Republic v Tenge (Criminal Case E438 of 2025) [2026] KEMC 572 (KLR)

3. PW1 Winnie Wakhungu recalled that on 17th March 2025, the Accused Person who is her neighbour and friend borrowed her SIM card number 0112451XXX for use. She further stated that on the same date, she requested a loan of Kshs. 18,500/= from Albert Siranjofu. 4. She went to PW2’s home to confirm whether Siranjofu had sent Kshs. 18,500/= to the SIM card number 0112451XXX, which she had given the Accused Person. PW2 called Siranjofu who confirmed that he had sent Kshs. 18,500/= to her SIM card number 0112451XXX. 5. PW2 accompanied her to the Accused Person’s home to pick her SIM card only for the Accused Person to inform them that she had lost the SIM card. She decided to replace her SIM card. She also obtained her M-Pesa statement. 6. The M-Pesa statement she obtained revealed that Siranjofu sent her Kshs. 18,000/= but the same had been withdrawn, leaving her M-Pesa with a balance of Kshs. 3/=. 7. She added in cross-examination that she gave the Accused Person her SIM card’s PIN when she handed over her SIM card to her. 8. PW2 Hellen Muyoka Wekesa corroborated PW1’s testimony that Siranjofu confirmed sending Kshs. 18,500/= to PW1’s M-Pesa account. She also confirmed that she accompanied PW1 to the Accused Person’s home to pick up PW1’s SIM card, only for the Accused Person to tell them that she had lost PW1’s SIM card.

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9. In cross-examination, she stated that the Accused Person borrowed PW1’s SIM card since she did not have her own SIM card. She added that PW1 gave the Accused Person her SIM card’s PIN. 10. PW3 Yassin Wanyonyi Wasike recalled that on 17th March 2025, while at the Accused Person’s home, the Accused Person told her that her daughter Selly had sent her Kshs. 18,000/= through MPesa. 11. He later saw PW1 at the Accused Person’s home when he heard PW1 questioning the Accused Person about money that had been sent to her SIM card, which she had given to the Accused Person. The Accused Person did not give PW1 the money. PW1 left. 12. He added that after PW1 had left, he heard the Accused Person to send Kshs. 5,000/= to her brother Emmanuel Wakhungu, Kshs. 900/= to Martin (PW4), and Kshs. 12,500/= to Daniel Makata. The Accused Person then broke the SIM card after the transactions. 13. PW4 Martin Nyongesa Simiyu testified that on 21st March 2025, he was arrested by police officers alongside Daniel Makata for questioning about the money he had received through his M-Pesa number 0700697XXX. 14. He stated that on 17 th March 2025, he told Daniel Makata to go to the Accused Person’s home to recover Kshs. 900/= which the Accused Person owed him. He confirmed receiving Kshs. 900/= that

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day through M-Pesa, and that the Accused Person passed by his home to confirm if he had received the Kshs. 900/=. 15. He added that Daniel told him that the Accused Person had sent her Kshs. 12,500/= to withdraw for her since her mobile phone was reportedly almost shutting down. 16. PW5 No. 93453 PC Tobias Odiwuor Odede of Bungoma Police Station investigated this case. His testimony was largely a rendition of the evidence by the other prosecution witnesses, which this court need not reproduce in this judgment. 17. He produced PW1’s Mpesa statement dated 18 th March 2025 and the investigations diary as exhibits. The Accused Person’s Case 18. DW1 Mary Nasimiyu Tenge gave unsworn testimony. She denied committing the offence, given that her name did not appear in PW1’s Mpesa statement herein. ANALYSIS AND DETERMINATION 19. This court has carefully considered the evidence on record. The only issue for determination is whether the prosecution proved beyond reasonable doubt that the Accused Person committed the offence herein. 20. This court now proceeds to determine whether or not the Accused Person committed the offences facing him. 21. Stealing is defined in section 268 of the Penal Code as:-

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(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; (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.

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(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. 22. 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. 23. In Robert Onchwari Orina & another vs Republic (2021) eKLR, Nyakundi J held that:“………….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.” 24. 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.

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25. PW1 and PW2 testified that Albert Siranjofu sent Kshs. 18,500/= to PW1’s M-Pesa number 0112451XXX while that phone number’s SIM card was in the Accused Person’s custody. The M-Pesa statement on record beyond reasonable doubt that Siranjofu sent Kshs. 18,500/= to PW1’s said phone number on 17th March 2025 at 1524hrs. 26. The M-Pesa statement on record also shows that some minutes after Siranjofu had sent Kshs. 18,500/= to PW1’s M-Pesa account, there were a series of M-Pesa transactions involving sending money to several people, including Emmanuel Wakhungu, Daniel Makata, and PW4. 27. The transactions above corroborate PW3’s testimony that while in the Accused Person’s house, he heard her telling her husband to send money to Emmanuel, Daniel Makata, and PW4.PW4 confirmed that he received Kshs. 900/= from PW1’s M-Pesa number as set out in the M-Pesa statement on record when he sent Daniel to recover Kshs. 900/= which the Accused Person owed her. 28. The M-Pesa statement on record, when read together with PW1 – PW4’s testimonies prove beyond reasonable doubt that the M-Pesa disbursements made from PW1’s M-Pesa account after Siranjofu had sent Kshs. 18,500/= to that M-Pesa account were made when the Accused Person had PW1’s SIM card. 29. PW3 and PW4’s testimony, on the other hand, proves that the Accused Person was the one who made the above M-Pesa transactions. The Accused Person could easily make those transactions since PW1 had disclosed her SIM card PIN to her. 30. Money is something definitely capable of being stolen per section 268 of the Penal Code. The Accused Person’s act of sending PW1’s money to different people without PW1’s authority was an overt act of permanently depriving PW1 of her money. Accused Person’s Defence

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31. This court has duly considered the Accused Person’s defence. The Accused Person simply denied committing the offences herein. Therefore, the Accused Person’s defence is dismissed in its entirety for being a mere denial which did not cast any reasonable doubt on the prosecution’s case. DETERMINATION 32. The upshot of the foregoing is that 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 33. 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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