Republic v Wanyembi (Criminal Case E447 of 2025) [2025] KEMC 438 (KLR)

All the charges herein were denied by the Accused Person, prompting the prosecution to call witnesses in a bid to prove the charges herein beyond reasonable doubt. The evidence led before this court by the prosecution and the defence is summarized hereunder. EVIDENCE Prosecution’s Case PW1 Dickson Wanjala Wamalwa testified that on 19th April 2025 he arrived at his place of work at 0800hrs only to find out that his store has been broken into the items set out in the charge sheet stolen. He reported the incident to the police when investigations ensued. Later on two boys were arrested at a scrap metal shop trying to sell the items set out in the charge sheet. The two boys led police officers to the Accused Person who had reportedly given them a diff housing, a clutch booster, a shock absorber, and an oil pump to sell. He identified those items as part of the items that had been stolen from his garage. He added that the Accused Person used to work near his garage in Chwele. PW2 Samuel Wafula Wasike is a bodaboda rider within Chwele. He recalled that on 19th April 2025 at around 1600hrs he met the Accused Person carrying a sack. The Accused Person told him to carry him to his home. He carried the Accused Person to his home. the Accused Person told him to go back later for his pay. He went to the Accused Person’s home later that evening to pick his money when the Accused Person requested him to take him to Katumbo’s scrap metal shop. They proceeded to Katumbo’s scrap metal shop with the Accused Person carrying a luggage in a sack. Katumbo locked them together with PW3 in a room and called the police, who arrested them for stealing the items in the sack. In cross-examination, Kitale CMC CRC. No. E1104 of 2023 Page 2 of 9 Gideon Wekesa Judgment

page 2 of 9

he conceded that Mama Prisca was not a witness in this case, and that there was an error in the charge sheet on the size of the tv which ought to be 24” and not 32”. He reiterated that he knew the Accused Person’s home well and that the recoveries and the photos were taken from the Accused Person’s home. PW3 Innocent Mukhwana Satia stated that on 19th April 2025 at around 1800hrs, PW2 told him to go to his house in Musese area to carry motor vehicle parts for sale in a scrap metal shop. While weighing the motor vehicle parts with PW2 at the scrap metal shop, PW1 went there with police officers and arrested them. They proceeded to National Oil Chwele area where the Accused Person was arrested. He recalled that on that day at 0300hrs, he had seen the Accused Person holding a luggage along the road. PW4 No. 101980 PC Sylvia Sichangi investigated this case. He testified that on 19th April 2025, at around 1800hrs, while in the company CPL Kibet, PC Munyoki and PW1, they proceeded to Katumbo scrap metal shop where PW2 and PW3 had been locked up in a room on suspicion of having stolen a dismantled lorry diff from PW1’s garage. They recovered the dismantled lorry diff. She interrogated PW2 who told her that the Accused Person had given him the dismantled lorry diff in a green sack around National Oil area. PW2 also told her that he had retained the dismantled lorry diff since the Accused Person was to pay him Kshs. 200/= for bodaboda services upon sale of the dismantled diff. She added that later on PW2 told PW3 to go pick the dismantled lorry diff from his house for sale, and that PW3 informed her that he had seen the Accused Person the previous day at around 0300hrs with a luggage. Kitale CMC CRC. No. E1104 of 2023 Page 3 of 9 Gideon Wekesa Judgment

page 3 of 9

She further testified that the Accused Person was a security guard near the Accused Person’s garage. She produced the recoveries as exhibits. The Accused Person’s 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. He denied committing the offences herein. He testified that he was arrested on 10 th March 2025 while hawking for lacking a business license only to be charge the following day with the offences herein. ANALYSIS AND DETERMINATION The ingredients of the offence of breaking into a building and committing a felony as per section 306 (a) of the Penal Code are as follows:A person who breaks any part whether external or internal of : a) a schoolhouse, shop, warehouse, store, office, counting- house, garage, pavilion, club, factory or workshop, or b) any building belonging to a public body, or c) any building or part of a building licensed for the sale of intoxicating liquor, or d) 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, Kitale CMC CRC. No. E1104 of 2023 Page 4 of 9 Gideon Wekesa Judgment

