Republic v Wanyonyi & 3 others (Criminal Case E462 of 2025) [2025] KEMC 394 (KLR)

not in court broke into the household of James Oduor Othieno and stole from therein 20 litre plastic pail, two 4x6 matresses and two sufurias all valued at Kshs. 21,000/= the property of James Oduori Othieno. The accused person pleaded not guilty to the charge hence the prosecution called three (3) witnesses who testified as follows: - EVIDENCE Prosecution witnesses testified as follows: PW1 James Oduor Otieno stated that on the night of 3/4 th July 2022, he slept in his house. He woke up the following morning only to find his son’s (Paul Ngeresa) house having been broken into. He realized that two mattresses, a bag, sufuria, and plastic pails were missing from his son’s house. He informed the village elder about the incident. Later on, the village elder referred him to Kiminini Police Station where some items that had been recovered were. He went to Kiminini Police Station where he identified his son’s two mattresses, a bag, a padlock and sufurias. He took police officers to the scene where the police officers took photos of the scene. Police officers told him that the accused person had been found with those stolen items. PW2 No. 97501 PC Linus Kiprop is a police officer attached to Kiminini Police Station and the investigations officer herein. It was his testimony that Kitale CMC CRC. No. E2046 of 2022 Page 2 of 16 Fanuel Mwanzu Judgment

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on 04th July 2022 at around 0550hrs he received information from members of the public that a person had been seen with suspected stolen property. He left the police station while in the company of PW3 then headed to the accused person’s home. They conducted a search in the accused person’s house where they recovered two 4x6 mattresses, a white water pail, and four (4) sufurias. One of the mattresses was found in a maize plantation near the accused person’s house. The recoveries were loaded in the police vehicle which was driven to the police station. Later that day PW1 identified the items recovered from the accused person’s home as the items that had been stolen from his son’s house. PW1 led them to the scene where they took photos. He also produced the scene photos (Pexb. 1(a)), and the certificate of print (Pexb. 1 (b)). During cross-examination, he added that the accused person’s neighbour informed him over phone that suspected stolen property were in the accused person’s house. The said neighbour did not record his statement since he feared for his life. He also said that they recovered four (4) sufurias from the accused person’s house. PW3 No. 77700 Sgt. Byron Nabiswa is a police officer attached to Kiminini Police Station. On 04th July 2022 at around 0550hrs he visited the accused person’s home while in the company of PW2. They recovered two Kitale CMC CRC. No. E2046 of 2022 Page 3 of 16 Fanuel Mwanzu Judgment

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4x6 mattresses, 2 sufurias, and a 20 litre paint pail in the accused person’s house. They arrested the accused person. In the course of the day, PW1 went to the police station and reported that his son’s house had been broken into and household items stolen. He identified items recovered from the accused person’s house as the items that had been stolen from his son’s house. The Accused Person’s Case The accused person gave sworn testimony. He denied committing the offence. He stated that on 04 th July 2022 at around 0600hrs, two police officers went to his house and demanded to conduct a search for stolen property. They conducted the search but did not make any recovery. The police officers then arrested him and thereafter arraigned him on 05 th July 2022 for the offence herein. ANALYSIS AND DETERMINATION This court has looked at the charges preferred, the evidence adduced by the prosecution witnesses, and the accused person’s defence. The offence of burglary is set out under section 304(2) of the Penal Code as follows: 304. Housebreaking and burglary Kitale CMC CRC. No. E2046 of 2022 Page 4 of 16 Fanuel Mwanzu Judgment

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(1) Any person who— (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years. (2) If the offence is committed in the night, it is termed burglary, and the offenderis liable to imprisonment for ten years. The foregoing shows that for the prosecution to prove the offence under section 304 (2) of the Penal Code set out above, the prosecution must prove beyond reasonable doubt that the Accused Persons broke into a building, tent or vessel used as a dwelling house, and that the breaking into must have been done at night. The second count facing the Accused Persons is set out under section 279 (b) of the Penal Code provides as follows in this regard: “279. Stealing from the person; stealing goods in transit, etc. Kitale CMC CRC. No. E2046 of 2022 Page 5 of 16 Fanuel Mwanzu Judgment

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If the theft is committed under any of the circumstances following, that is to say — (a) if the thing is stolen from the person of another; (b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; (c) if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; (d) if the thing stolen is attached to or forms part of a railway; (e) if the thing is stolen from a vessel which is in distress or wrecked or stranded; f) if the thing is stolen from a public office in which it is deposited or kept; (g) if the offender, in order to commit the offence, opens any locked room, box, vehicle or other receptacle, by means of a key or other instrument, the offender is liable to imprisonment for fourteen years.” Kitale CMC CRC. No. E2046 of 2022 Page 6 of 16 Fanuel Mwanzu Judgment

