Republic v Deno (Criminal Case E437 of 2025) [2026] KEMC 571 (KLR)

inch, 6 kg gas cylinder with burner, assorted scrap metal, a Toyota harrier slim engine all valued at Kshs. 150,000/= 3. The Accused Person also face an alternative charge of handling stolen property contrary to section 322 (1)(2) of the Penal Code whose particulars are: On the 17th day of April 2025 at around 1619hrs at Bungoma Township in Bungoma South Sub-County within Bungoma South Sub-County otherwise than in the course of stealing, the Accused Person was dishonestly found with one tv Vitron 32 inch knowing or having reasons to believe it to be stolen property 4. In count 2, the Accused Person faced a charge of having suspected stolen property contrary to section 323 of the Penal Code the particulars being: On the 17th April 2025 at Romima area at around 1700hrs in Bungoma South Sub-County within Bungoma County having been detained by No. 95185 PC Cyrus Ayabei as a result of the exercise of powers conferred by section 26 of the Criminal Procedure Code, had in his possession a vitron tv 43” serial number V4388FS2346MC1888, Vitron TV 32”, tecno tablet black, assorted tv brackets, tv stand, navi force watch, brighlaric watch, rotoer machine, sumsung phone touch, itel phone silver, itel awesome touchscreen, tecno camon 20 touch screen, LG slide mobile phone, itel button phone, dumbel black, floor carpet,

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water dispenser make MIKA serial number AQ20230101986, two remote controls, a samsung remote control reasonable (sic) suspected to be stolen or unlawfully obtained 5. The Accused Person also faced in count 3 a charge of being in possession of bhang contrary to section 3 (1) as read with section 3 (2) (A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022 the particulars being: On the 17th day of April at around 1700hrs at Romima area in Bungoma South Sub-County within Bungoma County, the Accused Person was found in possession of 76 rolls of a substance believed to be Cannabis Sativa with a street value of Kshs. 50,000/= which was not in a medically preparation form 6. The Accused Person denied all the charges facing him. Consequently, this matter was set down for hearing for the prosecution to prove their case against the Accused Person beyond reasonable doubt. 7. The evidence adduced before this court by the prosecution and the defence is summarized below. EVIDENCE Prosecution’s Case 8. PW1 Kennedy Misiko Were recalled that he woke up on 17 th April 2025 at around 0700hrs only to find his house’s main door open yet he had locked the said door the previous night. He noticed that his 32”

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vitron tv and gas cylinder were missing from the kitchen. He reported the incident at Musikoma Police Station. 9. Later in the door he walked around Bungoma town searching for his missing tv in second hand electronics shops. He met Godfrey, whom he told that he was looking for a second hand tv. He shared his number with Godfrey for communication. 10. The Accused Person called him at around 1400hrs informing him that Godfrey had told him that he was looking for a Vitron tv. The Accused Person offered to sell him at Vitron tv at Kshs. 10,000/=. 11. He called police officer Anyole and informed him that the Accused Person had a tv. He agreed with the Accused Person to meet behind the Bungoma Governor’s office to test the tv the Accused Person was offering to sell. He alerted police officers about the Accused Person’s movements. 12. The Accused Person pulled at the appointed place in a car where he alighted with the Vitron tv and proceeded to where he was with police officer Anyole. The other motor vehicle occupants drove off upon seeing police officer Anyole. He identified the vitron tv the Accused Person had as his missing tv. 13. They led the Accused Person to Bungoma Police Station. The Accused Person thereafter led him and the police officers to his house where a search was conducted leading to the recovery of several

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mobile phones, damaged tvs, carpets and wrist watches from the house. 14. He also stated that the receipt dated 06 th July 202 showed that he bought the Vitron tv serial number VST 2937R3006PA8946. 15. In cross-examination, he stated that the Accused Person tampered with his television’s serial number. He reiterated that he accompanied police officers and the Accused Person to the Accused Person’s house where the Accused Person opened the door. 16. PW2 Musa Shibwabo is a community policing member in Namachanja area. He testified that on 17 th April 2025 at around 1730hrs, he received a call from APC Etuku who requested Martin Sungura, Ignatius Luvembe, and him to accompany him to Tourist Hotel area to effect an arrest of an electronics theft suspect. 17. They proceeded to where APC Etuku had directed them where they met CPL Abdi Jillo. They later arrested the Accused Person with a black 32” vitron tv while entering a shop. They led the Accused Person to the police station. 18. The Accused Person thereafter led them to his house where they recovered the items listed in count 2 and 72 rolls of bhang. They then took photos of the Accused Person with the recoveries and prepared an inventory.

