawn. Kshs 50/= was the balance. I got to know that the accused is the one who had withdrawn the money. I was given a statement (witness identifies a statement for account No 1XXXXXXX50 in the name of Sospeter Kibui). It is marked MFI-l. CID officer told me that the accused had withdrawn the money. My husband had a car. It was a Probox. It was KBD 310T. The car is held with the police. The accused tried to transfer the car from my husband's name to her name. I do not know Joseph Kinuthia Kamau. NTSA copy of records is MFI-2. After the death of my husband I did not get some title deeds. I could not find my husband's logbook (witness showed burial permit). It is marked MFI-3. Letter from Our Lady of Lourdes Hospital is MFI-4. My husband had not written a will. Investigators told me that they had obtained a will. That it had been done by Wangechi Munene Advocate. 5. On cross-examination, she said that“ Sospeter was my husband. The person who received my dowry recorded a statement. The accused person had leased out a shamba in Mwea. It was not Sospeter's land. I did not call my sister on phone to give me ATM card. I was shown a statement showing the account balance. The account was held jointly with myself. My husband had a car. I do not have ownership documents. My husband was living at Mwea. The accused had been given a store to keep her rice. I reported loss of title deeds. A will was read to us. I objected to it. I took the will to police. The accused is married to Simon Gichobi. She was not married by my husband. Accused is my sister.” 6. On re-examination by the Prosecutor, she said: “ I was married under Kikuyu Customary Law. The elders who received my dowry are present. Burial permit is in my name. I had allowed my sister to use and store to keep her rice. I objected the will. It had not given me any land.” 7. PW2 Kingori Migwi a preacher and cousin to the complainant PW1, Susan Muriuki, and the accused testified that – “ The father to Susan is a brother to my father. I was present during the dowry negotiations. I cannot remember the year. It was around 1978. Muriuki brought five crates of beer, one sheep and goats. We accepted the dowry payment. Later he brought 10 goats and a bull represented by 5 goats. He also gave a blanket and coat. He complied with Kikuyu customs. We allowed him to slaughter a sheep. Later I got to learn that Muriuki was living with a woman called Lucy Wanja. The deceased came to my house. He said that he was unwell. That if he dies he should be taken to the home of PW1. I got information from PW1 that the accused had withdrawn money from the account of deceased. I recorded a statement with DCI. I told them that Muriuki had only one wife. We did not receive any dowry in respect of Lucy Wanja. It was not allowed for Muriuki to marry sisters. The complainant is my cousin. 8. On Cross-examination by Mr. Makori he said: “ I know PW1 as wife to the deceased. They got married in 1978. I am speaking the truth. The marriage is confirmed when one slaughters a sheep. No mark is given. I got to learn from https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 3

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PW1’s father that Lucy Wanjau was living with Muriuki. He said that it was a curse. The accused withdrew money.” 9. On Re-examination he said that he had attended the dowry negotiations. 10. PW3 No.238525 IP Johnson Kwiyaki of Embu County HQS testified that: “ On 5.5.2020 I was called to DCI HQS Kerugoya. On arriving I was to address an issue about Kshs.131,000/= withdrawn from an account. The withdrawal was done at Kandogu. I confirm that Lucy Wanja came to my business premises. She withdrew the money. she was known to me. She used to come with her husband Peter Muriuki Kabue. On the day of withdrawal she claimed that she needed to offset a bill at Karira hospital. Later I came to learn that Peter Kibue had passed on. I run a general shop. I have deposit agency services. I have an agency with KCB. The accused is my neighbour. The husband had allowed her to operate the account. They used to come together. At the time of withdrawal. She told me that the husband was admitted at hospital. She had his ATM and ID card.” 11. On Cross-examination he said: “ Lucy Wanja accused was a wife to Sospeter Muriuki – deceased. The husband gave authority for the accused to operate his account. I had no problem with her withdrawing money. She said that she was to pay hospital bills.” 12. On re-examination, he said he had not known that Sospeter was dead at the time of withdrawal. 13. PW4 Charles Koigo, Assistant Chief Gakoigo said upon the former Assistant Chief Sospeter Muriuki’s death, the relatives wanted a letter to take to the hospital: “ His 3 wives came. They said that they had authorized one of them. Susan Njoki to sign the burial permit. On the burial date I attended. The accused person was one of the women who came to my office. After the burial one of the deceased nephews asked me to remain because there was a will to be read. I declined because I had other engagements. The following day I was summoned at DCI Kerugoya. I was told that my letter was being investigated. I acknowledged writing the letter. The letter is MFI 5. I know that accused person was living with the deceased. I do not know anything about withdrawal of money.” 14. On Cross-examination he said “I know accused. She was wife to deceased. They came to my office as wives. The deceased died at her place.” 15. PW5 No.79920 Cpl Koros of Kirinyaga D.C.I, the Investigating Officer (I.O.) herein testified that: “ I recall that Susan Muriuki went to Kerugoya police station and reported the case on 6.4.2020. She claimed that her husband had passed away on 26.3.2020. That he was buried on 2.4.2020. That while complainant was looking for deceased’s document she realized that they were missing. They recovered title deeds and ID card. We took over investigations. We looked at the ATM card of the deceased. The account No. is XXXXXXX50 in the name of the deceased. I write to the bank. I got statements. It was noted that on 27.3.2020 two withdrawals were done. They for Kshs.31,500/= and 100,000/=. I also wrote to NTSA. There is a log book that was missing motor vehicle KBP 310 P was for the name of accused and complainant. I also got a letter from the hospital where he died. We traced the card to the accused. She claimed that the deceased was her husband. The complainant told us that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 4

