kemc-2025-00439

screen make Aliyons 32”, car battery (chloride exide), woofer, two speakers, 1 extension, and 1 door curtain knowing or having reason to believe them to be stolen property 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 was as summarized hereunder:EVIDENCE Prosecution’s Case PW1 Protas Khaoya Watoka the proprietor of Ingwe Bar testified that on 19th March 2025 at around 0930hrs while cleaning behind his bar, he was told by his bar attendant (PW2) to go check on the bar’s doors. He went to the bar and found out that the doors that had been locked by PW2 the previous day had been broken down and the items set out in the charge sheet stolen from his bar. He reported the incident at Mechimeru Police Post. Later, PW2 reportedly gathered information that the Accused Person had a woofer in his house. PW2 led police officers to the Accused Person’s house where some of the items stolen from PW1’s bar were recovered, and the Accused Person was arrested. He identified the items recovered from the Accused Person as his property. PW2 Paul Wanjala Kuloba is an accountant at Leopard Ingwe Bar in Mechimeru. His testimony was that on 19 th March 2025 when he reported at his work place at around 0930hrs, he found out that the bar’s doors that he had locked the previous day had been broken into through damaging of padlocks. He entered the beer only to find the items listed in the charge sheet missing. Kitale CMC CRC. No. E1104 of 2023 Page 2 of 10 Gideon Wekesa Judgment

page 2 of 10

He reported the incident at Mechimeru Police Post. He received information from Mama Prisca that the Accused Person wanted to sell a tv, woofer, and a battery. He proceeded to the Accused Person’s house where he found the items listed in the alternative charge in the Accused Person’s house. He informed PW1 about the recovery. PW1 proceeded to the scene with police officers who arrested the Accused Person and later on arraigned him. In cross-examination, 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. PW4 No. 87994 PC Fred Lojao investigated this case. He stated that on 19th March 2025, he received PW1 at Sang’alo Police Post when PW1 reported that his wine and spirits shop had been broken into. He visited the scene and took scene photos. It was his further testimony that on 19 th March 2025, they received intelligence reports that the Accused Person was selling suspected stolen property. They proceeded to the Accused Person’s house in Mutomolo where they found the Accused Person sleeping while heavily drunk. They recovered the items listed in the alternative charge outside the Accused Person’s house. He produced the scene photos and the recoveries as exhibits (Pexh. 1-6). 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. Kitale CMC CRC. No. E1104 of 2023 Page 3 of 10 Gideon Wekesa Judgment

page 3 of 10

The Accused Person gave sworn testimony. He did not call any witnesses. He denied committing the offences herein. His testimony was that on 19th March 2025 while asleep in his house he was woken up and led to Mechimeru Police Station where PW1 accused him of having stolen his items. In cross-examination, he stated that no items were recovered from his house. ANALYSIS AND DETERMINATION PW1 stated that his bar was broken into and the items set out in the main charge stolen therefrom. This testimony was corroborated by PW2 and PW3. PW2 stated that the previous day he had locked the bar’s doors with padlocks only to find the following day that the padlocks had been damaged and property stolen from the bar. 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, e) and commits a felony therein. Kitale CMC CRC. No. E1104 of 2023 Page 4 of 10 Gideon Wekesa Judgment

page 4 of 10

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) The evidence on record shows that a building set out under section 306 (a) of the Penal Code set out above was broken into and the items set out in the Kitale CMC CRC. No. E1104 of 2023 Page 5 of 10 Gideon Wekesa Judgment

page 5 of 10

charge sheet 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 committed beyond reasonable doubt. 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 and PW2 positively identified the said items at the Accused Person’s home and before this court. Another key ingredient of the main charge is the identity of the persons who broke into PW1’s bar 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 bar. It is abundantly clear that the Accused Person was arraigned after having been found with some of the items stolen from PW1’s bar. 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 Kitale CMC CRC. No. E1104 of 2023 Page 6 of 10 Gideon Wekesa Judgment

