Ben Karanja Njoroge v Republic

7. Learned counsel for the appellant lodged submissions dated 25th November 2025 together with a bundle of authorities. The republic replied through submissions dated 18th February 2026. 8. On 19th February 2026, I heard further arguments from both learned counsel for the appellant and the republic. 9. I take the following view of the matter. This is a first appeal to the High Court. I have thus examined the record; re-evaluated the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] E. A. 32. 10. Upon a re-evaluation of the evidence of the nine witnesses lined up by the prosecution and the defence put forth by the appellant (DW1), I concur fully with the learned trial magistrate that there was no proof to the required standard on the two counts of conspiracy to commit a felony contrary to section 393 of the Penal Code and stealing by servant contrary to section 281 of the Code. Furthermore, there is no appeal or cross-appeal on the acquittal. 11. I will now turn to the crux of this appeal. Section 179 of the Criminal Procedure Code provides as follows1. When a person is charged with an ofience consisting of several particulars, a combination of some only of which constitutes a complete minor ofience, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor ofience although he was not charged with it. 2. When a person is charged with an ofience and facts are proved which reduce it to a minor ofience, he may be convicted of the minor ofience although he was not charged with it. 12. The learned trial magistrate was alive of the matter and after reviewing some authorities, she correctly observed that “an accused person charged with a major ofience may be convicted of a minor ofience if the main ofience and the minor ofience are cognate; that is to say, both are ofiences that are related or alike; of the same genus or species”. 13. The trial court concluded that that whereas the appellant did not participate in the theft, he failed to explain the deposit of Kshs 4,852,100 made into his Family Bank account from the complainant’s (Clarion Hotel) Kopokopo account. This was largely based on the forensic evidence of the auditor (PW9). In his unsworn defence, the appellant denied that any such sum was deposited into his account. 14. I have kept in mind that the appellant was not charged for the ofience of handling stolen property. Rather, the trial court was invoking section 179 of the Criminal Procedure Code above. 15. The two ofiences for which the appellant was charged and the conviction now for handling stolen property fall in the genus of ofiences against property. I however readily find that the ofience of handling stolen property was not a minor or lesser ofience. Whereas the ofiences of theft by servant and conspiracy to commit a felony attracted a maximum sentence of 7 years imprisonment, handling stolen property was a graver ofience attracting punishment of up to 14 years imprisonment. 16. To properly invoke section 179 of the Criminal Procedure Code, the ofience must be cognate and lesser. See generally SKW v Republic [2025] KECA 326 (KLR). That was not the case in the instant matter. 17. This conclusion is sufficient to dispose of the appeal and I need not make a finding on the remainder of the grounds of appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4958/eng@2026-04-16 2

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18. The upshot is that the appeal is allowed. Both the conviction and sentence for the ofience of handling stolen property contrary to section 322 (2) of the Penal Code be and are hereby set aside. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF APRIL 2026. KANYI KIMONDO JUDGE Judgment read virtually on Microsoft Teams in the presence ofAppellant. Mr. Shammah holding brief for Mr. Mbugua for the appellant instructed by Mbugua Ng’ang’a & Company Advocates. Ms. 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/2026/4958/eng@2026-04-16 3

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