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accused was her biological sister. Concluded that accused person did all that is alleged. I arrested her and charged her as present. I wish to produce the following exhibits. 1. Accused had fake NHIF and KRA Pin from other people. 2. Bank statement is exhibit NO1. It does not show who withdrew the money. 3. NTSA records. They are exhibit No.2 4. The vehicle was given to accused. It is before court today. 5. Burial permit 6. Letter from Mwea hospital (Lady of Lourdes). The accused claimed to be wife to the deceased. Accused not known to me.” 16. On Cross-examination he said: “ I’m the Investigating officer in this case. I have been investigator for 21 years. The accused has in possession of stolen goods. It includes motor vehicle KBP 310 P Kshs. 131,500/= was withdrawn by accused. The NTSA report shows current owner as Lucy Wanja Simon.” 17. Upon being put on her defence, the accused testified as DW1 and said: “ I’m Lucy Wanja Simon. I’m from Kadongu. I’m a farmer. On 27.3.2020, I withdrew money. It was Kshs.131,500/=. It was from Sospeter Muriuki account. Sospeter is my husband. We were married for 21 years. I was to pay medical bill. My husband had been treated there. The money was held at KCB. I used ATM. It was given to me by my husband. I withdrew through an agent at Kadongu. I could not have withdrawn money without ATM and PIN. Sospeter had three wives. They are Mary Wagatwe and Susan. The chief gave us a letter after our husband died. The letter dated 1.4.2020 is D.exhibit NO.1. We agreed that he be buried at Gathutha. That was his wish. We got another letter by Senior chief Gatwe. It says that we were three wives. The letter by chief Munene dated 21.12.20 is exhibit No.1. I was living with my husband at Kadongu. We had a rice farm. I was arrested at home. The police took away a motor vehicle. My household goods were taken to my co-wife’s house. Some of the items were returned. The vehicle was taken to Kerugoya police station. My title deeds were returned. Susan has some title deeds. Toyota Probox is mine. I bought. It is registered in my name. it was never registered in the name of Sospter Muriuki. It is registered in my name. The log book is in court. It is our exhibit No.3.” 18. On Cross-examination by Prosecutor, she said: “ I was the third wife. Mary Wagatwe is second wife. I withdrew money on 27.3.2020. My husband died on 26.3.2020. I had been introduced to an agency by my late husband. I did not inform my co-wives about the withdrawal. The chief was not aware. We transferred the ownership of the Toyota Probox after death of my husband. I did not inform my co-wives. 19. On Cross-examination by Ms. Muturi for the complainant: “ I know that dealing with property of deceased without authority is illegal. I had not obtained letters of Administration.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 5

