Republic v Keya (Criminal Case E045 of 2025) [2025] KEMC 405 (KLR)

When Kevin demanded for his motorbike, he went with PW2 to the Accused Person’s workshop only to find the motorbike’s engine, side cover, battery, and ignition key missing. He reiterated that the damaged motorbike photos were taken at the Accused Person’s place of work. PW2 Elphas Ochieng Odundo stated that sometime in October 2024, he took motorbike registration number KAV 716 U for the repair of a kick shaft. He bought a new kick shaft, but it failed to fit on the motorcycle. He left the motorbike in the Accused Person’s custody for the Accused Person to source a suitable spare part. He later on went to pick the motorbike from the Accused Person’s place of work only to find the motorbike missing side covers, engine, ignition keys, and a battery. He reported the matter to the police. Police officers visited the Accused Person’s place of work and took photos of the damaged motor cycle. He added that the Accused Person was well known to him since he had repaired a motorbike for him on several occasions before this incident. PW3 No. 218566 Ssgt. John Chabasi of Ekitale Patrol Base investigated this case. He stated that PW1 and PW2 told him that they had handed over motor cycle registration number KAV 716 B (sic) to the Accused Person to repair a faulty shaft sometime in October 2024. He added that when the complainant later on went to pick the motorcycle, he realized that the parts set out in the charge sheet were missing. The Accused Person reportedly told the complainant that the missing parts were in his house in Ekitale. Kitale CMC CR. No. E325 of 2024 Page 2 of 9 Mourice Masinde Judgment

page 2 of 9

The Accused Person began leading the complainant to Ekitale for recovery of the missing parts only for him to lead the complainant to Ekitale Patrol Base where he admitted having stolen the missing parts. He produced the damaged motorcycle photos and the scene photos (Pexh. 1(a)-(c)) and the certificate of print (Pexh,2) as exhibits. In cross-examination, he stated that the motorcycle’s registration number was KAV 716 U. He clarified that 616 set out in the charge sheet was a typo. Accused Person’s Case When this court placed the Accused Person on his defence, he gave sworn testimony. He did not call any witnesses. The Accused Person stated that he is a motorcycle and generator repair technician. He denied committing the offence herein. He took issue with the failure by PW1 to tell the motorcycle’s frame number and the failure by the prosecution to produce the motorcycle in court. ANALYSIS AND DETERMINATION This court has carefully considered the evidence on record. This court is now proceeds to determine whether or not the Accused Person committed the offence facing him. Stealing is defined in Section 268 of the Penal Code 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 special owner thereof, any property, is said to steal that thing or property. (2)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:- Kitale CMC CR. No. E325 of 2024 Page 3 of 9 Mourice Masinde Judgment

page 3 of 9

(a)an intent permanently to deprive the general or special owner of the thing of it; (b)an intent to use the thing as a pledge or security; (c)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (d)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; (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; and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question. (3)When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it. (4)When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered. (5)A person shall not be deemed to take a thing unless he moves the thing or causes it to move. Section 275 of the Penal Code sets out the offence of stealing as follows: Kitale CMC CR. No. E325 of 2024 Page 4 of 9 Mourice Masinde Judgment

page 4 of 9

Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years. In Robert Onchwari Orina & another vs Republic (2021) eKLR, Nyakundi J held that:-“………….For an accused person to be convicted of the offence under Section 268 of the Penal Code, its incumbent upon the prosecution to proof that he or she dealt with the property of the complainant fraudulently without any claim of right or converts it into his or her own use, other than the general or special owner thereof. That intention is executed in a manner to deprive the rightful owner of the property permanently.” Having set out the law on the offence of stealing, it behooves this court to determine if the prosecution proved beyond reasonable doubt the above ingredients of the offence of stealing. PW1 and PW2 led evidence on the ownership of motorcycle registration number KAV 716 U. Whereas PW1 stated that the motorcycle in question belonged to Kevin Barasa, PW2 stated that the said motorcycle was handed to him by PW1. The particulars of the offence herein stated that the subject motorcycle belonged to PW1. The foregoing shows that whereas Kevin Barasa was the motorcycle’s owner, PW1 was the subject motorcycle’s special owner at the time of the incident. Therefore, the prosecution’s failure to call Kevin Barasa as a prosecution witness was not fatal to the prosecution’s case. The foregoing shows that the prosecution proved beyond reasonable doubt that the motorcycle in question belonged to PW1 at the time of the incident. Kitale CMC CR. No. E325 of 2024 Page 5 of 9 Mourice Masinde Judgment

