Republic v Walumbe (Criminal Case E096 of 2026) [2026] KEMC 538 (KLR)

County stole torch valued at 250 Kenya shillings property of David Barasa Wepukhulu 3. The third count facing the Accused Person was a charge of unauthorized access to computer system contrary to section 14 (1) of the Computer Misuse and Cybercrimes Act 2018. The particulars of this count were that: On 22nd day of December 2025 at between 0203hrs and 0208hrs Chwele town in Bungoma Central Sub-County of Bungoma County within the Republic of Kenya the Accused Person unlawfully accessed David Barasa Wepukhulu Mpesa with subscriber 0727697XXX account with intent to commit a felony namely stealing 4. The Accused Person denied all the charges facing him. Consequently, the prosecution set out to prove their case against the Accused Person beyond reasonable doubt. EVIDENCE Prosecution’s Case 1. PW1 David Barasa Wepukhulu is a security guard within Chwele town. He recalled that on 21st December 2025, he was at his place of work in the evening when he decided to charge his torch and a mobile phone on a socket close to the place his sits at his place of work. 2. He left his working station for some minutes then went back only to find that his itel mobile phone and the torch he had left on the socket missing. 3. He later on replaced his mobile phone number 0727696XXX when he realized that Kshs. 11,970/= had been withdrawn from his Mpesa

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account on the night he lost his mobile phone and torch at around 0200hrs. 4. He traced the Mpesa agent where the Mpesa withdrawals from his phone had been made. The Mpesa agent informed him that the Mpesa withdrawals had been made by some boys who were in the company of a boy he knew, and that the boy had left behind a torch for charging. He identified the torch left behind by the alleged boy to be his stolen torch through an XX inscription on the torch. 5. He added that he reported the matter to the police leading to the Accused Person’s arrest. The Accused Person reportedly promised to refund him his money after selling his chicken. 6. PW2 Emmanuel Wafula is a businessman operating an Mpesa shop in Chwele town. He testified that the Accused Person while in the company of other people went to his business premises on 22 nd December 2025 at around midnight when he made Mpesa withdrawal of Kshs. 11,900/= through three transactions. 7. He also stated that the Accused Person went back to his shop the next morning to charge the complainant’s torch. He was later questioned by Chwele DCI officers about the Mpesa withdrawals made at his shop by the Accused Person when he identified the Accused Person and told them that the Accused Person had left behind the complainant’s torch.

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8. He added that he informed the police officers that the Accused Person was at Skybreak area leading to the Accused Person’s arrest. He identified the Accused Person at the police station after his arrest. 9. PW3 No. 11840 IP James Ekai of DCI Bungoma Central investigated this case. He testified that the on 24 th December 2025, PW1 reported at Chwele Police Station that between 21st – 22nd December 2025, his mulika mwizi phone and a torch he was charging on a socket at his workplace had been stolen. PW1 also reported that money had been withdrawn from his Mpesa account after the loss of his mobile phone. 10. His investigations caused him to visit the Mpesa agent Till No. 157706 t/a Lobot Company Enterprises owned by PW2 where PW2 told him that the Accused Person was the one who had withdrawn money from PW1’s Mpesa account. PW2 also told him that the Accused Person had left behind a torch for charging. 11. He added that PW1 identified the torch through an X mark. He produced a mobile phone charging cable, a white torch, and PW1’s Mpesa statement for the period in question as exhibits. The Accused Person’s Case 12. DW1 Elvis Juma Walumbe gave sworn testimony. He denied committing the offences herein. He claimed that he was in his house sleeping when the offences herein were reportedly committed. ANALYSIS AND DETERMINATION

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13. This court has carefully considered the evidence on record. During the course of writing this judgment, this court noted that count 2 arose in the same transaction that count 1 arose. The items stolen in count 1 and count 2 belong to the same complainant. 14. It is this court’s view that good practice demanded that count 2 ought to have been merged with count for the Accused Person to be charged with an offence of stealing the complainant’s torch and mobile phone in one count. In the circumstances, this court will treat count 1 and 2 as one count. 15. This court now proceeds to determine whether or not the Accused Person committed the offences facing him. 16. Stealing is defined in section 268 of the Penal Code as:(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. (2)A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say:(a)an intent permanently to deprive the general or special owner of the thing of it; (b)an intent to use the thing as a pledge or security; (c)an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (d)an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

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(e)in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner; and “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question. (3)When a thing stolen is converted, it is immaterial whether it is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it; and it is also immaterial that the person who converts the thing in question is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of it. (4)When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered. (5)A person shall not be deemed to take a thing unless he moves the thing or causes it to move. 17. Section 275 of the Penal Code sets out the offence of stealing as follows: 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. 18. In Robert Onchwari Orina & another vs Republic (2021) eKLR, Nyakundi J held that:-

