Republic v Mwendwa (Criminal Case E039 of 2025) [2026] KEMC 825 (KLR)

4. a. Edna Jane PW1 b. Brown Muoo PW2 c. No. 116548 PC Stephen Okinyi PW3 In my ruling dated 17/11/2025, I found that the accused person had a case to answer. Upon explaining to him his rights under Section 211 CPC and Article 50(2) (i) Constitution of Kenya, the accused person opted to give sworn evidence and was the sole witness in his defence. Prosecution’s Case 5. The prosecution case as narrated by the complainant PW1 is that her neighbor one Mama Taira called her upon noticing that her gate was opened and window glasses shattered. Upon receiving this information, she rushed to the scene (her home wherein she found several items missing which comprised a shopping of serval household items. She went to report the matter at Mutomo Police and also informed her son (PW 2) after she noticed that his clothes were missing. 6. Police visited the scene (PW3). On 30/1/2025, the complainant received a tip ofi from one Joyce Kamau which implicated the accused person. PW 3 proceeded to the home of accused person where he recovered several items from his house: a. Duvet (PEX 1) b. Kanga (PEX 2) c. Blue band (PEX 3) d. Frying pan(PEX 4) e. A sack (PEX 5) f. A brown pair of trousers –PEX 6. g. A radio (PEX 6) h. A Neon woofer and 4 speakers (PEX 9) 7. PW 2 a son to the complainant was called from his studies at Taita Taveta University and positively identified that the accused person had won his pair of Khaki trousers and his pair of checked boxers. PW 2 also identified a sack that he his mother’s name – “Jane 5 kg” inscribed on it. 8. PW 3 stated that the complainant and her son (PW2) were able to identify the recovered items. The accused person was not able to explain how the recovered item came into his possession with the evidence of broken glass window and the unlocked rear door, the investigating oficer concluded the accused person had committed the ofience herein and thus was arrested and charged. Defence Case 9. The accused person was put on his defence vide my ruling dated 17th November, 2025. In his defence he gave sworn evidence and was the sole witness thereof. 10. The accused person reiterated that he had not committed the ofience as alleged. He alleged that on 24/1/2025 his mother called him informing him of availability of “Kibarua” in Kitui town. 11. He proceeded to Kitui town on 25/1/2025 and took up the “Kibarua” on 26/1/2025 and 27/1/2025. On 28/1/2025 he returned home. On 29/1/2025 he went to a construction site. Upon return he found https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/825/eng@2026-03-24 2

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that his house had been broken into and the maize fiour, radio and phone missing which were alleged to have been stolen items. He was later assessed on 1/2/2025 and charged with this ofience. 12. In cross examination, the accused admitted that his house was searched. He however maintained that he owned the pair of trousers and duvet that was taken from his house. As for woofer he was categorical that the woofer was not recovered from his house. Analysis And Determination 13. The prosecution bears the burden of proving the case against the accused person to a standard of beyond reasonable doubt. This was set out in the celebrated case of Woolmington Vs DPP (193) AC 462 , in which it was held: “ Throughout the web of the English Criminal Law, one golden thread is always to be seen — that it is the duty of the prosecution to prove the prisoner’s guilt… If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.” 14. 15. In establishing the guilty of the accused person, the prosecution is called upon to prove the elements of the ofience. In the present case accused is charged with the ofience burglary contrary to Section 304(i) (b) (2) and stealing contrary to Section 279 of the Penal code. Section 304 (1) (2) provides; 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. (2) If the ofience is committed in the night, it is termed burglary, and the ofiender is liable to imprisonment for ten years. Odunga, J (as he then was) outlined the ingredients of the ofience in the case of Antony Kilonzo Mutuku Vs Republic (2019) eKLR as follows; In my view section 304(1)(a) deals with three scenarios. The first scenario is where a person breaks and enters into building, tent or vessel used as a human dwelling with intent to commit a felony therein. The ingredients here are that the person must break and enter into a building, tent or vessel. That building, tent or vessel must be one that is used as a human dwelling and the entry therein must be with the intention of committing a felony therein. Therefore, even without committing any ofience therein, the ofience thereunder is complete as long as the intent is proved. However, section 304(1)(b) applies where the person, being already inside the building, tent or vessel used as a human dwelling with intent to commit a felony therein, breaks out thereof. Therefore, once it is proved that a person was inside the building, tent or vessel used as a human dwelling and harbouring the intention of committing a felony, breaks out thereof, the ofience is complete without necessarily committing an ofience. The last scenario is still under section 304(1)(b) but here, the person, being already inside the building, tent or vessel used as a human dwelling with or without intent to commit a felony therein, does commit a felony therein and breaks out https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/825/eng@2026-03-24 3