page 5 of 9

It is undisputed that the items detailed in the charge sheet are items capable of being stolen. On whether the Accused Person permanently deprived PW1 the items set out in the charge sheet, PW1 and PW2’s testimony shows that motorcycle registration number KAV 716 U was handed over to the Accused Person for the repair of the kick shaft. The Accused Person did not present any evidence to controvert that testimony. Therefore, it follows that the subject motorcycle was handed over to the Accused Person while intact save for the malfunctioned kick shaft. The photos placed before this court (Pexh. 1 (a)-(c)) show that by the time the motorcycle in question was recovered from the Accused Person’s workshop, that motorcycle was a shell. The motorcycle parts set out in the charge sheet were missing. Bearing in mind that the motorcycle was all along in the Accused Person’s custody, the evidential burden shifted to the Accused Person to state where the motorcycle’s missing parts were. The question of when the evidential burden shifts to the Accused Person was eloquently explained by the Court of Appeal in Dorcas Jemutai Sang v Republic(2018)eKLR held that:“…But if the accused person claims that the existence of some circumstances or facts bring the case against him within any exception or exemption and he/she has such knowledge, he/she has the burden to prove the same…” Similarly, the Court of Appeal in Boniface Okerosi Misera & another vs. Republic (2021) eKLR, cited the case of Douglas Thiong’o Kibocha vs. Republic [2009] eKLR in which it was held thus:Kitale CMC CR. No. E325 of 2024 Page 6 of 9 Mourice Masinde Judgment

page 6 of 9

“When Parliament enacted section 111 (1), above, it must have recognized that there are situations when an accused person must be called upon to offer an explanation on certain matters, especially within his knowledge. Otherwise, the prosecution would not be able to conduct full investigations in such cases and the accused in the event, will escape punishment even when the circumstances suggest otherwise. Section 111 (1), above, places an evidential burden on an accused to explain those matters which are especially within his own knowledge...” The foregoing begs the question of whether the Accused Person discharged the evidential burden of stating the circumstances under which the motorcycle in question became a shell and/or the whereabouts of the missing motorcycle parts. The Accused Person, in a bid to recover the missing motorcycle parts, told PW1 and PW2 to accompany him to Ekitale for the recovery of the said missing parts. Instead of recovering those missing motorcycle parts, the Accused Person surrendered to Ekitale Police Patrol Base where he reportedly admitted vandalizing the subject motorcycle. That being the case, this court finds and holds that the Accused Person failed to discharge the evidential burden of stating the circumstances under which the motorcycle in question became a shell and/or the whereabouts of the missing motorcycle parts. It is also worth noting that the subject motorcycle’s missing parts have neither been recovered nor returned by the Accused Person to the complainant to date. Kitale CMC CR. No. E325 of 2024 Page 7 of 9 Mourice Masinde Judgment

page 7 of 9

The foregoing shows that the Accused Person took the missing motorcycle parts set out in the charge sheet with the intention of permanently depriving the complainant of the same. The Accused Person’s Defence This court has duly considered the Accused Person’s defence. The Accused Person took issue with the difference in the motorcycle’s registration number set out in the charge sheet and the one in the photos placed before this court. That discrepancy was well explained by PW3, who stated that it was a typo. It is this court’s view that the said typo did not prejudice the Accused Person in any way since the Accused Person was sufficiently aware of the charge facing him. On the Accused Person’s contention that the motorcycle in question was not produced in this court, it should be noted that the motorcycle’s photos placed before this court were sufficient to prove the prosecution’s case to the required standards. For the reasons above, the Accused Person’s defence is dismissed in its entirety for being 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 stealing contrary to section 268 as read with section 275 of the Penal Code . Judgment read, signed and delivered in open Court at Bungoma this 18th day of June 2025 MAGISTRATE In the presence of: Kitale CMC CR. No. E325 of 2024 Page 8 of 9 Mourice Masinde Judgment

page 8 of 9

Accused Person Mr. Maroro for ODPP C/A: Albert Kitale CMC CR. No. E325 of 2024 Page 9 of 9 Mourice Masinde Judgment

page 9 of 9