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The ingredients of count 2 herein obligate the prosecution to prove beyond reasonable doubt that the Accused Persons stole property from a dwelling house. The evidence led by the prosecution witnesses sought to prove that the Accused Persons broke into a shop/store. This begs the question whether a shop/store herein was a dwelling house at the time of the incident herein. Section 4 of the Penal Code defines a dwelling house to include any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwellinghouse is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise. Clearly, from the definition above, a shop/store which is not used as a dwelling place like in this case, cannot, by any stretch of imagination, be termed as a dwelling house. therefore, it follows that counts 1 and 2 are not properly before this court. Where a shop /store is alleged to have been broken into, the proper charge that the prosecution ought to bring against an Accused Person is a charge of Kitale CMC CRC. No. E2046 of 2022 Page 7 of 16 Fanuel Mwanzu Judgment

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breaking into a shop/store set out under section 306 of the Penal Code in the following terms:“306 Any person who— (a) breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, 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 (b) breaks out of the same having committed any felony therein, is guilty of a felony and is liable to imprisonment for seven years.” It is against this backdrop that this court seeks to establish whether it can proceed to determine whether the Accused Persons committed the offence of breaking into a shop/store and committing a felony contrary to section 306 (a) of the Penal Code. The answer to the above question lies in section 179(2) of the Criminal Procedure Code which states: Kitale CMC CRC. No. E2046 of 2022 Page 8 of 16 Fanuel Mwanzu Judgment

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"179(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it" The section above shows that an Accused Person can be convicted of a minor/cognate offence related to the offence facing him even though he was not charged with that minor/cognate offence. The Black’s Law Dictionary 9th Edition page 1186 defines a cognate offence as: “A lesser offence that is related to the greater offence because it shares several of the elements of the greater offence and is of the same class or category.” In David Mwangi Njoroge v Republic [2015] eKLR it was held that: “...the issue of substituting an offence with the one for which the evidence is established is not an obvious case. The offence substituted must be cognate and minor to the offence that an accused was initially charged with.” Clearly, guided by the authorities above, count 1 and count 2 facing the Accused Persons are related to the offence of breaking into a shop/store and committing a felony contrary to section 306 (a) of the Penal Code. Kitale CMC CRC. No. E2046 of 2022 Page 9 of 16 Fanuel Mwanzu Judgment

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Count 1 carries a sentence of ten (10) years imprisonment on conviction, while count 2 carries a sentence of fourteen (14) years imprisonment on conviction. On the other hand, the offence of breaking into a shop/store and committing a felony contrary to section 306 (a) of the Penal Code attracts a sentence of seven (7) years imprisonment on conviction. In the circumstances, this court holds and finds that the offence set out in section 306 (a) of the Penal Code is cognate and minor to offences in count 1 and count 2 herein hence this court can proceed to determine whether the prosecution proved beyond reasonable doubt that the Accused Persons committed the offence of breaking into a shop and committing a felony contrary to section 306 (a) of the Penal Code. PW1 and PW2 testified that on the date of the incident, they locked their shop at Chwele market that evening before retiring to their home. PW2 went to open the business premises in the morning of the following day, only to find their shop’s back door and back wall damaged. Their property listed in the charge sheet was also missing. The other prosecution witnesses corroborated PW1 and PW2’s testimonies that their shop at Chwele market had been broken into. PW4 placed before this court scene photos (Pexh.1 (a) – (c)) and a Certificate of Print (Pexh.4) showing the breaking into PW1’s shop. To that extent, the question of Kitale CMC CRC. No. E2046 of 2022 Page 10 of 16 Fanuel Mwanzu Judgment

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whether PW1’s shop was broken into on the night of the incident was proved beyond reasonable doubt. On the question of whether the Accused Persons were the people who broke into PW1’s shop on the night of the incident, the prosecution sought to rely on the recoveries made from the 1st and the 3rd Accused Person, and the Accused Persons reported own admissions that they broke into PW1’s shop and stole therefrom. The investigations officer (PW4) testified on how beans, a laptop, and a weighing machine were recovered from the 1 st Accused Person’s house. He added that beans were also recovered from the 3rd Accused Person’s house. PW4’s testimony on the recoveries made from the 1 st and the 3rd Accused Person’s house was not impeached by the Accused Persons. PW1 and PW2 positively identified the property recovered from the 1 st and the 3rd Accused Person as their property which had been stolen from their shop on the date of the incident. It should be remembered that the recoveries were made just some few hours after the incident. It is also noteworthy that none of the prosecution witnesses saw the Accused Person’s breaking into PW1’s shop. The foregoing shows that the prosecution’s case was grounded on the doctrine of recent possession. Kitale CMC CRC. No. E2046 of 2022 Page 11 of 16 Fanuel Mwanzu Judgment