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19. In cross-examination, he could not tell whether PW1 was present during the Accused Person’s arrest. He added that the Accused Person was arrested with the vitron tv. 20. PW3 No. 236353 CPL Abdi Jillo stated that on 17th April 2025 while in Bungoma town with APC Etuku, PW1 called APC Etuku and informed him that his house had been broken into on 16 th April 2025, and that he had received information that someone was selling a second hand tv. 21. PW1 also told them that they had agreed with the seller of the second hand tv to meet in a shop near Tourist Hotel. They proceeded near the place directed by PW1 while in the company of community policing officers and other members of the public where they arrested the Accused Person with a 32” vitron tv. 22. He added that the Accused Person later led them to his house where they recovered 72 rolls of bhang and the items listed in count 2. 23. PW4 No. 228069 APC Stephen Etugu testimony was largely a regurgitation of the testimony of the preceding prosecution witnesses. 24. PW5 No. 95185 PC Cyrus Kiplagat Ayabei investigated this case. He produced PW1’s television purchase receipt dated 06 th July 2024 as an exhibit to prove that the PW1 owned the 32” vitron tv recovered from the Accused Person. 25. He also visited PW1’s house where he took photos to show damage to PW1’s door, and the tv wall bracket left behind after theft of

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the television. He produced the photos and the accompanying certificate of print as exhibits. 26. He further produced the 76 rolls of suspected bhang, rolling papers, the items set out in count 2 and the inventory as exhibits. 27. It was also his testimony that he questioned the Accused Person about the ownership of the recoveries made from his house, but the Accused Person failed to give a proper account of how he got into possession of the said recoveries, hence his conclusion that the recoveries were suspected stolen goods. The Accused Person’s Case 28. DW1 Dennis Were gave sworn testimony. He recalled that on 17th April 2025, he was in his carpentry workshop near Ola Petrol Station when three people who introduced themselves as police officers went there and informed him that they had been sent by Godfrey. 29. The police officers told him that he had not handed over to Godfrey the chair Godfrey had contracted him to make for him. He offered to pay Godfrey his money but the police officers declined that offer. 30. He further stated that the police officers led him to the police station, where he was booked in the police cells, only to be arraigned for the offences herein. 31. He denied committing the offences herein.

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ANALYSIS AND DETERMINATION 32. This court has given due regard to the charges preferred, the evidence adduced by the prosecution witnesses, the accused person’s defence, as well as the Accused Person’s written submissions. 33. It is this court’s considered view that the only issue for determination is whether the prosecution has proved its case against the Accused Persons beyond reasonable doubt. 34. In count 1, the Accused Person is facing a charge of burglary contrary to section 304 (2) and stealing contrary to section 279 (b) of the Penal Code. The offence of burglary is set out under section 304(2) of the Penal Code as follows: 304. Housebreaking and burglary (1) Any person who— (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit a felony therein, or having committed a felony in any such building, tent or vessel, breaks out thereof, is guilty of the felony termed housebreaking and is liable to imprisonment for seven years.

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(2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years. 35. A reading of the provisions of the law above shows that for the prosecution to prove the offence of burglary, the prosecution must prove beyond reasonable doubt that the Accused Persons broke into a building, tent, or vessel used as a dwelling house, and that the breaking into must have been done at night. 36. PW1 testified that when he woke up in the morning of 17 th May 2025 at around 0700hrs, he found the main door to his house which he had locked the previous night open. 37. Section 4 of the Penal Code defines a dwelling house to include any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time uninhabited; a building or structure adjacent to or occupied with a dwelling-house is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise.

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38. There is no dispute that PW1 stays in the house, which was reportedly broken into. That house is a dwelling house within the meaning of section 4 of the Penal Code. 39. The investigating officer on the other hand stated that he visited the scene and took photos of damage to PW1’s door showing that PW1’s house had been broken into. 40. Breaking is defined in section 303 of the Penal Code as follows: “303.Definition of breaking and entering (1).A person who breaks any part, whether external or internal, of 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 a building, or an opening giving passage from one part of a building to another, is deemed to break the building. (2).A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building." 41. Going by the definitions above, breaking is complete where one enters another person’s house without permission with or without damage to gain access to the house.

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42. The scene photos placed before this court showing damage to PW1’s door coupled with the fact that the person or persons who entered PW1’s house did not have the permission to do so inclines this court to find that the prosecution proved beyond reasonable doubt that PW1’s dwelling house was broken into at night. 43. The second limb of the charge facing the Accused Person is set out under section 279 (b) of the Penal Code which provides as follows in this regard: “279. Stealing from the person; stealing goods in transit, etc. If the theft is committed under any of the circumstances following, that is to say (a)… (b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; …the offender is liable to imprisonment for fourteen years.” 44. The foregoing shows that for the prosecution to prove beyond reasonable doubt that the offence under section 279 (b) of the Penal Code was committed, they must lead evidence to show that a dwelling house was broken into and property whose value exceeds Kshs. 100/= stolen therefrom.

