Republic v Wekesa (Criminal Case E733 of 2025) [2025] KEMC 404 (KLR)

The evidence led before this court was as summarized hereunder:EVIDENCE Prosecution’s Case PW1 No. 230636 PC Victor Owili of Mayanja Police Station testified that on 14th June 2025 while on routine patrol with PC Benard Nuli, he received a call from CPL Odhiambo requesting them to go effect the Accused Person’s arrest in Nambwa A village. They proceeded to Nambwa A village where they arrested the Accused Person for being in possession of a black/grey Aucma TV and a Sonar decoder S/No. HDF20190801989, which were suspected to be stolen property since the Accused Person could not prove ownership of those items. PW2 No. 53408 CPL Kennedy Ochieng Odhiambo stationed at Mayanja Police Station stated that on the date of the incident while on routine patrol within Mayanja town he met the Accused Person who offered to sell him the Aucma TV (Pexh.1) at Kshs. 3,000/=. He suspected that the TV was stolen property. He tricked the Accused Person to a nearby home on the pretext that they were going to test if the TV was working. It is during that alleged testing of the TV that he called PW1 and PC Nuli to the scene to help in arresting the Accused Person since the Accused Person failed to prove ownership of the Aucma TV and the Sonar TV decoder (Pexh.2). Kitale CMC CRC. No. E1104 of 2023 Page 2 of 7 Gideon Wekesa Judgment

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The Accused Persons’ Case After the close of the prosecution's case, this court made a finding that the prosecution had established a prima-facie case against the Accused Person. Consequently, the Accused Person’s rights under section 211 of the Criminal Procedure Code were explained to him in Kiswahili. The Accused Person gave sworn testimony. He did not call any witnesses. His testimony was that on the date of the incident, he had a financial problem hence he decided to go sell his Aucma TV and Sonar TV decoder at the nearby market only to be arrested by police officers. He added that he had bought the said TV and decoder from an auctioneer sometime in 2015 and that he lost the items’ auction purchase receipts. ANALYSIS AND DETERMINATION The ingredients of the offence of being in possession of suspected stolen property as per section 323 of the Penal Code are as follows:Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour. Kitale CMC CRC. No. E1104 of 2023 Page 3 of 7 Gideon Wekesa Judgment

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The offence herein is usually read together with section 26 of the Criminal Procedure Code which authorises police officers to stop, search, and detain individuals reasonably suspected of possessing or conveying stolen property. In Koech v Republic [1968] EALR 109, it was clarified that under Section 323, mere possession of suspected stolen property does not constitute the offence; rather, it is the failure to satisfactorily explain such possession that gives rise to criminal liability. Dr. Kavedza J in Mwaura & 2 others v Republic (Criminal Appeal 48 of 2024) [2025] KEHC 4983 (KLR) expressed herself as follows regarding this offence: “Once possession of suspected stolen property was established, the burden shifted to the 2nd appellant to offer a satisfactory account. However, in his defence, the 2nd appellant merely admitted possession without producing any supporting evidence, such as receipts or witness testimony…” The foregoing shows that the prosecution in this matter was duty bound to prove beyond reasonable doubt that the Accused Person was found in possession of suspected stolen property but failed to give a satisfactory explanation of how he came into possession of the alleged suspected stolen property. Kitale CMC CRC. No. E1104 of 2023 Page 4 of 7 Gideon Wekesa Judgment

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The Accused Person admitted having been found in possession of Pexh.1 and Pexh.2 by PW1 and PW2. The moment the Accused Person was found in possession of the suspected stolen property (Pexh.1 & 2), the evidential burdern not the burden of proof shifted to him to give a satisfactory explanation of how he got into possession of the suspected stolen property. Accused’s Defence/Explanation This court has duly considered the Accused Person’s explanation/defence. He testified that he had bought the suspected stolen TV through an auction and that he had lost the auction purchase receipts. It is noteworthy that the Accused Person did not cross-examine the prosecution witnesses along the lines of whether he bought the suspected stolen property herein through an auction. He only raised the issue of the alleged auction during his defence. This court takes judicial notice that one may lose electronics purchase receipts. However, even in the absence of the alleged receipts, nothing prevented the Accused Person from calling the auctioneer who reportedly sold to him the suspected stolen property or any other witness who could corroborate his defence. Kitale CMC CRC. No. E1104 of 2023 Page 5 of 7 Gideon Wekesa Judgment

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In the circumstances, this court is of the considered view that the Accused Person’s Defence was a mere afterthought that did not cast any reasonable doubt on the prosecution’s case; thus, the same is dismissed in its entirety. The long and short of it all is that the Accused Person failed to give a satisfactory explanation on how he got into possession of the suspected stolen property (Pexh.1 & 2). DETERMINATION The upshot of the foregoing is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of being in possession of suspected stolen property contrary to section 323 of the Penal Code. Judgment read, signed and delivered in open Court at Bungoma this 10th day of September 2025 T. O. OMONO RESIDENT MAGISTRATE In the presence of: C/A Mr. Rioba Kitale CMC CRC. No. E1104 of 2023 Page 6 of 7 Gideon Wekesa Judgment

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Accused Person Mr. Maroro for the ODPP Kitale CMC CRC. No. E1104 of 2023 Page 7 of 7 Gideon Wekesa Judgment

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