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In determining whether the doctrine of recent possession can be invoked in the circumstances of this case, this court refers to the decision in Isaac Ng’ang’a Kahiga & another vs. Republic [2006] eKLR, where the Court of Appeal (Tunoi, Bosire & Githinji, JJ.A.) opined thus: “It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.” Given that the 1st and 3rd Accused Persons were found in possession of the property that PW1 and PW2 positively identified as their property which was stolen from their store on the date of the incident, the evidential burden, not the burden of proof, shifted to the 1 st and 3rd Accused Persons to give a Kitale CMC CRC. No. E2046 of 2022 Page 12 of 16 Fanuel Mwanzu Judgment

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reasonable explanation on how they got into possession of PW1’s stolen property. The 3rd Accused Person simply questioned whether he lacked the capacity to have beans in his house. this question was answered by PW2 was testified that the recovered beans were no ordinary beans but Canadian beans which she had bought in Trans-Nzoia for sale. One may also wonder how the 1 st Accused Person who is not engaged in any business requiring the use of a weighing scale was found with a weighing scale in his house just some hours after a weighing scale had been stolen from PW1’s shop. Simply put, the 1st and 3rd Accused Persons did not account for their possession of the stolen items that were recovered from them. In view of the above, this court holds and finds that the doctrine of recent possession is applicable in this case PW4 admitted that nothing was recovered from the 2nd Accused Person’s house. He also stated that the 2nd Accused Person was implicated by the 3 rd Accused Person. PW3 and PW4 testified that the 4 th Accused Person was arrested after being found with five kilos of the recovered beans that he admitted to having received from the other Accused Persons after the incident. The 4th Accused Person did not impeach the evidence led by the prosecution that he was found with stolen beans. The 4 th Accused Person having witnessed the breaking into of PW1’s shop, he was sufficiently aware that the Kitale CMC CRC. No. E2046 of 2022 Page 13 of 16 Fanuel Mwanzu Judgment

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five kilos of maize he received from the other Accused Persons and retained was stolen property. DW4’s sworn testimony before this court detailed how the 1 st, 2nd, and 3rd Accused Person broke into and stole property from PW1’s store. This court has sufficiently warned itself that DW4’s testimony is the testimony of a coaccused. However, the law in this jurisdiction is that the testimony of a co-accused can be used to convict the other Accused Persons if such testimony is corroborated by the testimony of the other prosecution cases. DW4’s testimony on how the 1st – 3rd Accused Persons broke into PW1’s shop and stole property therefrom was corroborated by PW4’s testimony. It is against this background that this court finds no reason to disbelieve DW4’s account of how the 1st – 3rd Accused Persons jointly broke into PW1’s shop and stole property therefrom. Accused Person’s Defence The 1st – 3rd Accused Persons simply denied committing the offences herein. The 4th Accused Person on the other hand gave a detailed account of how he witnessed the 1st – 3rd Accused Persons breaking into PW1’s shop and stealing therefrom. Having duly considered the above defences put forth by the 1 st – 4th Accused Persons, this court finds that those defences were mere denials that did not Kitale CMC CRC. No. E2046 of 2022 Page 14 of 16 Fanuel Mwanzu Judgment

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cast any reasonable doubt on the prosecution’s case that the 1 st – 3rd Accused Persons broke into PW1’s shop on the date of the incident and stole therefrom. The said defences are, thus, dismissed in their entirety. DETERMINATION The upshot of the foregoing is that: a) The 1st – 3rd Accused Persons are convicted under section 215 of the Penal Code for the offence of breaking into a shop and committing a felony contrary to section 306 (b) of the Penal Code. b) The alternative charge of handling stolen goods contrary to section 322 of the Penal Code is moot against the 1st – 3rd Accused Person c) The 4th Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of handling stolen goods contrary to section 322 of the Penal Code Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 16th day of September 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Kitale CMC CRC. No. E2046 of 2022 Page 15 of 16 Fanuel Mwanzu Judgment

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Accused Persons Mr. Maroro for ODPP C/A: Mr. Rioba Kitale CMC CRC. No. E2046 of 2022 Page 16 of 16 Fanuel Mwanzu Judgment

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