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45. This court has already made a finding that the house broken into in this case is a dwelling house. The next question is whether anything whose value exceeds Kshs. 100/= was stolen from that dwelling house. 46. PW1 testified that he lost his television and other household property on the date of the incident. He placed before this court a receipt dated 06th July 2024 from Phonetel Electronic and Phone Accessories showing that he bought a 32” Vitron tv serial No. VST2937R3006PA8946 at Kshs. 12,000/=. 47. Whereas, the serial number of the tv recovered from the Accused Person had been tampered with, PW1 stated that he identified his tv through the repair marks on it since the said tv had been previously repaired before the incident. 48. The evidence led by PW1 on his purchase of a 32” Vitron tv and his identification of the 32” Vitron tv recovered from the Accused Person as his missing tv was not impeached by the Accused Person even after cross-examination. 49. Given the above, it is this court’s finding that a 32” Vitron tv valued at Kshs. 10,000/= was stolen from PW1’s dwelling house on the date of the incident. 50. The next ingredient of the offence in count 1 is the identity of whoever broke into PW1’s house and stole therefrom.

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51. It is given that no one saw the Accused Person breaking into PW1’s house. There is no doubt that the prosecution largely based on the recovery of PW1’s 32” Vitron tv from the Accused Person just some hours after the same had been reportedly stolen to charge the Accused Person with count 1. Simply, the prosecution’s case in count 1 was grounded on the doctrine of recent possession. 52. In determining whether the doctrine of recent possession can be invoked in the circumstances of this case, this court seeks guidance from 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 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

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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.” 53. In the present case, the Accused Person was found with PW1’s 32” Vitron tv which had only a few hours earlier been stolen from PW1’s house. PW1 positively identified the said tv as his; and the Accused Person never contested the said tv’s ownership. 54. Given that the Accused Person was found in possession of the property that PW1 positively identified as his property which was stolen from his dwelling house on the date of the incident, the evidential burden, not the burden of proof, shifted to the Accused Person to give a reasonable explanation on how he got into possession of PW1’s stolen property. 55. The Accused Person did not offer any explanation why PW1’s recently stolen 32” Vitron tv was in his possession. Simply put, the Accused Person did not account for his possession of PW1’s 32” Vitron tv that was recovered from him. 56. The above, without more, is sufficient to link the Accused Person to the breaking into and stealing a 32” Vitron tv from PW1’s dwelling house at night on the date of the incident. 57. In the circumstances, this court holds and finds that the prosecution properly relied on the doctrine of recent possession in identifying the Accused Person as the perpetrator of count 1 herein.

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58. Having found that count 1 was proved beyond reasonable doubt, it follows that the alternative count to count 1 is moot. 59. The charge in count 2 was having suspected stolen property contrary to section 323 as read with section 36 of the penal code. Section 323 of the Penal Code provides thus:“Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanor” Section 26(1) 60. of the Criminal Procedure Code provides that:(1) A police officer, or other person authorized in writing in that behalf by the Inspector-General of the National Police Service, may stop, search and detain— (a) ................................... (b)..................................... (c) any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. 61. The ingredients of the above offence can be gleaned from Mwaura & 2 others v Republic (Criminal Appeal 48 of 2024) [2025] KEHC 4983 (KLR) where the court stated as follows:

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“Section 323 of the Penal Code provides that any person detained under Section 26 of the Criminal Procedure Code who is found in possession of, or conveying, anything reasonably suspected of being stolen or unlawfully obtained, and who fails to satisfactorily account for it, is guilty of a misdemeanour.” 62. In Koech v Republic [1968] EALR 109, it was clarified that under Section 323, mere possession of suspected stolen property does not constitute the offence; rather, it is the failure to satisfactorily explain such possession that gives rise to criminal liability. 63. Clearly, the authorities above are in agreement that the prosecution is deemed to have proved the offence in count 2 beyond reasonable doubt where the prosecution leads evidence to show that the Accused Person was found in possession of suspecyed stolen property but failed to satisfactorily explain such possession. 64. The prosecution witnesses led evidence to show that on 17 th April 2025 after his arrest, the Accused Person led police officers and PW1 to his house in Romima area where the items listed in count 2 were recovered. An inventory was prepared to that effect and the Accused Person duly signed the same.

