Republic v Wekesa & another

6. In cross-examination, she reiterated that she gave the 1st Accused Person the laundry basket containing her mobile phone and money. 7. PW2 Naftali Shisoka Anyera testified that he is the complainant’s husband. He testified that he received a call from PW1, who informed him that she had lost her Nokia C32 mobile phone and Kshs. 10,000/= while relocating. He added that he had bought that mobile phone for PW1 from M-Kopa. 8. PW3 Jimmy Masibo Khaemba is a security guard within Bukembe. His testimony was that on 05th November 2025 at around 1800hrs, he saw the Accused Persons, who are well known to him, carrying Nigerian bags. The Accused Persons told him that they were helping PW1 to relocate. 9. He added in cross-examination that PW1 later told him that she had lost her property during the relocation. He could not tell the property PW1 lost during the relocation. He further stated that he directed police officers to the Accused Persons’ house and Sammy’s house for search. 10. PW4 Scholastica Makokha Nekesa testified that she is a treasurer where PW1 is a member. She recalled that on 03rd November 2025, she gave PW1 Kshs. 54,000/= chama money when PW1 deposited Kshs. 24,000/= into her M-Pesa account and kept Kshs. 30,000/= in cash. 11. PW4 Kevin Kalabayi recalled that on 05th November 2025 at around 2000hrs, PW1 requested him to help her in relocating her items from her shop to another house. The 2 nd Accused Person helped him in ferrying PW1’s bed to the house where PW1 was relocating to. He added that the Accused Persons continued relocating PW1’s household items as he fastened PW1’s bed in the house she had relocated to. He further stated that Njeri locked the house after he had fastened PW1’s bed. 12. He remembered that when he went to receive his pay from PW1, PW1 realized that her mobile phone was missing. PW1 thereafter reported the matter to the police. 13. He conceded in cross-examination that he did not see the 1 st Accused Person carrying anything away during the relocation. 14. PW5 No. 78XXX PC Nicholas Rotich of Bukembe Police Station investigated this case. His testimony was a summary of the evidence adduced by the other prosecution witnesses. He added that his search at the Accused Persons’ home as well as Sammy’s home did not yield any recovery. ANALYSIS AND DETERMINATION 15. This court has given due regard to the evidence on record. It is this court’s duty at this stage to answer the question of whether the prosecution has established a prima-facie case against the Accused Person. 16. The term prima facie is defined by the Black’s Law Dictionary, 18th edition, as:

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” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” 17. In Ronald Nyaga Kiura vs. Republic [2018] eKLR, the court defined a prima facie case as follows: “…A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence.” 18. Guided by the authorities above, the question that rings in the mind of this court at this stage is whether the evidence on record is sufficient for this court to return a guilty verdict if the Accused Persons give no other explanation in rebuttal. 19. The Accused Persons are facing a charge of stealing contrary to section 268 as read with section 275 of the Penal Code. 20. 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. 21. 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.” 22. 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

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the complainant’s property with the intention of permanently depriving the complainant of the same. 23. It thus follows that before the Accused Persons are placed on their defence in this case, this court must be satisfied that the prosecution has established a prima-facie case that the Accused Persons took the complainant’s property, the complainant’s property taken by the Accused Persons must be something capable of being stolen, and that the Accused Persons must have taken the complainant’s property with the intention of permanently depriving the complainant of the same. 24. This court will begin its analysis of whether the prosecution has established a prima facie case against the Accused Persons by first determining whether the prosecution has established a prima facie case that the Accused Persons took the complainant’s property. 25. It is common ground that the complainant (PW1) engaged the Accused Persons and other people, including PW4 and Sammy, to help her in relocating when the offence herein was reportedly committed. Anne Njeri also participated in the relocation. 26. There is also no dispute that no one saw the Accused Persons stealing the items set out in the charge sheet and that none of the said stolen items were recovered from any of the Accused Persons’ houses. In the circumstances, it follows that the prosecution sought to rely on circumstantial evidence for this court to convict the Accused Persons herein. 27. The Court of Appeal set out the parameters to be met in the application of circumstantial evidence in securing a conviction in Abanga Alias Onyango vs. Republic CR. App No. 32 of 1990 (UR) as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: a) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, b) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, c) the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was committed by the accused and no one else.’’ 28. In Sawe vs. Republic [2003] KLR 364, the Court of Appeal reiterated that to justify a conviction on circumstantial evidence, “…the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co - existing circumstance weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of

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innocence remains with the prosecution. It is a burden which never shifts to the accused.’’ 29. The common thread running through the authorities above is that circumstantial evidence can only be relied upon by the prosecution to sustain a conviction where the circumstantial evidence is so cogent that the only inevitable conclusion to be drawn is that the Accused Person and not anyone else committed the crime. 30. This court has already stated earlier in this ruling that PW1’s relocation on the date of the incident involved the Accused Person and other people, including PW4, Sammy and Anne Njeri. 31. Interestingly, neither Sammy nor Anne Njeri testified before this court on the circumstances under which the offence herein was reportedly committed. The prosecution did not give any explanation for this omission. 32. It is this court’s considered view that, given the involvement of people other than the Accused Persons in PW1’s relocation on the date of the incident coupled with absence of evidence of any person having seen the Accused Persons stealing the complainant’s property set out in the charge sheet, this was a proper case for the investigating officer to pursue other investigative leads, including tracking the complainant’s lost mobile phone. 33. The investigating officer did not state any steps he took in tracking the complainant’s stolen mobile phone. Such evidence would have helped the prosecution in narrowing down to the person or persons involved in stealing the complainant’s property on the date of the incident. 34. In the absence of the evidence alluded to in paragraphs 32 and 33 above and given the circumstances of this case, the circumstantial evidence on record is barely adequate for this court to find that the prosecution has established a prima facie case that no other person other than the Accused Persons took the complainant’s property set out in the charge sheet on the date of the incident. 35. The long and short of it all is that even if this court places the Accused Persons on their defence and the Accused Persons elect to remain silent, the Accused Persons will ultimately walk away scot free. 36. In the words of Sharma J in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, placing the Accused Persons on his defence, based on the prosecution’s circumstantial evidence on record, will be for the sake of the joy of asking for an explanation or the gratification of knowing what the accused has to say about the prosecution’s evidence. Without doubt, placing the Accused Persons on their defence based on the circumstantial evidence on record will be wasting scarce judicial resources. DETERMINATION 37. In sum, the Accused Persons are acquitted under section 210 of the Criminal Procedure Code for the offence of stealing contrary to section 268 as read with section 275 of the Penal Code.

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38. The Accused Persons are set at liberty unless otherwise lawfully held. 39. Orders accordingly. Ruling read, signed and delivered in open Court at Bungoma this 24th day of August 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Persons Ms. Mulwa for ODPP C/A: Mr. Rioba

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