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20. On re-examination. by Mr. Makori: “ My husband died on 26.3.2020. He gave me the card on the same day. I did not know that he was dead. The card did not belong to the deceased. It was mine.” 21. DW2 Benson Njogu Gakuo, a Clinical officer based at Mugoi Medical Centre Kadongu testified that: “ I was requested by advocate to furnish him with medical report and receipts for money paid. This was in respect of Sospeter Muriuki Kibui. He was 66 years old. He was a resident of Kadongu. On 28.1.2020 the patient was admitted in our facility. He could not pay immediately. We were treating him at hospital and also offering homebased care. They were paying in installments. We referred him to Karira hospital. While at Karira he called me on phone. He told me that money will be brought. On 28.1.2020 the money owing was Kshs.12,000/=. On 8.2.2020 he incurred a bill of Kshs.30,000/=. On 15.2.2020 he came back. We charged Kshs.5,000/=. On 18.2.2020 we served him. We charged Kshs.23,000/ =. 22.2.2020 he was treated. We charged Kshs.5,000/=. On 25.2.2020 we charged him Kshs.22,775/=. On 20.3.2020 the patient’s wife came. We charged Kshs.2,200/= for drugs. On 10.3.2020 we charged Kshs.25,225/=. On 27.3.2020 the accused person came. She was in the company of a man. She cleared the entire bill of Kshs.120,290/=. The receipts are produced as exhibit No.4. The medical reports are exhibit No.5. 22. On Cross-examination by the Prosecutor: “ I do not have any document showing that I am a Clinical officer. The first seven receipts are in …… The facility is private. The complainant was my friend. It is an outpatient facility. The patient did not die at our facility. I do not know when the patient died. I did not know about his other wives.” 23. On Cross-examination by Mr. MAKORI, he said “I have given the court my registration number.” 24. DW3 Joseph Warui, resident of Kirinyaga and farmer testified that: “ I know Lucy Wanja. She was wife to the deceased Sospeter Muriuki. I have known them since 2003. They were living at Mwea. I knew that Sospeter had three wvies. The other two lived at Kagumo. I used to see deceased with a Toyota Probox. He informed me that it belonged to his wife – accused. There was a time he invited me to Kagumo. He wrote a will. I was to be a witness. He had shared out his property to his three wives. I signed the will as witness. I recorded a statement. 25. On Cross-examination by the Prosecution he said: “ We signed a will before an advocate. I do not have a copy. The property at Mwea was to go to Lucy Wanja, his wife. Deceased did not tell me about his other property. I knew the two other wives. They are Mary Wagatwe and Njoki. Deceased died about two years ago. One cannot sell property of deceased.” 26. On Cross-examination by Mr. Magee: “ I do not know the deceased’s clan. I’m 75 years. For a Kikuyu marriage to be valid dowry has to be paid. It was allowed under Kikuyu customary law to marry sisters. I do not know the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 6

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birthplace of the deceased. I do not know when accused was married. I know two children by accused and deceased. I’m not aware that accused was married elsewhere. I signed will at Kagio. I found will already written. We all signed together. Sospeter signed in my presence. The advocate did not go to the vehicle for deceased to sign.” 27. On Re-examination by Mr. Makori: “ I did not know the deceased’s clan. I did not participate in payment of dowry. I did not know whether his wives were sisters.” 28. DW4 Jacinta Muthoni from Kirinyaga County and a sister to the Deceased testified that: “ Sospeter was my elder brother. He was married to the accused herein. He had two other wives. They are Mary Wagatwe and Susan Njoki. I went to see my brother at Mwea hospital. He told me that he had a medical bill at Kandongu. He wanted money to be withdrawn. The deceased died that night. It was withdrawn on 26.3.2020. I was a witness to a will written by the deceased. I went with him to the advocate’s office at Kagio. There was a man in the office. The [vehicle] was not part of the will. He said that it belonged the accused person.” 29. On Cross-examination by the Prosecutor: “ The deceased was living at Kadongu. They were living with accused. The deceased died at Mwea hospital. I visited the deceased on 26.3.2020. I was with my sister. He died on the same day at night. The money was withdrawn on 27.3.2020. Deceased was taken to hospital by accused. Lucy is the one who withdrew the money.” 30. On Cross-examination by Mr. Magee: “ I have three brothers. I have six sisters. I’m married. I live in Nyeri. I was born and brought up at Mutira. I was married in 1973. My brother got married after me. Susan Njoki was from Mutira. I know that accused is a sister to Susan. Lucy was married in 1978. They got three children. I’m not aware that Lucy had been married elsewhere. I have never heard of any other person who married two sisters. We are not interested in deceased’s property. I’m not aware of any brother who had chased away Susan from her farm. Lucy was not present when will was written. The deceased was not sick. Sospeter entered the office. He drove to the office. The advocate was a lady. She was my height. Sospeter signed before us. The other witness was present. The motor vehicle was KBP 310.” The Judgment of the trial court 31. The Judgment of the trial court of 23/9/2023 is as follows: “ 28. I have carefully considered the evidence on record and submissions by Counsel. The issues for determination are: a) Whether the accused stole Kshs.131,500/= as alleged in the two counts. b) Whether the accused person intermeddled with the estate of the deceased as particularized in court 3 and 4. (c) Whether the charges are proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 7