page 6 of 10

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 herein were recovered from the Accused Person. The Accused Person himself corroborated PW2’s testimony that the Accused Person was arrested in his house while asleep. The Accused Person, having been found with some of the items stolen from PW1’s bar, it was incumbent upon him to give a reasonable explanation on the circumstances under which he came into possession of the recovered items. That reasonable explanation would have rebutted the presumption that the Accused Person got into possession of the recovered items by way of stealing. The Accused Person did not give a reasonable explanation on the circumstances under which he got into possession of the recoveries. He failed to discharge the evidential burden that had shifted to him to give an account of his possession of the recovered items. In the absence of a reasonable explanation by the Accused Person on how he got into possession of the recovered items, it follows that the Accused Person stole the recovered items from PW1’s bar. It is against this background that this court holds and finds that the doctrine of recent possession is applicable in this case; thus, the Accused Person was properly identified as the perpetrator of the main charge. Whether failure by the prosecution to call Mama Prisca was fatal to the prosecution case PW2 testified that Mama Prisca informed him that the Accused Person wanted to sell a tv, a woofer and a battery, and that the said information led Kitale CMC CRC. No. E1104 of 2023 Page 7 of 10 Gideon Wekesa Judgment

page 7 of 10

to recoveries being made in the Accused Person’s home. During PW2’s crossexamination, the Accused Person took issue with the prosecution’s failure to call Mama Prisca as a witness. Whereas this court agrees with the Accused Person that it was desirable for Mama Prisca to be called as a prosecution witness, the law in this jurisdiction is that the prosecution is not obligated to call a superfluity of witnesses. The prosecution is only expected to call such number of witnesses that are enough to prove the prosecution’s case beyond reasonable doubt. An adverse finding can only be drawn in instances where the prosecution fails to call a key witness where the evidence on record is barely adequate to return a conviction. The evidence on record, even in the absence of Mama Prisca’s testimony, was overwhelming against the Accused Person. Therefore, this court finds and holds that the failure by the prosecution to call mama Prisca as a witness was not fatal to the prosecution case. Whether the mistake on the recovered Aliyon television’s size rendered the charge sheet defective The Accused Person questioned why PW1 and PW2 stated that the Aliyon TV stolen from the bar and recovered from the Accused Person’s home was 24” inches yet the charge sheet herein indicated the said television’s size as 32”. Did the error render the charge sheet herein defective thus embarrassing and prejudicing the Accused Person? The Court of Appeal in Nyamai Musyoka v. Republic (2014) eKLR expressed itself as follows on the test of whether or not a charge sheet is defective: “The test for whether a charge sheet is fatally defective is a substantive one.......If a defective charge is followed by a series of Kitale CMC CRC. No. E1104 of 2023 Page 8 of 10 Gideon Wekesa Judgment

page 8 of 10

other procedural or substantive mistakes and which in particular affect the rights of the accused person, or the defect goes into the root of the charge distorting it in a way that the accused person cannot understand the charge, then the Court ought to be reluctant to apply Section 382 C.P.C. to cure the defect...” Guided by the test expounded in the authority above, this court is of the considered view that the error on the size of the stolen television set out in the charge sheet did not prejudice the Accused Person since the Accused Person was well aware that he was facing a charge of breaking into a building and stealing therefrom. In any event, such an error is among the curable errors under section 382 of the Criminal Procedure Code. Accused Defence This court has duly considered the Accused Person’s defence. The Accused Person simply denied committing the offences herein. That denial did not cast any reasonable doubt on the prosecution’s case. It is against this backdrop that this court dismisses the Accused Person’s defence in its entirety for being a mere denial. DETERMINATION For the reasons above, this court holds and finds that the prosecution has proved the main charge against the Accused Person beyond reasonable doubt. The alternative charge is moot. The upshot of the foregoing is that 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. Kitale CMC CRC. No. E1104 of 2023 Page 9 of 10 Gideon Wekesa Judgment

page 9 of 10

Judgment read, signed and delivered in open Court at Kitale this 09 th day of July 2025 T. O. OMONO RESIDENT MAGISTRATE In the presence of: Accused Person Mr. Maroro for ODPP C/A Albert Kitale CMC CRC. No. E1104 of 2023 Page 10 of 10 Gideon Wekesa Judgment

page 10 of 10