Republic v Oduor (Criminal Case E052 of 2025) [2025] KEMC 445 (KLR)

When the charges herein were read to the Accused Person, he denied all the charges; therefore, this matter proceeded to full trial. The evidence led before this court was as summarized hereunder:EVIDENCE Prosecution’s Case PW1 Abdallah Malala stated that on 17th January 2025, he reported to his workplace (JN Autospares) at around 0900hrs when he found the garage store’s front door padlock broken. He entered the store only to find out that the spanners’ toolbox was missing. He added that he had locked the garage store’s door the previous day. He was joined at the scene by Joseph (PW2). They reported the matter to the police. He also passed by several scrap metal shops, including Muthegei scrap metal shop and informed them to be on the lookout for their garage’s missing green toolbox. He later found the garage’s missing green toolbox at Muthegei scrap metal shop when the scrap metal shop’s proprietor allegedly requested time to trace whoever had taken the toolbox to her. He added that Muthegei scrap metal shop’s proprietor called the Accused Person to the shop since the Accused Person had earlier wanted to sell spanners to her. The Accused Person went to the shop with assorted spanners in a sack and claimed that those assorted spanners had been sold to him by some boys. He identified the green toolbox that was recovered from Muthegei scrap metal shop and the assorted spanners that were recovered from the Accused Person. PW2 Joseph Wechuli Makokha testified that on 17th January 2025 at around 0700hrs, he received a call from his apprentice (PW1) who told him Kitale CMC CRC. No. E1104 of 2023 Page 2 of 12 Gideon Wekesa Judgment

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that their garage store had been broken into and several items, including a toolbox, had been stolen. He visited the scene and confirmed as much. He added that PW1 reported the matter to the police station and various scrap metal shops. PW1 later told him that the missing toolbox had been recovered from a certain scrap metal shop. He proceeded to the said scrap metal shop when its proprietor reportedly proposed to pay him Kshs. 2,000/= for his missing items. He demanded Kshs. 6,000/= for his missing spanners when the scrap metal shop’s proprietor called the Accused Person over the phone. The Accused Person went to the scene while carrying a sack containing assorted spanners. He identified the assorted spanners that the Accused Person took to the scrap metal shop in a sack. They arrested the Accused Person and later handed him over to the police. PW3 NO. 228069 APC Stephen Etugu a police officer attached to Bungoma County Police headquarters, stated that on 17th January 2025 at around 1630hrs, he received a call from PW1 informing him that their garage had been broken into and some items stolen. He was in the company of PW4 at that time. PW1 added that some of the stolen items had been recovered at Muthegei scrap metal shop, leading to the Accused Person’s arrest. He accompanied PW4 to JN garage, where they arrested the Accused Person with the toolbox and assorted spanners. He also stated that the Accused Person was arrested since he failed to produce the person who reportedly gave him the assorted spanners that were recovered from him on the date of his arrest. PW4 No. 224075 CPL Joel Kipleting attached to Bungoma Police Station, investigated this case. He regurgitated the evidence of the other prosecution Kitale CMC CRC. No. E1104 of 2023 Page 3 of 12 Gideon Wekesa Judgment

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witnesses. He produced the green faded toolbox (Pexh.1), assorted spanners (Pexh.2), a pair of pliers (Pexh.3), a chisel (Pexh.4), and a blue and red sack (Pexh.5) as exhibits. 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 elected to remain silent per Article 50(a) & (i) of the Constitution. The consequence of an Accused Person opting to remain silent after the court has made a finding that a prima facie case has been established against them was eloquently explained by Nyakundi J in Republic v Khalumi & another (Criminal Case E002 of 2024) [2024] KEHC 10145 (KLR) (12 August 2024) (Ruling) when he rendered himself thus:However, in the event the accused person elects to keep silent or offers no evidence in rebuttal, the blend of that sufficient evidence by the prosecution, will satisfy the court to find the accused guilty and convict him as per law established. The accused person in a prima facie case is not required as a matter of the Constitution or the law to offer evidence in reply. This is what Art 50(2)(f) says: that the accused has a right to remain silent and not to testify during the proceedings and he has also a right in Art5(2)(i), a right to refuse to give selfincriminating evidence. If he elects any of these options, provided under out Constitution, the accused takes a risk of an adverse verdict if he fails to do so. It is trite that when the prosecution has made a prima facie case in criminal proceedings, the burden of evidence then shifts to the accused person. However, there is one critical element in this Kitale CMC CRC. No. E1104 of 2023 Page 4 of 12 Gideon Wekesa Judgment

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realm of law. The necessity of offering evidence by the accused person to offset the prosecution’s prima facie case, in no way does it shift the burden of proof which continues to rest on the prosecution at all material times as stipulated in Art 50(2)(a), the accused is presumed innocent until the contrary is proved. I presume that is what the drafters of the constitution had in mind when the rights centred around Art 50(2)(a),(j) and (i) of the same constitution. Aburili J in State v George Omwombo Olik & another [2022] eKLR stated as follows on this issue:It follows that an accused person cannot be expected to adduce evidence to challenge the evidence adduced by the Prosecution witnesses as that would be shifting the burden of proof where it does not lie. Whether an accused person elects to give evidence or not, the court must determine the case on the basis of the evidence adduced by the prosecution witnesses to establish whether that evidence meets the threshold to sustain a conviction. Having fully appreciated the authorities above, this court will now proceed to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. 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 Kitale CMC CRC. No. E1104 of 2023 Page 5 of 12 Gideon Wekesa Judgment