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“………….For an accused person to be convicted of the offence under Section 268 of the Penal Code, its incumbent upon the prosecution to proof that he or she dealt with the property of the complainant fraudulently without any claim of right or converts it into his or her own use, other than the general or special owner thereof. That intention is executed in a manner to deprive the rightful owner of the property permanently.” 19. The authorities above reveal that for an Accused Person to be convicted for the offence of stealing, the prosecution must prove that the Accused Person took the complainant’s property with the intention of permanently depriving the complainant of the same. 20. PW1 testified that he recovered his stolen torch from PW2’s shop, where the Accused Person had taken the torch for charging some hours after the same had been stolen. He identified his torch thanks to the X mark he had inscribed on it. 21. PW2, on the other hand, confirmed that the Accused Person withdrew money from PW1’s M-Pesa account through his M-Pesa shop on the night of the incident. PW1’s M-Pesa statement on record confirmed the withdrawals on the night of the incident. 22. PW2 also positively identified the Accused Person as the person who woke him up on the night of the incident to make the Mpesa withdrawals from PW1’s M-Pesa account on the date of the incident. It is also noteworthy that the Accused Person was well known to the Accused Person; hence, there was no room for mistaken identity. 23. The fact that the Accused Person withdrew money from PW1’s Mpesa account on the night of the incident proves that the Accused Person stole PW1’s mobile phone on the night of the incident, since there is no way the Accused Person would have made the M-Pesa withdrawals without using PW1’s SIM card, which was in PW1’s mobile phone.

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24. The Accused Person’s intention to permanently deprive PW1 of his mobile phone and torch was manifested through the Accused Person’s actions of taking ownership of the torch, and failing to hand over PW1’s mobile phone to date. 25. In any event, bearing in mind that the evidence on record proved beyond reasonable doubt that the Accused Person left the complainant’s torch at PW2’s premises to charge some hours after the same had been stolen, and the fact that the Accused Person withdrew money from PW1’s M-Pesa account some hours after PW1’s mobile phone had been stolen, the evidential burden shifted to the Accused Person to explain the circumstances under which he got into possession of the complainant’s torch and SIM card. 26. The above is in line with the Court of Appeal’s holding in Boniface Okerosi Misera & another vs. Republic (2021) eKLR, cited the case of Douglas Thiong’o Kibocha vs. Republic [2009] eKLR where it was held thus:“When Parliament enacted section 111 (1), above, it must have recognized that there are situations when an accused person must be called upon to offer an explanation on certain matters, especially within his knowledge. Otherwise, the prosecution would not be able to conduct full investigations in such cases and the accused in the event, will escape punishment even when the circumstances suggest otherwise. Section 111 (1), above, places an evidential burden on an accused to explain those matters which are especially within his own knowledge...” 27. The Accused Person did not discharge the evidential burden placed on him to explain the circumstances under which he got into possession of the complainant’s torch some hours after it had been stolen, and how he withdrew money from PW1’s SIM card, which had

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been stolen together with his mobile phone, just some hours before the said withdrawals. 28. It is also the law in this jurisdiction that where a person is found in possession of recently stolen property, and that person fails to give a reasonable explanation on how he got into possession of the stolen property just some hours after the said property had been stolen, such a person is dement to be the thief or a handler of stolen property. This is commonly referred to as the doctrine of recent possession (see Isaac Ng’ang’a Kahiga & another vs. Republic [2006] eKLR). 29. The Accused Person faced in count 3 a charge of unauthorized access contrary to section 14 (1) of the Computer Misuse and Cybercrimes Act (“the Act”). This offence is set out in the following terms: 14. Unauthorised access (1)A person who causes, whether temporarily or permanently, a computer system to perform a function, by infringing security measures, with intent to gain access, and knowing such access is unauthorised, commits an offence and is liable on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both. (2)Access by a person to a computer system is unauthorised if— (a)that person is not entitled to control access of the kind in question to the program or data; or (b)that person does not have consent from any person who is entitled to access the computer system through any function to the program or data. 30. The ingredients of this offence are that the prosecution must prove beyond reasonable doubt that the Accused Person caused a computer

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system to perform a function temporarily or permanently by infringing security measures with the intention to gain access without authority. 31. The prosecution’s evidence placed before this court by PW1, PW2, and PW1’s Mpesa statement on record shows that the Accused Person withdrew Kshs. 11,900/= from PW1’s Mpesa account number 0727696XXX on the night of the incident. 32. A mobile phone is a computer system within the meaning of the Act. It is a matter of public notoriety that an M-Pesa transaction can only be initiated and completed after accessing a mobile phone and a SIM card. There is no evidence on record to suggest that PW1 authorised the Accused Person to make withdrawals from his M-Pesa account on the date of the incident. 33. The foregoing shows that the Accused Person caused PW1’s mobile phone and SIM card to perform M-Pesa transactions without PW1’s authority by infringing their security measures. Accused Person’s Defence 34. This court has duly considered the Accused Person’s defence. The Accused Person simply denied committing the offences herein. 35. In the circumstances, the Accused Person’s defence is dismissed in its entirety for being a mere denial. DETERMINATION 36. The upshot of the foregoing is that: a) The Accused Person is convicted under section 215 of the Criminal Procedure Code of the offence of stealing contrary to section 268 as read with section 275 of the Penal Code

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b) The Accused Person is convicted under section 215 of the Criminal Procedure Code of the offence of unauthorized access contrary to section 14 (1) of the Computer Misuse and Cybercrimes Act 37. Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 30th day of March 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person C/A: Mr. Rioba

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