Republic v Juma (Criminal Case E116 of 2026) [2026] KEMC 695 (KLR)

3. The Accused Person was also called upon to plead to an alternative charge to count 1, which was a charge of handling stolen property contrary to section 322 (1)(2) of the Penal Code, whose particulars are: On the 22nd day of January 2026, at around 0300hrs, within Kanduyi Township, Namuyemba village in Bungoma South, within Bungoma County with others not before court the Accused Person otherwise than in the course of stealing dishonestly retained one goat whitish in colour knowing or having reason to believe them to be stolen goods 4. In count 2, the Accused Person faced a charge of stealing contrary to section 268 as read with section 275 of the Penal Code the particulars being: On the 02nd day of November 2025 at unknown time at Kanduyi township, Namuyemba village in Bungoma South Sub-County with others not before court the Accused Person stole one roll of barbed wires valued at Kshs. 30,000/= the property of Shadrack Wasike 5. 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. EVIDENCE Prosecution’s Case

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6. PW1 Oliver Masibo Khaemba is a farm manager at the complainant’s farm. He recalled that on 22 nd January 2026, while asleep, he heard goats bleating. He stepped out to check what was happening. He stepped out and decided to go and wake up PW2 within the farm. 7. It was while going to wake up PW2 that he met the Accused Person, who lives near the farm, walking away towards the gate with a she goat. He raised an alarm when PW2 and other members of the public, including Job, responded. 8. The Accused Person tried to escape, but PW2, Job, and him gave chase and caught complainant’s up with wife the about Accused the Person. incident. The He informed the complainant’s wife informed the police, who responded to the scene. 9. The police officers found the goat shed damaged. They also recovered a pair of pliers and a hoe handle from the shed. 10. He added that at some point, a barbed wire stolen from the farm was recovered from a scrap metal shop in Kanduyi when the scrap metal shop’s proprietor identified the Accused Person as the person who had sold him the stolen barbed wire. 11. PW2 Jairus Simiyu testified that he is the complainant’s caretaker. His testimony was that on 21 st January 2026 at around 0300hrs, he heard PW1 screaming “mwizi, mwizi…” He stepped out of the house and saw PW1 running. He joined PW1 in running after the

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Accused Person, who lives near the farm. They managed to arrest the Accused Person. 12. He added that he saw two goats outside, and that they recovered a pair of pliers and a hoe handle from the goat pen. Police officers thereafter responded and arrested the Accused Person. 13. PW3 No. 77813 Sgt. Maurice Ogola of Bungoma Police Station investigated this case while attached to Kanduyi Police Post. 14. He testified that on 22nd January 2026, at around 0300hrs, he received a call from the complainant’s home requesting him to accompany him to her home in Namuyemba, where a goat thief had been arrested by members of the public. 15. He accompanied the complainant’s wife to the scene where he re-arrested the Accused Person. He added that he recovered a pair of pliers from the Accused Person’s pocket. He led the Accused Person and the recovered goat to the police station. 16. Further, he testified that in the course of his investigations, he established that the Accused Person had sold a fence wire to a scrap metal dealer. He also took photos of the recovered goat and a pair of pliers. 17. He produced the photos, a certificate of print, and a pair of pliers as exhibits. He also stated that he could not trace the scrap metal dealer to testify.

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18. In cross-examination, he stated that he could not take photos of the Accused Person at the scene since the Accused Person was bleeding heavily as a result of having been beaten by members of the public. 19. He conceded that the scrap metal shop dealer who had reportedly sold the barbed wire to the Accused Person was the one to confirm if the Accused Person sold him the stolen barbed wire. The Accused Person’s Case 20.At the close of the prosecution's case, this court found and held that the Accused Persons had a case to answer. 21.Directions under section 211 of the Criminal Procedure Code were taken in Kiswahili in the presence of the Accused Person when the Accused Person elected to remain silent per Article 50 (2) (i) of the Constitution. 22.It is given that where an Accused Person elects to remain silent, the court is still obligated to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. This court draws inspiration from David Ochieng Aketch vs Republic [2015] eKLR, where the court observed that; “The Appellant on being put on his defence he opted to keep quiet. The right to keep quiet is a constitution right enshrined in Article 50 (2) (1) of the Constitution of Kenya 2010. It is one of the components of a fair trial neither should failure to testify be taken as an admission of guilty on an accused part. The trial Court is under a duty in such situation to evaluate the prosecution’s evidence and ensure that the prosecution has proved its case beyond any reasonable doubts…”

