Republic v Timothy (Criminal Case E080 of 2024) [2025] KEMC 373 (KLR)

Notably, the machine room door bore no signs of tampering, and the only persons with keys were the accused and the project treasurer. 3. The identity of the thief could not be established. By day, the accused was tasked with safeguarding the project; by night, he worked as a school guard. Yet suspicion fell upon him, for the lock remained intact and the door bore no signs of forced entry. It was emphasized that the project was a community initiative, and the accused merely assisted in its running. During drought seasons, water would be sold and a portion of the proceeds given to him as a stipend. 4. The case was reported at Yaathui Police Station. Investigations did not reveal that the door was broken into nor the padlock tampered with. Police Constable Abdinassir Mohamoud Mohammed who was the investigating officer was transferred and PC Omar Abdi took over the case once hearing had already commenced. He testified that only the accused could access the site and he was therefore arrested for the offence of breaking and stealing as well as failing to prevent a felony. 5. The law on a ruling on whether the accused has a case to answer or not is pegged on Sections 210 and 211 of the Criminal Procedure Code, Cap 75 of the laws of Kenya are instructive. Justice R. Nyakundi in considering this aspect in the case of REPUBLIC v ALEX MWANZIA MUTANGILI [2017] eKLR cited with approval the Federal Court of Malaysia’s ruling in the case of PP v Mohamed Radzi bin Abu Bakar [2005] 6MLJ 399 which read in part as follows: “(i) At the close of the prosecution case, subject the evidence led by the prosecution in its totality to a maximum evaluation, carefully scrutinize the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from the evidence if the evidence admits of two or more inferences, then draw the inferences that is most favourable to the accused. (ii) Ask yourself the question: If I now call upon the accused to make his defence and he elects to remain silent, Am I prepared to convict him on the evidence now before me" If the answer to that question is YES, a prima facie case has been made out and Page 2 of 6 SO E080/24

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the defence should be called. If the answer is NO, a prima facie case has not been made out and the accused should be acquitted. (iii) After the defence is called, the accused elects to remain silent, then convict.” 6. In making the decision above, this court was firmly guided by the above stated decision and in addition to it, the court will also rely on the time honoured and respected judicial decision in the locus classicus case of RAMANLAL TRAMBAKLAL BHATT v REPUBLIC [1957] EA 332 where the Eastern African Court of Appeal in similar regard held as follows:‘’ Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a Prima facie case is made out if, at the close of the prosecution the case is merely one, which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by a Prima facie case, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.’’ ANALYSIS 7. This court has asked itself whether the prosecution have made out a prima facie case against the accused in the circumstances and the simple answer is, they have not done so. First, and foremost, the second count i.e. failing to prevent a felony was wrongly drafted. It was titled “Alternative Count.” The offence of failing to prevent a felony is not an alternative charge to that of breaking into a building and that count fails by the wayside on that account. 8. Secondly, none of the prosecution witnesses stated that the accused was employed as a guard at the facility. PW 1 said that although he was a member of the project, he did not know in what capacity the accused was appearing in the project. He however maintained that the Page 3 of 6 SO E080/24

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accused used to open and close the facility’s door. PW 2, who was the chairman of the project stated on cross-examination that it was agreed that the accused would protect the assets though he was not contracted as a guard at the premises. 9. Lastly, even if the accused had the responsibility to fully or partially protect the protect the property, and even if count 2 (“alternative count”) had been properly drafted, the evidence on record does not support the charge. Section 292 of the Penal Code provides as follows: 392. Neglect to prevent felony: Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof is guilty of a misdemeanour. 10. That section presupposes that anyone, not necessarily a guard, who being aware that a person or persons have designed to commit a felony and fails to use any and all reasonable means to prevent the commission or completion of that offence shall be guilty of failing to prevent the offence. There was no iota of prosecution testimony that the accused was aware of a scheme, plan or attempt to steal from the premises and failed to prevent it. Once again on that basis that count fails in its entirety. 11. Turning now to the main count or first count as it is, Section 306 (a) of the Penal Code prescribes thus: “306. Breaking into building and committing felony Any person who— (a) breaks and enters a schoolhouse, shop, warehouse, store, office, countinghouse, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling house and occupied with it but is not part of it, or any building used as a place of worship, and commits a felony therein; or …” Page 4 of 6 SO E080/24

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12. In view of the above and taking into account the evidence on record, the case at hand turns on the simple issue that the accused had a set of keys to the building that was stolen from. That the door and the lock was intact and therefore he was the only one who could have accessed it. The Black’s Law Dictionary 9th edition while quoting Commonwealth –Vs- Webster, 59 Mass. (5 Cush) 295,320 (1850) (Per Lemuel Shaw. J. ) defines reasonable doubt as follows; “…..it is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of Jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.” 13. With tremendous respect to the Prosecution, that position taken by the investigating officer that no other person could have committed the offence is highly presumptive and not based on any evidence. No witness saw the offence take place. The accused was never found in possession of the stolen items. It is not even known when the offence took place. The accused is the one who reported the missing items to the project members. 14. Of critical concern is the fact that there was another set of keys that was held by the treasurer. Even if we were to take it that the treasurer was unwell during the said period, it cannot be ruled out that anyone could have accessed those keys from her place and committed the felony. Therefore, if the accused were to be placed on his defence and he elected to keep quiet, the court would not convict him for the charges he faces. CONCLUSION: 15. Accordingly, and by dint of Section 210 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya, the accused person is hereby acquitted of all the charges he faces. Dated this Courts. Page 5 of 6 10th day of NOVEMBER, SO E080/24 2025 at Wamunyu Law

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HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: Accused: Present Prosecution Counsel: Mati Court Assistant: Letiktik B Page 6 of 6 SO E080/24

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