page 4 of 9

e) and commits a felony therein. It is clear from the provisions of the law above that for the prosecution to prove the main charge, they must prove beyond reasonable doubt that the Accused Person broke into any part of the places listed in (a) to (d) above, and thereafter committed a crime as set out in subsection (e). Breaking as defined under section 303(I) of the Penal Code is deemed complete when a person enters a building or opens by unlocking, pulling, pushing, lifting or any other means whatever any door, window, shutter, cellar, flap or other thing intended to close or cover an opening in building or any opening giving passage from one part of a building to another is deemed to break the building. The foregoing shows that breaking into a building need not constitute breaking down a door or damaging a building. This court is fortified to this end by the holding in Michael Maundu Wambua vs. Republic [2006] eKLR, where Makhandia, J (as he then was) expressed himself as follows: “With respect I do not buy the appellant’s interpretation of what amounts to “breaking”. The breaking must not necessarily result into some sought of damage. What is critical is gaining access into a store against the wish of the owner and or without his permission. In the instant case, the appellant gained entry into the store using a master key. By using the master key to access the store which was not his and without having sought or obtained the permission of the owner (PW1) to my mind amounts to breaking in. Simply put the appellant by his own machinations gained unauthorized access to the store. That act amounted to “breaking in.” In my view, therefore, the prosecution led sufficient evidence to show that the appellant broke into the store.”(Emphasis added) Kitale CMC CRC. No. E1104 of 2023 Page 5 of 9 Gideon Wekesa Judgment

page 5 of 9

PW1 testified that on 19th April 2025, he found his garage broken into and the items listed in the charge sheet missing. That testimony by PW1 was not impeached by the Accused Person. The fact that the person who stole the items listed in the charge sheet entered PW1’s garage without PW1’s permission proves that PW1’s garage was broken into on the date of the incident. A garage is among the buildings listed in section 306 (a) of the Penal Code. Without doubt, the evidence on record shows that a garage set out under section 306 (a) of the Penal was broken into and the items set out in the charge sheet were stolen therefrom. The foregoing shows that the prosecution proved beyond reasonable doubt that the elements of the main charge; breaking into a building and committing a felony therein, were proved beyond reasonable doubt. In addition to the above, there is also no doubt in the mind of this court that the stolen property, as well as the recovered items herein belonged to PW1 since PW1 positively identified the recovered items at Katumbo’s garage shop and before this court. Another key ingredient of the main charge is the identity of the person (s) who broke into PW1’s garage and stole PW1’s property therefrom. It is given that none of the prosecution witnesses saw the Accused Person breaking into and stealing from PW1’s garage. However, PW3 stated that on the date of the incident at around 0300hrs, he saw the Accused Person holding a luggage along the road. PW2 on the other hand testified that on the date of the incident at 1600hrs, the Accused Person engaged him in carrying the luggage to his home only for the Accused Person to promise to pay him later in the day. He added that he was arrested together with PW3 at Katumbo’s shop while trying to sell the recoveries when they mentioned the Accused Person as the owner of the luggage. Kitale CMC CRC. No. E1104 of 2023 Page 6 of 9 Gideon Wekesa Judgment

page 6 of 9

PW2’s testimony on the circumstances under which him and PW3 got into possession of the recoveries was corroborated by PW1 and PW4’s testimonies. The Accused Person did not impeach the evidence on record on having handed over the recoveries to PW2 for sale. The foregoing shows that the prosecution’s case was grounded on the doctrine of recent possession. In Isaac Ng’ang’a Kahiga & another vs. Republic [2006] eKLR, where the Court of Appeal (Tunoi, Bosire & Githinji, JJ.A.) stated the circumstances under which the doctrine of recent possession is applicable as follows: “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.” The evidence led by the prosecution witnesses shows that the recovered items were in the possession of the Accused Person before he handed the same over to PW2 for sale at Katumbo scrap metal shop. It should also be borne in mind that the recoveries were made just some few hours from the time of the incident. Kitale CMC CRC. No. E1104 of 2023 Page 7 of 9 Gideon Wekesa Judgment

page 7 of 9

The Accused Person, having been found with some of the items stolen from PW1’s garage, it was incumbent upon him to give a reasonable explanation of the circumstances under which he came into possession of the recoveries. That reasonable explanation would have rebutted the presumption that the Accused Person got into possession of the recovered items by way of stealing. The reasonable explanation was not given by the Accused Person. In the absence of a reasonable explanation by the Accused Person on how he got into possession of the recoveries, it follows that the Accused Person stole the recoveries from PW1’s garage after breaking into that garage. 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 offence of breaking into a building and committing a felony, contrary to section 306 (a) of the Penal Code. The alternative charge is moot. Judgment read, signed and delivered in open Court at Bungoma this 29th day of September 2025 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Ms. Achieng for ODPP C/A Mr. Rioba Kitale CMC CRC. No. E1104 of 2023 Page 8 of 9 Gideon Wekesa Judgment

page 8 of 9

Kitale CMC CRC. No. E1104 of 2023 Page 9 of 9 Gideon Wekesa Judgment

page 9 of 9