Republic v Mukitang’a (Criminal Case E468 of 2025) [2025] KEMC 437 (KLR)

PW1 PW4 No. 92622 CPL Samson Ipanoi investigated this case while stationed at Chwele Police Station. He stated on 21st April 2025 at around 1010hrs, PW1 reported to the police station that his cereal shop at Chwele market had been broken into. He visited the scene while in the company of other police officers and confirmed as much. Investigations ensued when police officers received intelligence that the 3 rd Accused Person had suspected stolen beans in Musese area. They proceeded to the 3rd Accused Person’s house where they recovered beans. The 3 rd Accused Person mentioned the 2 nd Accused Person, implicating him in the incident. The 2nd Accused Person implicated the 4th Accused Person who in implicated the 1st Accused Person. He accompanied police officers to the 1 st Accused Person’s house where two sacks of maize, a Dell laptop, and a weighing scale were recovered. He produced the scene photos, three sacks of beans, one sack of maize, exhibit memo, a certificate of electronic print, a Dell laptop, and a Hanson weighing scale as exhibits. On cross-examination he stated that nothing was recovered from the 2 nd Accused Person’s home since he had sold the stolen items. He also stated that the 4th Accused Person had told the police officers that the other Accused Persons had given him five kilos of beans during the incident. Prosecution’s and Defence’s Submissions ANALYSIS AND DETERMINATION This court has looked at the charges preferred, the evidence adduced by the prosecution witnesses, and the Accused Persons’ defence. This court will now Kitale CMC CR. No. E4944 of 2022 Page 2 of 16 Nelias Kinywa & Anor Ruling

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proceed to determine whether the prosecution discharged its burden of proving the case against the Accused Persons beyond reasonable doubt. ANALYSIS AND DETERMINATION The term prima facie is defined by the Black’s Law Dictionary 18th edition as: ” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” In Mozley and Whiteley’s Law Dictionary 11th Edition prima facie case is defined as: “A litigating party is said to have a prima facie case when the evidence in his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case then is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side.” Courts in our jurisdiction have heavily relied on the legal principles in the celebrated case of R.T. Bhatt v Republic [1957] EA 332 – 334 & 335 to define what constitutes a prima facie case. The court of Appeal of Eastern Africa in the Bhatt case (supra) stated thus: “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 case, the case is merely one which on fully consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence 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 Kitale CMC CR. No. E4944 of 2022 Page 3 of 16 Nelias Kinywa & Anor Ruling

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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.” In Ronald Nyaga Kiura vs. Republic [2018] eKLR at paragraph 22 it was stated as follows: “It is important to note that at the close of prosecution, what is required in law at this stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” The legal principles which run through the authorities cited above are that for a prima facie case to be established, the prosecution must lead sufficient evidence capable of establishing the ingredients of the offence the accused is charged with. Secondly, a mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence. Mere suspicion, no matter how strong is not enough. Lastly, evidence adduced by the prosecution must be that which a reasonable tribunal properly directing its mind would convict the accused in absence of any explanation when called upon to answer or put on his defence. For an accused person to be put on their defence for the offence under Kitale CMC CR. No. E4944 of 2022 Page 4 of 16 Nelias Kinywa & Anor Ruling

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The offence of burglary is set out under section 304(2) of the Penal Code as follows: 304. Housebreaking and burglary (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. If the theft is committed under any of the circumstances following, that is to say — Kitale CMC CR. No. E4944 of 2022 Page 5 of 16 Nelias Kinywa & Anor Ruling

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(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.” 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 the shop/store herein was a dwelling house at the time of the incident. 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 Kitale CMC CR. No. E4944 of 2022 Page 6 of 16 Nelias Kinywa & Anor Ruling

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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 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 and property stolen therefrom, the proper charge that the prosecution ought to bring against an Accused Person is a charge of breaking into a shop/store and committing a felony set out under section 306 (a) 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.” Kitale CMC CR. No. E4944 of 2022 Page 7 of 16 Nelias Kinywa & Anor Ruling