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ANALYSIS AND DETERMINATION 23. This court has given due regard to the charges preferred, the evidence adduced by the prosecution witnesses, and the Accused Person’s defence. The only issue for determination is whether the prosecution has proved its case against the Accused Persons beyond reasonable doubt. 24. This court will proceed to determine whether the prosecution proved the charges facing the Accused Person sequentially. 25. In count 1, the Accused Person faces a charge of stealing stock contrary to section 278 of the Penal Code, which provides thus: “278.If the thing stolen is any of the following things, that is to say, a horse, mare, gelding, ass, mule, camel, ostrich, bull, cow, ox, ram, ewe, whether, goat, or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years." 26. Stealing, on the other hand, is defined in Section 268 of the Penal Code in the following terms: (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.

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(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; 27. This court’s understanding of the authorities above is that for the prosecution to prove the charge of stealing stock beyond reasonable doubt against the Accused Person herein, the prosecution must lead evidence to prove that the Accused Person permanently deprived the complainant of his goat.

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28. The evidence led by PW1 and PW2, who work at the complainant’s farm, shows that the Accused Person was arrested at the complainant’s farm on the date of the incident at around 0300hrs, having stolen a goat from the goat pen. This evidence was corroborated by PW3, who visited the scene of crime on the date of the incident, while in the company of the complainant’s wife. 29. The evidence led by PW1, PW2, and PW3 on the circumstances under which the Accused Person was arrested within the complainant’s compound on the date of the incident was not impeached by the Accused Person even after cross-examination. 30. It is also noteworthy that the ownership of the goat herein is not in dispute. That goat belonged to the complainant. Further, a goat is something capable of being stolen under the law. 31. The fact that the Accused Person took the goat from its pen and began walking away with it without the complainant’s permission shows that the Accused Person had an intention of permanently depriving the complainant of his goat. 32. The Accused Person, having been found with the goat walking away at night in the complainant’s home, the evidential burden, not the burden of proof, shifted to him to explain the circumstances under which he was found walking away with the complainant’s goat from the complainant’s home on the date of the incident at 0300hrs, but he

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did not. He chose to remain silent even in the face of overwhelming evidence against him. 33. In the absence of a reasonable explanation by the Accused Person on the circumstances under which he was found in possession of the complainant’s goat on the date of the incident, the only explanation to be drawn is that the Accused Person stole the complainant’s goat on the date of the incident. 34. The foregoing inclines this court to find and hold that the prosecution proved beyond reasonable doubt that the Accused Person stole the complainant’s goat on the date of the incident as set out in count 1. 35. The finding above renders the alternative charge to count 1 moot. 36. In count 2, the Accused Person faced a charge of stealing contrary to section 268 as read with section 275 of the Penal Code. This court has already defined elsewhere in this judgment what constitutes stealing under section 268 of the Penal Code. It will not serve any purpose to reproduce that definition again. 37. 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.

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38. 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.” 39. 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. 40. The prosecution accused the Accused Person of stealing the complainant’s barbed wire on 02nd November 2025. 41. Interestingly, the barbed wire or a photo of the barbed wire, reportedly stolen by the Accused Person and that was reportedly recovered from a scrap metal shop in Kanduyi, was not produced before this court as an exhibit. The prosecution did not give any explanation for that omission. 42. It is also worth noting that the scrap metal shop attendant who reportedly bought the stolen barbed wire from the Accused Person did not testify before this court. The prosecution alleged that the said attendant could not be traced to attend court. 43. Whereas a witness's failure to attend court can be excused where the circumstances of a particular case demand, the prosecution’s failure to produce before this court the recovered barbed wire or a photo of the same to prove that the Accused Person stole the complainant’s barbed wire, which was later recovered, weakened the prosecution’s case with respect to count 2.

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44. The foregoing leaves no doubt in this court’s mind that the evidence led by the prosecution witnesses in support of count 2 was largely hearsay. The hearsay evidence on record in support of count 2 is not the kind of hearsay evidence admissible under section 33 of the Evidence Act. Therefore, the said hearsay evidence in support of count 2 is not of any evidential value. 45. The long and short of it all is that the prosecution failed to prove count 2 beyond reasonable doubt DETERMINATION 46. The upshot of the foregoing is that: a) The Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of stealing stock contrary to section 278 of the Penal Code. b) The alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code is moot. c) The Accused Person is acquitted 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. 47. Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 15th day of April 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of:

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Accused Person Mr. Maroro for ODPP C/A: Mr. Rioba

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