Republic v Mutisya (Criminal Case E537 of 2026) [2026] KEMC 335 (KLR)

5. She immediately raised an alarm attracting other worshippers who pursued the assailants but failed to apprehend them. She thereafter reported the matter at Changamwe Police Station. Police oficers accompanied her back to the scene but the suspects were not traced. 6. PW1 testified that she had suficient opportunity to observe the person who snatched her phone as he approached her from the front. She gave police a description of his physical appearance and clothing. She testified that after few days she was informed that a suspect had been arrested. She attended an identification parade where she positively identified the accused by touching him. She also identified him in court. She identified the purchase receipt for the stolen phone which was later produced as Exhibit 2. 7. During cross-examination, PW1 maintained that although she had not known the accused before the incident, she clearly saw him during the commission of the ofience. 8. PW2, Samuel Nderitu, testified that he had attended the same church service and was reversing his vehicle while PW1 directed him from behind. Upon hearing screams of "mwizi, mwizi", he looked through his rear-view mirror and observed three young men, including the accused, running away from the scene. He joined other worshippers in pursuing them but they escaped. 9. PW2 further testified that two of the accused's companions deceptively joined the pursuit pretending to be chasing the thief before disappearing. During cross-examination he remained firm that he saw the accused through his rear-view mirror immediately after the incident. 10. PW3, PC George Engalo the IO, testified that upon receiving the complainant's report, he visited the scene together with another oficer but the suspects had already escaped. Following inquiries, members of the public informed them that the suspects were known within the locality. 11. On 26th March 2026, acting on information from a member of the public that one of the suspects had been spotted within Santana Area, PW3 and another oficer arrested the accused. The complainant was later summoned to attend an identification parade during which she positively identified the accused. PW3 produced the receipt for the complainant's phone as Exhibit 2. 12. PW4, Inspector Calvin Mutai, testified that he conducted the identification parade on 26th March 2026 at Changamwe Police Station. He stated that the accused consented to participate, chose his preferred position in the parade and was placed among eight persons of similar physical appearance. PW1 positively identified him by touching him. The Identification Parade Forms were produced as Exhibit 1. 13. At the close of the prosecution case, this court ruled that the prosecution had established a prima facie case and placed the accused on his defence. C. Defence Case 14. The accused gave sworn evidence denying the charge. He testified that on 26th March 2026 he had been sent by his mother when police oficers arrested him without informing him of the reason. 15. During cross-examination, he stated that on the date of the ofience he had been with his mother but did not call her as a witness. He further stated that he left home at about 3.00 p.m. after being sent to visit his aunt. D. Issues for Determination 16. Having considered the evidence on record, I find that the following issues arise for determination: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/335/eng@2026-07-21 2

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i. Whether the complainant's mobile phone was stolen. ii. Whether the accused was positively identified as one of the perpetrators. iii. Whether the prosecution proved its case beyond reasonable doubt. E. Analysis 17. There is no dispute that PW1 lost her Vivo V60 mobile phone during the incident. Her evidence that the phone was snatched from her hand remained unshaken during cross-examination. Ownership of the phone was proved through the purchase receipt produced as Exhibit 2. 18. The central issue is whether the accused was one of the persons who committed the theft. 19. The prosecution case substantially rests on evidence of visual identification. The law regarding visual identification is well settled. In Wamunga v Republic [1989] KLR, the Court of Appeal at Kisumu cautioned that evidence of visual identification must be examined with the greatest care, particularly where conditions favoring a correct identification are dificult, before a conviction can safely be founded upon it. 20. Similarly, in Maitanyi v Republic [1986] KLR, the Court of Appeal at Nairobi emphasized that before relying on visual identification, the court must inquire into the nature of the lighting, the distance, the duration of observation and whether the witness had suficient opportunity to observe the ofiender. 21. In the present case, the incident occurred at about 10.00 a.m. in broad daylight. PW1 testified that the accused approached her from the front before snatching the phone directly from her hand. The proximity between PW1 and the accused afiorded her ample opportunity to observe his facial features and physical appearance. 22. The court also notes that immediately after the incident PW1 gave police a description of the assailant before any arrest had been efiected. This lends credibility to her subsequent identification of the accused. 23. PW2's evidence materially corroborates that of PW1. Although he did not witness the actual snatching, he immediately observed three young men, including the accused, fieeing from the scene after hearing PW1's screams. His testimony places the accused at the scene immediately after the commission of the ofience. 24. The complainant subsequently identified the accused during an identification parade. PW4 testified in detail regarding the manner in which the parade was conducted. The accused consented to the parade, selected his preferred position and raised no complaint regarding the conduct of the exercise. 25. It is this courts view that where an identification parade is properly conducted in accordance with the Police Force Standing Orders, it provides important corroborative evidence of identification. I am satisfied that the parade in this case complied with the applicable legal requirements and that the identification was free from suggestion or infiuence. 26. PW3 testified that during interrogation the accused admitted involvement in the ofience together with other persons. However, such evidence amounts to an alleged confession made to a police oficer. Under sections 25A of the Evidence Act, such a confession is inadmissible unless recorded in accordance with the law. I have therefore disregarded that portion of the evidence entirely. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/335/eng@2026-07-21 3

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27. The accused's defence amounted to a bare denial. His evidence did not displace the prosecution's case. Although he claimed to have been with his mother, he did not call her to support that assertion. Further, his testimony contained inconsistencies regarding his movements on the material day. 28. While the accused bears no obligation to prove his innocence, the defence must be weighed against the prosecution evidence and having done so, I find that the defence does not raise any reasonable doubt. 29. The fact that the stolen phone was never recovered does not negate the ofience. Recovery of stolen property is not an essential ingredient of the ofience of stealing where the identity of the ofiender is otherwise proved beyond reasonable doubt. 30. Having carefully evaluated the entire evidence, I am satisfied that the complainant's evidence was credible, consistent and corroborated by PW2 as well as the properly conducted identification parade. I find that the possibility of mistaken identity has been completely eliminated. 31. I find that the prosecution proved beyond reasonable doubt that on 15th March 2026 at Santana Area in Changamwe Sub-County within Mombasa County, jointly with others not before the court, the accused stole the complainant's Vivo V60 mobile phone valued at Kshs. 64,500. 32. Consequently, I find the accused guilty of the ofience of stealing contrary to section 268(1) as read with section 275 of the Penal Code and convict him accordingly under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 21ST DAY OF JULY, 2026. --------------------------------------HON. JAMLICK MURIITHI MWENDA (RESIDENT MAGISTRATE) In Presence of;Mr Ngigi - Prosecutor. Accused person Getrude - Court assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/335/eng@2026-07-21 4

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