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29. On the first issue the prosecution led evidence to show that she withdrew Kshs.131,500/= from a KCB agent at Kagio. The withdrawal was confirmed by PW3 and the investigating officer who produced bank statements. PW1 stated that she was a joint account owner with the deceased. That when she went to the bank she found all the money withdrawn. The withdrawal was on 27.3.2020. 30. The prosecution insisted that the accused withdrew the money belonging to SOSPETER MURIUKI who was at the time deceased. In her defence the accused person confirmed that she withdrew the money. 31. Under Section 268 (1) of the Penal Code stealing is defined as: “(1) A person who fraudulently and without claim of right takes anything capable of being stolen or fraudulently converts to the use of any person, other than the general or a special owner thereof any property is said to steal that thing or property”. 32. The question is whether the evidence on record satisfies the definition above. While money is obviously something capable of being stolen and the accused person readily admits withdrawing Kshs.131,500/= on 27.3.2020 the prosecution needs to prove that this was done fraudulently and without claim of right. 33. The elements of stealing are set out in Section 268 (2). It states: “(2) 34. A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say: a). an intent permanently to deprive the general or special owner of the thing of it: b). ……………………………… c). ………………………………… d). ………………………….. e). in the case of money, an intent to use it at the will of the person who takes or converts it although he may intend afterwards to repay the amount to the owner.” There was evidence on both sides on whether the accused person was a wife to the deceased. PW1 said she was not. They are sisters. On further probing she confirmed that they were living together in Kandogu while PW1, 1st wife was living in Kagumo. It emerged that there was another wife called Wagatwe. PW3, Charles Koigi was the area Assistant Chief. He testified that the accused and PW1 were co-wives. That the deceased had three wives and he is the one who gave them a burial permit. PW4 told the court that he knew the deceased and accused person as a couple and that they withdrew money on several https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 8

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occasions together at his agency. That it was not the first time for the accused to withdraw money in the absence of the deceased. 35. The question as to whether the accused was properly married to the deceased may not be determined in this court. The proper forum is the probate court. Suffice it to say that the two lived together in circumstances that led reasonable people interacting with them to consider them a couple. 36. The evidence by the Clinical officer where the deceased was treated shows that it is the accused person who used to take him to hospital. They had not dealt with any other wife. 37. The evidence of the relationship and the further evidence that Kshs.120,290/ = was paid by the accused to the hospital lends credence to the assertion that the money was withdrawn for the benefit of the deceased. The other important question is whether at the time of withdrawing the funds the accused knew that SOSPETER MURIUKI KIBUI was dead. The evidence on record shows that he died on the night of 26.3.2020. The accused person was with the deceased that very night. I believe her and her witnesses when she says that she was not aware of the death by the time she withdrew the money. There is no evidence that she intended to deprive the deceased or his estate of the money. Indeed, there is evidence that she used a substantial part of the money to pay his medical bills. She acted as the wife she claimed to be. 38. In the circumstances, I find that the charges of stealing contrary to Section 268 is not proved to the required standard. Accused person is hereby acquitted under Section 215 CPC. 39. The 3rd count falls by the way side owing to the explanation given above. It needed to be proved that she was aware that the deceased had passed on by the time she withdrew the funds. The prosecution needed to prove that she acted fraudulently. This was not done. Accused person is acquitted of the charges under Section 215 of the CPC. 40. The 4th count is in respect to the disposal of motor vehicle registration number KBP 310 P. The prosecution needed to prove that the vehicle belonged to the deceased. Exhibit No.2 produced by the prosecution shows that as at 3.4.2020 the vehicle was registered in the name of the accused. The previous owner was Joseph Kinuthia Kamau. The said Kamau has not complained. How then could the accused person be charged with intermeddling with the estate if the property was not registered in the name of the deceased. 41. Further, it is said that she disposed on 3.4.2020. The copy of records from N.T.S.A shows that on that day the card was still in her name. Clearly on this count the prosecution has not proved the case beyond reasonable doubt. The accused person is accordingly acquitted under Section 215 of CPC. Orders accordingly. A.K. Ithuku Chief Magistrate” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 9

