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4. PW1 Augustine Wekesa Wanyonyi testified that he runs a butchery and that he had employed the Accused Person in his butchery in Mayanja. 5. He recalled that between 26th April 2025 and 03rd May 2025, he realized that the Accused Person could not account for Kshs. 70,920/= arising from the butchery sales. He questioned the Accused Person about the missing money when the Accused Person told him that the money had been stolen. 6. This resulted in the execution of the agreement dated 09 th May 2025, where the Accused Person admitted owing him Kshs. 70,920/=. 7. He added that the Accused Person failed to honour the agreement dated 09th May 2025, leading to him reporting the Accused Person to the police for stealing by a servant. 8. PW2 No. 230636 PC Victor Owili Orimba of Mayanja Police Station investigated this case. 9. He recalled that PW1 reported to the police station that the Accused Person, who used to run his butchery, had stolen Kshs. 70,920/= from him arising from the butchery sales shortfall. 10. He added that the Accused Person admitted losing the complainant’s Kshs. 70,920/= as evidenced by the agreement dated 09th May 2025, which he produced as Pexh. 1. Prosecution’s and Defence’s Written Submissions 11. After the close of the prosecution's case, both the prosecution and the Accused Person chose to rely on the evidence on record. ANALYSIS AND DETERMINATION 12. This court has given due regard to the evidence on record. It is this court’s duty at this stage to answer the question of whether the prosecution has established a prima-facie case against the Accused Person.

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13. The term prima facie is defined by the Black’s Law Dictionary, 18th edition, as: ” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” 14. In Ronald Nyaga Kiura vs. Republic [2018] eKLR, the court defined a prima facie case as follows: “…A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” 15. Guided by the authorities above, the question that rings in the mind of this court is whether the evidence on record is sufficient for this court to return a guilty verdict if no other explanation in rebuttal is given by the Accused Person. 16. The Accused Person was charged under Section 281 of the Penal Code which provides thus: “ If the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for seven years.”

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17.In Emmanuel Kombo Onteri v Republic [2022] eKLR, Kimaru J (as he then was) stated the essential elements of the offence of stealing by servant as follows:“…For the prosecution to prove the charge of theft by servant, it must establish the following: that the Appellant was an employee of the complainant, that the Appellant stole the property of the employer that came to his possession in the course of the employment, and finally that the appellant dishonestly appropriated the said property thereby depriving the employer of the same…” 18.The authorities above reveal that for this court to place the Accused Person on his defence, the prosecution must have led evidence establishing a primafacie case of the Accused having been the complainant’s servant, the Accused Person having stolen the complainant’s Kshs. 70,920/=, which came into his possession in the course of the employment, and that the Accused Person dishonestly deprived the complainant of the said Kshs. 70,920/=. 19.It is common ground that the Accused Person was employed by the complainant in the complainant’s butchery in Mayanja. Therefore, the prosecution established a prima facie case of the Accused Person being the complainant’s servant. 20.The agreement on record (Pexh.1) established a prima facie case of the Accused Person losing the complainant’s Kshs. 70,920/=, which came into his possession in the course of his employment at the complainant’s butchery in Mayanja. 21.On the question of whether the prosecution established a prima facie case of whether the Accused Person dishonestly deprived the complainant of Kshs. 70,920/=, a reading of the agreement (Pexh. 1) herein shows that the Accused Person admitted losing the said amount of money. 22.This court takes the view that ‘stealing’ and ‘losing’ are two different words. An admission that one lost their employer’s money is not the same as admitting to stealing it. In any event, the agreement (Pexh. 1) on record is not a confession within the meaning of Section 25A of the Evidence Act (Cap 80) and the Evidence (Out of Court Confessions) Rules, 2009 for the same to be used to impute criminal intent on the part of the Accused Person.

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23.It is not unusual for employees to lose their employers’ money in the course of their employment. An employee's loss of their employer’s money can be attributed to many factors other than stealing. The mere fact that an employee lost their employer’s money in the course of their employment does not, in and of itself, mean that the employee stole from their employer. 24.The evidence herein largely disclosed the existence of a civil debt that the Accused Person admitted owing to the complainant. Such a dispute is a preserve of a civil court, not a criminal court, as this court is currently constituted. This court finds support from Floriculture International Limited, High Court Misc. 144 of 1997 as cited with approval in Republic V Commissioner of Police & Another Ex parte Michael Monari & Another [2012] eKLR, where the court stated: “…Criminal law is not to be used oppressively to punish acts which in truth might be technically a breach of criminal law but which contain no real vice and which can only be best handled under a process other than the criminal process namely any of the different systems of civil remedies.” 25.The foregoing inclines this court to find and hold that the evidence on record is barely adequate for the Accused Person to be placed on his defence to give evidence in rebuttal. 26. Therefore, even if this court places the Accused Person on his defence, and the Accused Person elects to remain silent, the Accused Person will ultimately walk away a free man. In the words of Sharma J in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, placing the Accused Person on his defence, based on the prosecution’s evidence on record, will be for the sake of the joy of asking for an explanation or the gratification of knowing what the accused has to say about the prosecution’s evidence. 27. The reasons above are sufficient for this court not to engage in an academic exercise of placing the Accused Person on his defence.

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DETERMINATION 28. The upshot of the foregoing is that the Accused Person is acquitted under section 210 of the Penal Code for the offence of stealing by servant contrary to section 281 of the Penal Code. 29. The Accused Person is set at liberty unless otherwise lawfully held. 30. It is so ordered. Ruling read, signed and delivered in open Court at Bungoma this 25th day of March 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Ms. Achieng for ODPP C/A: Mr. Rioba

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