Republic v Mwenda (Criminal Case E348 of 2025) [2026] KEMC 507 (KLR)

that she was called to go and confirm if the beans belong to her which she did. She testified that the police were notified and the buyer confirmed buying the beans from the accused and that is when he was arrested and presented to Court. 6. PW2 ERIC MUNENE testified that he is a motorcycle operator in Rubate and that PW1 is a neighbor and on 1/06/2025 he received a call from Selestino who informed him that the accused had stolen beans from their mother and that he was on his way to the market to sell the same. It was his testimony that the buyer confirmed the accused had sold her the beans and that the accused was traced and escorted to Cheera police station and that PW1 confirmed those were the beans. 7. PW3 SELESTINO MUNENE testified that PW1 is his mother and the accused his brother and that on 1/06/2025 at 7am his mother called him and told him that her beans and phone was missing and that she suspected the accused and that he called PW2 and they went to Cheera market where the accused confirmed that he had taken the beans and that he had sold the beans to Juliesta and that her mother was briefed and called to confirm the stolen beans belonged to her and the accused was arrested and brought to court over the offence. 8. PW4 PC WOMAN Eunice M Number 101442 testified that she was the IO in this case and a matter was reported of theft and that the accused was brought by members of the public and that the beans and phone belonged to the mother of the accused. She testified that PW1 confirmed the beans belonged to her and the accused was arrested and statements were recorded. DEFENCE CASE 9. DW1 CHRISTOPHER MWENDA through unsworn testimony stated that he denied the allegations by the prosecution witnesses and he had asked his mother, the complainant for forgiveness. ANALYSIS 10. Neither of the parties filed submissions.

page 2 of 5

11. I have considered the evidence tendered before me by both the prosecution and the defense. As a rule, the prosecution has a duty to prove by way of evidence the offence facing an accused person herein and the standard of proof is that of beyond any reasonable doubts. (See Republic -vs- Patrick Ong’au Okioma [2021] eKLR). In so doing, the prosecution has a burden to prove all the elements constituting an offence facing an accused person. The accused was charged with the offence of stealing contrary to section 275 of the Penal Code. The said section provides that;“Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.” 12. In my view, the elements of the offence herein cannot be established by reading of section 275 alone but the same should be read together with section 268 which defines “stealing.” Section 268 provides as thus;“268. Definition of stealing (1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property. 13. From the above definition it is can be said that the elements of the offence of stealing either taking anything capable of being stolen and the said taking being fraudulently and without claim of right. Stealing can also be constituted of converting any property to the use of another person, other than the general or special owner and the same being fraudulent. As such, the elements of the offence can be said to be dependent on the circumstances of the case. 14. In the instant case, the facts disclose that item that was taken from the complainant’s homestead. The question therefore is whether the prosecution was able to tender evidence to prove the elements of the offence facing the accused to wit;1. Taking 2. Anything capable of being stolen 3. Fraudulently and without claim of right 4. By the accused

page 3 of 5

15. As to taking, it is the testimony of all prosecution witnesses that the accused was confirmed to have been the one who took the beans and mobile phone from the homestead. 16. As to whether the thing was capable of being stolen, section 267 of the Penal Code outlines things that are capable of being stolen. I will not quote the whole of the section but in my view, the items in issue herein, part of which was recovered and falls within the definition under Section 267(1) of the Penal Code (inanimate thing whatever which is the property of any person, and which is movable). 17. As to whether the taking was fraudulently and without claim of right, Section 268(2) of the Penal Code provides for instances when taking can be said to be fraudulent. One of these instances are where the person takes the same with an intent permanently to deprive the owner. The Court notes the items were confirmed to belong to the complainant and was taken by the accused with the intention to permanently deprive the complainant. 18. As to whether the accused was the one who took the items stolen, in my view, the testimony by the prosecution as well as the defence of the accused points to the fact that the accused took them and tried to resell the beans to a third party. Therefore, this element has been met. 19. I find that the explanation proffered during the defence hearing by the accused was an indirect admission as he indicated that he asked his mother for forgiveness but that he refused to change plea. 20. Having considered the circumstances of this case, the prosecution evidence and the defence offered by the accused, I am persuaded that the prosecution’s evidence was sufficient as to Count 1. There is no doubt that the accused took away the mobile phone and 4kgs of beans with the intention of depriving the complainant of the same. 21. Considering all the above, with regard to count 1, I find that the evidence was sufficient to win a conviction. I thus convict the accused on the main charge of stealing under section 215 of the Criminal Procedure Code and the Court will not look into the alternative count. (See Moses Alusa Imbitsa v Republic [2016] eKLR ) Delivered, dated and signed at Chuka by Hon. Tracy Wanjiku Wachira (RM) this 2nd Day of March 2026.

page 4 of 5

In the presence of:The accused in person Prosecution-Counsel Malinda Court Assistant-Eric Mwenda

page 5 of 5