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thereof. So under section 304(1)(a), the breaking is for purposes of gaining ingress while section 304(1)(b), the breaking is for purposes of egress” 16. Guided by the above authority I proceed to evaluate and analyse the evidence herein. One of the material elements is that the prosecution is that the prosecution must prove that the incident occurred at night. I have carefully considered the evidence of PW1 and PW2. None of these witnesses were able to state whether the ofience occurred at night or daytime. Indeed, the particulars of the charge sheet are also silent on the whether the incident occurred at night or daytime. It states that; “ On the 28th day of 2025 at unknown time at Mutomo location………….” 17. It is my finding that the charge sheet as well as the evidence of all prosecutions witness fails to prove that the alleged incident occurred at night. Based on failure to establish this element, I find that prosecution has failed to prove the ofience of burglary against the accused person. Alternative Count 18. In the alternative the accused person is charged with the ofience of handling stolen property. It is alleged that he otherwise than in course of stealing, dishonestly retained one duvet, sunking radio, woofer, weighing machine, 2kg maize fioor, one kg of blue band and clothes knowing or having reasons to believe to be stolen property 19. The ofience of handling stolen property is created under section 322(1) (2) of the Penal Code as follows: “ A person handles stolen goods if (otherwise than in the course of the stealing) knowing or having reason to believe them to be stolen goods he dishonestly receives or retains the goods, or dishonestly undertakes, or assists in, their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so. (2)A person who handles stolen goods is guilty of a felony and is liable to imprisonment with hard labour for a term not exceeding fourteen years.” 20. The elements of the charge of handling stolen property were summarized in Tembere vs. Republic [1990] KLR 353 (Githinji, J) as follows “ One of the important elements of the charge of handling is that the accused must know or have reason to believe that the goods were stolen … Another vital element of the charge of handling is that the accused must dishonestly receive or retain …” 21. In the present case,a sunking radio and clothes – a pair of trousers as well as a sack were recovered from the accused Person. PW3 was able to identify the rousers and a sack that had his mother’s name- Janeinscribed on it. The accused person was not able to explain how these, items came to his possession. According to me its is either accused person received the stolen items or had dishonestly retained them knowing or having reasons t believe that they were stolen goods. 22. The evidence of accused person that he owned the recovered items was not believable in that he was unable to explain how he owned a sack that that had complainant’s name inscribed therein. I discredit his evidence- which I find to be mere allegations which were not able to cast doubts on the evidence of the complainant and her son. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/825/eng@2026-03-24 4

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Disposition 23. In light of above analysis and findings, I acquit the accused person, under S. 215 CPC in the main Count of the ofience of burglary contrary to S.304(1)(2) of the Penal Code. 24. I find that the prosecution has proved the alternative count of handling stolen goods contrary to S.332 (1) (2) of the Penal Code. I hereby find him guilty and is accordingly convicted under S. 215 CPC JUDGMENT DELIVERED THIS 24TH MARCH, 2026; IN THE PRESENCE OF: Prosecution Counsel- Mr. Kimathi Court Assistant- Daniel Accused Person. HON. L.K. MWENDWA SENIOR PRINCIPAL MAGISTRATE https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/825/eng@2026-03-24 5

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