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65. The signing of that inventory by the Accused Person was witnessed by PW1 – PW4 who were present in the Accused Person’s house when the recoveries in count 2 were made. 66. Given the adequate evidence on record on whether the Accused Person signed the inventory, this court is of the considered view that the Accused Person’s submission that the inventory herein needed to be submitted to a document examiner to confirm whether he signed the same lacks any basis. 67. Therefore, it follows that the Accused Person was found in possession of the recoveries made in count 2. 68. Whereas the recoveries made from the Accused Person’s house are assorted electronics, and household items which one can ordinarily own and easily purchase, this court wonders how the Accused Person came into possession of assorted tv remote controls, assorted tv wall brackets, assorted mobile phones, and assorted tv wall brackets yet there is no evidence on record to suggest that the Accused Person runs an electronics shop. 69. It is for the reasons above that this court draws the inevitable conclusion that the recoveries listed in count 2 made from the Accused Person’s house are suspected stolen property.

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70. The Accused Person did not give any reasonable explanation on how he came into possession of the said suspected stolen property. 71. The foregoing inclines this court to find and hold that the prosecution proved beyond reasonable doubt that the Accused Person committed the offence of having suspected stolen property contrary to section 323 of the Penal Code. 72. Lastly, in count 3, the prosecution was obligated to prove beyond reasonable doubt that the Accused Person was found in possession of bhang contrary to section 3 (1) as read with section 3 (2) (A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022. 73. This court has already made a finding that the inventory on record proved beyond reasonable doubt that the recoveries in count 2 and the 76 rolls of a substance believed to be bhang were recovered from the Accused Person. 74. The next hurdle the prosecution was required to surmount in count 3 before this court convicts the Accused Person was to prove beyond reasonable doubt that the substance in the 76 rolls recovered from the Accused Person was bhang. 75. Where an Accused Person denies being in possession of bhang, the substance suspected to be bhang recovered from an Accused

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Person is usually proved to be bhang through a government analyst’s report. 76. The proceedings before this court show that none of the prosecution witnesses marked the government analyst report dated 03rd July 2025 filed herein for identification or produced the same as an exhibit. 77. An exhibit only becomes part of the court record after the same has been produced as an exhibit. That was not done in this case. 78. In any event, the government analyst was not called before this court to produce the government analyst report dated 03 rd July 2025. Ordinarily, per section 77 of the Evidence Act, the maker of a report is required to produce such a report to accord the Accused Person an opportunity to cross-examine the maker of a such a report on the contents of a report (see Julus Karisa Charo v Republic (2005) eKLR). 79. This court acknowledges the fact that there are instances when the prosecution is permitted to rely on an investigating officer to produce an expert report on behalf of the maker where the maker cannot be traced despite the exercise of due diligence by the prosecution (see James Bari Munyoris v Republic (2017) eKLR).

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80. However, as stated earlier in this judgment, none of the prosecution witnesses, including the investigating officer, produced the government analyst report dated 03rd July 2025 as an exhibit. 81. The long and short of it all is that no government analyst report was placed before this court by the prosecution to prove beyond reasonable doubt that the 76 rolls of the substance recovered from the Accused Person was bhang. 82. When confronted with a situation like this where the government analyst report was not produced as an exhibit to prove that the substance before the court was bhang, Dulu J in George Mwangi Njenga v Republic [2007] KEHC 3376 (KLR), stated thus: “The failure of the prosecution to produce the Government Analyst’s report in court means that the court could not say with certainty that the alleged plant material was cannabis sativa. Therefore, the appellant should not have been convicted of being in possession of cannabis sativa. It follows that both the conviction and resultant sentence cannot stand.” 83. Given the reasons above and guided by the authority above, this court returns a finding that the prosecution failed to prove count 3 beyond reasonable doubt. Accused Person’s Defence 84. This court has duly considered the Accused Person’s defence. The Accused Person simply denied committing the offences herein.

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85. In the circumstances, the Accused Person’s defence is dismissed in its entirety for being a mere denial. DETERMINATION 86. The upshot of the foregoing is that: a) The Accused Person is convicted under section 215 of the Penal Code for the offence of burglary contrary to section 304 (2) and stealing contrary to section 279 (b) of the Penal Code b) The alternative charge to count 1 of handling stolen goods contrary to section 322 of the Penal Code is moot c) The Accused Person is convicted under section 215 of the Penal Code for the offence of having suspected stolen property contrary to section 323 of the Penal Code d) The Accused Person is acquitted under section 215 of the Criminal Procedure Code for the offence of being in possession of bhang contrary to section 3 (1) as read with section 3 (2) (A) of the Narcotic Drugs and Psychotropic Substances (Control Amendment) Act, 2022 87. Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 18th day of March 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE

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In the presence of: Accused Person Ms. Karani for ODPP C/A: Mr. Rioba

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