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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. It is clear that the various elements in (a) to (d) above are disjunctive; hence, satisfaction of any element combined with (e) will lead to an accused person being found guilty. On what constitutes breaking, section 303(I) states that breaking in will be 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. A further definition of breaking in is found 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 Kitale CMC CRC. No. E1104 of 2023 Page 6 of 12 Gideon Wekesa Judgment

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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) PW1 stated that their garage store was broken into on the date of the incident, and the items set out in the charge sheet were stolen therefrom. This was corroborated by PW2’s testimony. The investigations officer failed to photograph the scene to corroborate PW1’s testimony that the padlock to the garage store was broken and the garage store’s door broken. Was that omission fatal to the prosecution’s case? This court is of the considered view that, given the definition of breaking in the Michael Maundu Wambua case (supra), proof of causing damage to a door is not an ingredient of breaking in. Entry into a building without authority is sufficient proof of breaking in. PW1 testified that he had locked the garage store’s door the previous day before leaving for home. That shows that the toolbox and the assorted spanners could only be stolen from the garage store by breaking in. For the reasons above, this court holds and finds that whereas the investigations officer should have photographed the damaged padlock and door, that omission was not fatal to the prosecution’s case since there was adequate evidence on record to prove the element of breaking in. PW1 and PW2 positively identified the green faded toolbox and the assorted spanners as the items stolen from their garage store on the date of the incident. However, this court notes that the evidence on record shows that the stolen items belonged to PW2 and not PW1 as stated in the charge sheet. That error Kitale CMC CRC. No. E1104 of 2023 Page 7 of 12 Gideon Wekesa Judgment

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did not prejudice the Accused Person since he was sufficiently aware that he was facing a charge of stealing a tool box and spanners belonging to another person. The particulars of the charge as set out in the charge sheet were adequate for him to mount his defence. Turning to the issue of whether a felony was committed in the garage after the break in, PW1 and PW2 stated that they found a tool box and assorted spanners missing from their garage. That means that upon their garage being broken into, a felony (stealing) was committed therein. Another key ingredient of the main charge is the identity of the persons who broke into the garage store and committed the felony. It is given that none of the prosecution witnesses saw the Accused Person breaking into and stealing from the garage store. All the prosecution witnesses agreed that the Accused Person was arraigned after having been found with the missing assorted spanners, and failing to give a plausible explanation on the circumstances under which he came into possession of those assorted spanners. The foregoing shows that the prosecution’s case was grounded on the doctrine of recent possession. 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 Kitale CMC CRC. No. E1104 of 2023 Page 8 of 12 Gideon Wekesa Judgment

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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 assorted spanners were recovered from the Accused Person. Those assorted spanners were positively identified by PW1 and PW2 as the items that were stolen from their garage store. Given that the Accused Person was found in possession of the assorted spanners stolen, the evidential burden shifted to him to the Accused Person to give a reasonable explanation on the circumstances under which he came into possession of the assorted spanners. That reasonable explanation would have rebutted the presumption that the Accused Person got into possession of part of PW1’s stolen property by way of stealing. The Accused Person did not account for his possession of the stolen items that were recovered from him. It is noteworthy that the assorted spanners that were recovered from the Accused were contained in the toolbox that was stolen from the garage store herein. One could only steal the assorted spanners after stealing the toolbox that contained the said spanners. Therefore, whereas the toolbox was not recovered from the Accused Person, in the absence of a reasonable explanation by the Accused Person on how he got into possession of the assorted spanners, it follows that the Accused Person stole the recovered toolbox together with the assorted spanners. Kitale CMC CRC. No. E1104 of 2023 Page 9 of 12 Gideon Wekesa Judgment

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In view of the above, 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. During the writing of this judgment the court noted that the particulars of the charge indicated that the main charge was committed on 17th January 2025 at 20230hrs while the alternative charge shows that the recoveries were made on the same date at 1630hrs. A perusal of the evidence on record shows that the particulars of the main charge were at variance with the prosecution witness's testimony since those witnesses testified that the garage store was broken into the day before 17th January 2025. That means that the garage store was broken into on 16th January 2025. 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 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 date of the offence of the main charge did not prejudice the Accused Person since the Accused Person was well aware that he was facing a charge of breaking into a garage store and Kitale CMC CRC. No. E1104 of 2023 Page 10 of 12 Gideon Wekesa Judgment

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stealing a toolbox and spanners on the date preceding his arrest at Muthegei scrap metal shop. In any event, the error on the date in the main charge is among those curable errors under section 382 of the Criminal Procedure Code. DETERMINATION The upshot of the foregoing is that the prosecution has proved the main charge against the Accused Person beyond reasonable doubt. The alternative charge is moot. In the circumstances, 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. Judgment read, signed and delivered in open Court at Bungoma this 02nd day of July 2025 T. O. OMONO RESIDENT MAGISTRATE In the presence of: C/A Albert Accused Person Mr. Maroro for the ODPP Kitale CMC CRC. No. E1104 of 2023 Page 11 of 12 Gideon Wekesa Judgment

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