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Submissions 32. The parties filed Submissions, respectively dated 26/7/2024 and 1/5/2025. The Appellant urged that the evidence adduced had established that the Respondent knew of the death of the deceased owner of the suit property and her taking after the death was theft and amounted to intermeddling as follows: “ THE [APPELLANT'S] SUBMISSIONS 1. On 13/09/2023, the trial court acquitted the respondent of stealing and intermeddling contrary to section 268 as read with section 275 of the Penal Code as well as section 45 of the Law of Succession Act. 2. Aggrieved by the judgement, the appellant lodged an appeal vide the petition of appeal dated 16/06/2023 that sets out the grounds of appeal. In the submissions, the appellant submits on a single issue as to whether the evidence relating to the respondent's withdraw of Kshs.131,500/= from the deceased's bank account without the grant of probate proofs that she committed the offence of stealing and intermeddling beyond reasonable doubt. The issue relating to stealing and intermeddling with the deceased estate's motor vehicle registration KBP 310 P is abandoned . h. Analysis of evidence before the trial court The appellant submits that although the Learned Magistrate correctly found money was something capable of being stolen, he erred in finding that the respondent did not know that the deceased had (lied when she withdraw money from the deceased's bank account. PWl testified that the deceased died on 26/03/2023. She identified the Burial Permit and Letter from Hospital confirming the date. PW5 produced them as Ex - 3 & 4. The deceased's account had Kshs. 131,500/=. It was withdrawn on 27/03/2023. PWs produced the Bank Statement as Ex- 1. It confirms the same. DWl neither denies withdrawing the money nor that she had no Grant of probate. She claims that she wasn't aware that the deceased had died. And that she wanted to use it to settle the hospital bill. DW1'S above claims collapse upon close scrutiny of the evidence on record. DWl testified that she was one of the three deceased's wives. She testified further that she was living with him. DW2 testified that DW1was the one bringing him to hospital and used to settle the bills. The deceased died on 26/03/2023 at night. The trial court correctly established that the appellant was with the deceased 'that very night' (page 9 of the judgement) that he died. These shreds of evidence collectively demonstrate that there no way the appellant would not have known that the deceased was dead by the time she was withdrawing the money on 27/03/2023. The claim that she didn't know is an afterthought to conceal her knowledge and intention to steal and intermeddle. It is unimaginable that a caregiver and wife who had been taking care of her husband at hospital to 'the very night' of his death would not be aware about his death the following day! Significantly, DWl confirmed that she did not inform the other co-wives about the withdraw during crossexamination. This confirmation further supports the appellant's submission https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 10

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that her purported ignorance of the deceased's death when withdrawing the money was an afterthought to conceal her fraudulent intention to steal it. That is why she did not disclose to her co-wives, until placed on defense. Finally, the evidence that she paid the money Kshs. 120,290/- as hospital bill is uncredible and unreliable. DW2 did not produce KRA generated receipts. Similarly, did not produce the hospital bill invoice. Considering he claimed that the bill was accrued in different dates and over months, the hospital invoice could have sufficed to ascertain billing. Of more importance is Ex-I (Bank Statement) that shows respondent withdrawing all the money in the Bank account. Yet, the hospital as DW2 claims was less than the amount withdrawn. She only remained Kshs. 352/ =, which the court can take judicial notice banks remain with few hundreds to run the account. The prosecution submits that these actions - her leaving hospital the very night of deceased death, withdrawing money in excess and not informing her co-wives cannot account for nothing. They unmask the respondent's intention: to steal everything from the deceased's estate. Tellingly, DW1 neither availed witnesses nor a dying declaration corroborating that the deceased had authorized her to withdraw the money. In contrast, the evidence on record leaves no doubt to the respondent's knowledge and intention to steal as well as intermeddle with the deceased's estate. 5. In Maurice Okello Kaburu & another v Republic [2022] eKLR held the following in relation to standard of proof in criminal cases - 56. In criminal cases, it is old hat that the standard of proof is beyond reasonable doubt (...) 57-Lord Denninq in Miller v Ministry of Pensions, [1947] 2 ALL ER 372 had this to say: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of Justice. The evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible. but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice." [emphasis mine] c. Conclusion In light of the above, the appellant invites this Honourable Court to overturn the Impugned judgment and find the respondent guilty of counts I, II & III in the charge sheet.” 33. The Respondent emphasized her status as spouse of the deceased who had given her authority to transact his accounts on his behalf and that she had used the money towards payment for his treatment, as follows: “ Respondent's Submissions Against the State Appeal Introduction https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 11

