Republic v Sifuna (Criminal Case E105 of 2026) [2026] KEMC 603 (KLR)

3. PW1 Christine Naswa Sifuna testified that on the night of the incident, she received a call at around 2300hrs from PW3 and PW4, who told her that they had seen a lorry loading her machine-cut stones from her plot in Musikoma area. She reported the matter at Musikoma Police Station when two police officers accompanied her to the scene. 4. She found two people (PW2 and another) at the scene loading her machine cut stones on a lorry. The two people were arrested and led to Musikoma Police Station, where they disclosed that the Accused Person had sent them to carry the machine-cut stones. 5. She added that PW2 and the other person they found at the scene of crime had already stolen 39 machine cut stones valued at Kshs. 3,120/= 6. PW2 Chrispinus Wafula stated that he is a transport driver within Bungoma. He recalled that on 16 th January 2026 at around 1930hrs, the Accused Person visited him at his home and requested him to use his lorry to carry stones for him from Nambaya area within Musikoma. 7. The Accused Person boarded the lorry with him and directed him to a plot in Nambaya where they began loading the stones on the lorry. While loading the stones on the lorry, PW3 and PW4 went to the plot and questioned them. PW4 called PW1, who went to the scene with police officers who arrested him and his loader. 8. In cross-examination, he added that the Accused Person fled from the scene when PW3 and PW4 went to the scene.

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9. PW3 Benson Wamalwa Mutunguti testified that on the date of the incident while outside his house, he saw some people loading machinecut stones from his neighbour’s plot unto a lorry. 10. He moved closer to the scene when he saw PW2 and another person loading the machine-cut stones on the lorry. He screamed. Members of the public, including PW4, responded to his screams. He then called PW1 and informed her about what was happening on her plot. 11. He also stated that he did not find the Accused Person at the scene, and that PW2 and his loader were the ones who mentioned the Accused Person, leading to the Accused Person’s arrest. 12. PW4 Amos Wafula testified that on 16th January 2026 at around 2200hrs, he heard PW3 screaming: “mwizi mwizi…” He responded to the screams and went to where PW3 was. He found two people loading stones on a blue lorry. He called PW1 and informed her about the incident. 13. PW1 responded to the scene with police officers who arrested PW2 and his loader when PW2 disclosed that they had been sent to carry the stones by the Accused Person. He did not find the Accused Person at the scene. 14. PW5 Mary Juma is PW’s wife. She recalled that the Accused Person visited their home on the night of the incident and requested her husband to go carry the Accused Person’s stones in Nambaya.

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15. PW2, Benson, and the Accused Person left her home aboard lorry to go ferry the Accused Person’s stones. 16. Her husband (PW1) and Benson did not return home that night. She was informed by her mother-in-law the following morning that PW1 and Benson had been arrested. 17. She stated in cross-examination that the Accused Person was well known to her. 18. PW5 No. 255807 PC Levis Ochieng of Bungoma Police Station investigated this case while attached at Musikoma Police Post. 19. His testimony was largely a summary of the other prosecution witnesses' testimony, which this court need not reproduce here. The Accused Person’s Case 20. DW1 Kevin Simiyu Sifuna gave sworn testimony. He denied committing the offence herein. 21. He did not speak to the events of 16th January 2026. He recalled that he was arrested on 19th January 2026 by six people who visited his home aboard a motor vehicle. 22. He was led to Bungoma Police Station and later arraigned for this offence. ANALYSIS AND DETERMINATION 23. This court has given due regard to the evidence on record. The only issue for determination is whether the prosecution proved beyond

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reasonable doubt that the Accused Person stole the complainant’s machine-cut building stones on 16th January 2026. 24. The term “stealing” is defined in section 268 of the Penal Code as follows:(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

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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.(Emphasis added) 25. 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. 26. 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.”

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27. The ingredients of the offence herein, as can be gleaned from the authorities above, are that the prosecution must prove beyond reasonable doubt that the Accused Person took the complainant’s property, the complainant’s property taken by the Accused Person must be something capable of being stolen, and that the Accused Person must have taken the complainant’s property with the intention of permanently depriving the complainant of the same. 28. There is no dispute that the machine cut construction stones, which PW2 and his loader were found loading on a lorry belonged to the complainant. It is also not in dispute that the said stones are property capable of being stolen 29. On whether the Accused Person stole the said stones, this court notes that section 268 (5) of the Penal Code provides that a person shall not be deemed to take a thing unless he moves the thing or causes it to move. This is what is referred to as asportation in legal parlance. 30. In Harry Amwayi Etemesi v Republic [1997] KECA 28 (KLR), the Court of Appeal in defining or discussing asportation stated: “On 10th August, 1992, when the audit was conducted the appellant was prompted to produce all the money which he had but failed to produce the money in question. The fact that it was kept at a place less secure that inside the safe which was provided to the appellant is also telling about the appellant's intention. He had already converted it to his own use. It was immaterial that it was still in the owner's premises and inside the appellant's office. There was asportation, however limited, which clearly showed the appellant had the necessary animus furandi. In the old English case of R v. Poynton (1862) 7 L.T 434, the accused was a letter carrier. It was his duty to deliver letters

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sorted to him for that purpose and if from any cause he was unable to deliver them, to bring them back to the post office in his pouch. The accused did not deliver a letter containing money which had been given to him for purposes of delivery. Nor did he return it to the post office on completion of his round; but on being asked for it soon afterwards, he produced it from his pocket and gave a false excuse for not having delivered it. It was held that there was sufficient taking to constitute the crime of stealing.” (Emphasis added). 31. The authority above shows that asportation is deemed to have occurred even in instances where the complainant’s property is slightly moved from its original position by the Accused Person. 32. The evidence on record shows that PW2 had been contracted by the Accused Person to carry the complainant’s stones, and that PW2 and his loader were arrested while loading the complainant’s stones from the complainant’s plot onto a lorry. 33. The mere fact that PW2 and his loader had loaded the complainant’s stones on a lorry from the place where the said stones had been originally placed within the complainant’s plot constituted movement of the stones or asportation of the stones under the Accused Person’s instructions. 34. The asportation of the complainant’s stones onto the lorry under the Accused Person’s instructions was enough proof of the Accused Person’s animus furandi/intention to permanently deprive the complainant of her machine-cut construction stones. Accused Person’s Defence 35. This court has duly considered the Accused Person’s defence. The Accused Person simply denied committing the offences herein.

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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 36. 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 37. Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 22nd day of April 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for ODPP Accused Person C/A: Mr. Rioba

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