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The variance in the particulars of the charges herein with the evidence led by the prosecution witnesses is construed to mean that the prosecution is presumed to have intended the Accused Person to defend himself against an incident that did not take place on the date specified in the charges facing him. When faced with such a scenario, the High Court in the case of S C N v Republic [2018] eKLR quoted the Court of Appeal in Peter Ngure Mwangi v Republic [2014] eKLR which quoted the Isaac Omambia case with approval thus stating that: “A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, and Evidence and Practice (40th Edn), page 52 paragraph 53, this Court stated in YONGO v R, [198] eKLR that: “In England it has been said: An indictment is defective not only when it is bad on the face of it, but also: (i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein, (ii) When for such reason it does not accord with the evidence given at the trial.” (Emphasis added) Guided by the authority above, this court holds that the charge sheet before this court is defective. The defect in the charge herein cannot be cured under section 382 of the Criminal Procedure Code. Kitale CMC CR. No. E4944 of 2022 Page 8 of 16 Nelias Kinywa & Anor Ruling

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Placing the accused persons on their defence, based on the evidence on record, will be akin to calling upon them to clear doubts in the prosecution case. This court associates itself with the position adopted by the High Court of Malaya in Criminal Appeal No. 41LB-202-08/2013 – Public Prosecution vs. Zainal Abidin B. Maidin & Another that: “It is also worthwhile adding that the defence ought not to be called merely to clear or clarify doubts. See Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1; [2011] 1 CLJ 805. Further, in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16 Sharma J had occasion to observe: ‘It is the duty of the Prosecution to prove the charge against the accused beyond reasonable doubt and the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer.’” The Court of Appeal in Peter Ngure Mwangi v Republic [2014] KECA 405 (KLR) In resolving this, the Court is guided by the case of DANIEL MUHIA GICHERU V R, CR.A NO. 90 OF 2007 (UR), where this Court addressed itself on the number of witnesses the prosecution is obliged to call as follows: “The often trodden principle of law is that the prosecution is obliged to prove its case against an accused person beyond any reasonable doubt. How many witnesses is it expected to call to satisfy that burden? In BUKENYA AND OTHERS V. UGANDA [1972] EA 349 the Court of Appeal for Eastern Africa held that the prosecution has the discretion to decide as to who are the material witnesses. That Court, however, qualified that general principle by stating that: “…. There is a duty on the Director to call or make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent …. While the Director is not required to call a superfluity of witnesses, if he calls evidence which is barely adequate and it appears that there were other witnesses available who were not called, the court is entitled, under the general law of evidence, to Kitale CMC CR. No. E4944 of 2022 Page 9 of 16 Nelias Kinywa & Anor Ruling

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draw an inference that the evidence of those witnesses, if called, would have been or would have tended to be adverse to the prosecution case.” In our view, the adverse inference can only be made where the evidence tendered by the prosecution is “barely adequate”. The analysis above shows that the prosecution has failed to establish a prima facie case requiring the accused persons to be placed on their defence. Consequently, the accused persons are hereby acquitted of the offence of stealing contrary to section 268 (1) as read with section 275 of the Penal Code. The accused persons are hereby set at liberty unless otherwise lawfully held. It is so ordered. 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, and proceed to convict the Accused Persons if the evidence on record proves the said charge. The answer to the question above lies in section 179(2) of the Criminal Procedure Code, which states: "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 (s) facing him, even though he was not charged with that minor/cognate offence. Kitale CMC CR. No. E4944 of 2022 Page 10 of 16 Nelias Kinywa & Anor Ruling

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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. 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 Kitale CMC CR. No. E4944 of 2022 Page 11 of 16 Nelias Kinywa & Anor Ruling

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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 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 a 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 CR. No. E4944 of 2022 Page 12 of 16 Nelias Kinywa & Anor Ruling

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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 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 who 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 Kitale CMC CR. No. E4944 of 2022 Page 13 of 16 Nelias Kinywa & Anor Ruling

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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, was sufficiently aware that the five kilos of beans he received from the other Accused Persons and retained were stolen property. DW4’s sworn testimony before this court detailed how the 1 st, 2nd, and 3rd Accused Persons jointly broke into and stole property from PW1’s store. This court has sufficiently warned itself that DW4’s testimony is the testimony of a co-accused. 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 other prosecution cases. DW4’s testimony on how the 1st – 3rd Accused Persons jointly 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. Kitale CMC CR. No. E4944 of 2022 Page 14 of 16 Nelias Kinywa & Anor Ruling

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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 – 3rd Accused Persons, this court finds that those defences were mere denials that did not cast any reasonable doubt on the prosecution’s evidence that the 1 st – 3rd Accused Persons jointly 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 (a) 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 CR. No. E4944 of 2022 Page 15 of 16 Nelias Kinywa & Anor Ruling

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Accused Persons Mr. Maroro for ODPP C/A: Mr. Rioba Kitale CMC CR. No. E4944 of 2022 Page 16 of 16 Nelias Kinywa & Anor Ruling

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