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This submission is made in response to the appeal filed by the Republic against the judgment of the lower court at Kerugoya MCCR No.388/2020 dated 13th day of September 2023. The respondent was acquitted of all charges, and the state now seeks to overturn this judgment. The respondent respectfully submits that the appeal lodged by the appellant lacks merit and should be dismissed in its entirety. The trial court's judgment was wellreasoned and based on a thorough examination of the evidence presented. Analysis of Evidence The trial court rightly found that the appellant failed to prove beyond a reasonable doubt that the respondent committed the offences of stealing and intermeddling. The respondent asserts that she was unaware of the deceased's death when she withdrew funds from the bank account. Evidence presented by the respondent demonstrated her close relationship with the deceased. The accused testified that she was one of the deceased's wives and had been living with him. She was responsible for his care, including taking him to the hospital. This relationship supports her claim of ignorance regarding the deceased's death. The appellant's assertions regarding the timeline are speculative. The evidence does not definitively prove that the respondent was aware of the deceased's death at the time of the withdrawal. The withdrawal occurred shortly after the deceased's passing, but no evidence establishes that the respondent had clear knowledge of this fact. Credibility of Evidence The appellant's argument hinges on circumstantial evidence, which does not meet the required standard of proof. The trial court correctly noted that the burden of proof lies with the prosecution, and the evidence presented by the appellant failed to meet this burden. Furthermore, the respondent provided a plausible explanation for the withdrawal, stating it was intended to cover hospital bills. The absence of corroborating documentation does not negate the possibility of her claims being true. The lack of a hospital invoice does not automatically imply fraudulent intent. - In the case of John Nakoroto Eregai -versusRepublic, the court held that the learned Judges of the High court were totally alive and guided by the evidence adduced before the trial court and arrived at their own independent decision. In this case, the curt emphasized that 'the burden of proof lies with the prosecution. It must prove its case beyond a reasonable doubt, and that the appellate court must respect the trial judge's findings unless a clear error is evident. The trial cOUl1 in this case acted within its mandate, and the judgment should stand. Conclusion ' In conclusion, the respondent urges this Honourable Court to uphold the trial court's judgment. The evidence presented does not substantiate the claims of theft or intermeddling beyond a reasonable doubt. The appeal should be dismissed, and the respondent should be found not guilty of the charges. These cases collectively underscore the necessity for the prosecution to meet its burden of proof beyond a reasonable doubt and highlight the importance of credible, corroborated evidence in criminal proceedings. The respondent invites the court to consider these precedents in its deliberation of the appeal.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 12

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Issues for determination 34. Whether the offences of theft and intermeddling were proved against the Respondent and whether the trial court was wrong in acquitting the Respondent accused. As counselled by Okeno v. R (1972) EA 32, the Court shall evaluate the evidence before the Court and make its own conclusions before deciding whether the finding of the trial court is to be affirmed or reversed. 35. In accordance with Okethi Olale v. R (1965) EA 555, the Court shall consider the evidence presented by the Prosecution and the Defence before the trial court as a whole. Determination 36. Upon considering the submissions and evidence on the evidence before the trial court the accused had with the consent of the deceased access and authority to withdraw money from his account as charged in count I and count III on theft and intermeddling. 37. The accused was not shown to have withdrawn the money with intent to defraud the Estate of the deceased as it was not shown that she was aware that the deceased had passed on the night before at the hospital. 38. The money withdrawn was shown to have been used to pay for the deceased’s hospital bill as accused had been authorized by the deceased before his death. 39. There was no evidence that the motor vehicle subject of the charges in Count IV was part of the Estate of the deceased as it had not been shown that the vehicle was ever registered in the name of the deceased or otherwise beneficially owned by him. The Prosecution properly abandoned this ground of appeal. 40. The relationship of the accused to the deceased was that of wife-husband set up, circumstances that create a reasonable doubt to the criminal charges of theft and intermeddling against the accused. 41. The Court agrees with the trial court’s Judgment, whose effective parts are set out above, that the Prosecution did not prove the various charges of theft and intermeddling beyond reasonable doubt and, consequently, finds that the accused was properly acquitted of the charges. Orders 42. Accordingly, for the reasons set out above, the Court finds that the appeal has no merit and it is dismissed. Order accordingly. DATED AND DELIVERED THIS 20TH FEBRUARY, 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Mr. Makori Instructed by M/S Ongaro & Co. Advocates for the Respondent. Mr. Magee instructed by M/S Magee LLP for the Complainant/Interested Party https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4475/eng@2026-02-20 13

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