Republic v Ware

noted that the police initially directed her to go home with the meat and return once an arrest had been made. 5. Police Constable Ekai Dominic (PW2), attached to Majengo Police Post, testified as the investigating officer. He took Hawo’s report on the day of the incident, photographed the carcass, and recorded statements from two eyewitnesses, Mohammed Abdi and Bishar Mohammed Osman. PC Dominic noted that the accused immediately went into hiding to evade justice. The accused was eventually apprehended nearly a month later on 15/5/2026, by the OCS Masalani, and transferred to Hola Police Station where PC Dominic processed his case file. The officer testified that he knew the accused well due to a documented criminal history involving similar stock theft offences. 6. During cross-examination, PC Dominic stood firmly by his investigation, reiterating that the accused was the individual who slaughtered the goat and ran away, and confirmed that multiple criminal cases hung over him. 7. Bishar Mohammed Osman (PW3), a local herdsman, provided eyewitness testimony. He recounted that on the day of the incident, Abdi approached him in a state of high tension, reporting that a thief had threatened him with a machete and stolen a goat. Bishar accompanied Abdi to track the thief and caught the suspect in the act of separating the meat from the intestines. Upon noticing their approach, the thief grabbed a bag containing the meat and fled. Bishar pursued him closely until the suspect dropped the bag and escaped. Bishar identified the accused in court as the fleeing thief, stating he recognized him from his long-standing reputation for goat theft. 8. In his cross-examination, Bishar firmly maintained that he saw the accused with his own eyes. He also clarified that the accused had directly threatened Abdi rather than himself. 9. That marked the close of the Prosecution case. The accused was then placed on his defence

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THE DEFENCE CASE 10. The accused, Said Bidhacha Ware (DW1), vehemently denied the allegations. He stated that he runs a legitimate kiosk and hotel business selling miraa and Mogoka in Masalani ya Chini, which has sustained his family since 2013. He maintained that he was working at his premises the entire day of the alleged incident. To dismantle the prosecution's credibility, he pointed out significant contradictions in their testimonies, noting that PW1 claimed the incident happened on a Wednesday in a school compound, whereas PW3 claimed it happened on a Friday at Mboji farm. He further argued that it was illogical for him to be a fugitive when his business operates a mere 100 meters from the police station, where he regularly saw the investigating officers. 11. Under cross-examination by the prosecutor, Mr. Kagema, the accused admitted he did not possess county council business receipts, claiming small traders in his area were exempt from them. He was also confronted with the official charge sheet confirming his arrest date as 15/5/2026. 12. Ali Omar Amuma (DW2), a local farmer, testified in support of the accused. He described the accused as a peaceful man who was never known to cause trouble. He stated that he went to the accused's kiosk at around 3:00 PM on the day of the arrest to buy Mogoka and witnessed three male police officers taking him into custody. 13. Under cross-examination, Ali admitted that he had never volunteered this information to the police during the investigation, he did not visit the accused in the cells. 14. Fatuma Haluwa Komora (DW3), a neighboring shopkeeper, served as the final defense witness. She testified that she knew the accused as an industrious neighbor who ran his food and miraa business from 6:00 AM until 11:00 PM daily. She confirmed witnessing his arrest at his business premises but stated she had never seen him engage in any criminal activity.

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15. During cross-examination, Fatuma, stated that she, as a small business owner, did receive county council receipts, and that all businesses in that area were issued them. She concluded by stating she did not follow up on the reasons behind his arrest or his subsequent arraignment in court. 16. That marked the close of Defence case. SUBMISSIONS 17. The accused was granted time to file written submissions. He filed the submissions dated 3/8/2026 in which he highlighted several instances of contradictions in the testimonies of the prosecution witnesses. The contradiction was as to regards the scene of crime whether it was at Fanjua Primary or Boji farmers. He also mentioned that none of the three witnesses was an eyewitness to the offence and all were giving hearsay testimony. He further raised an issue that there was no photographic evidence of him either with the bag, carcass or with a panga. 18. The prosecution did not file submissions ISSUES FOR DETERMINATION AND ANALYSIS 19. Section 289 of the Penal Code provides as follows: Any person who kills any animal capable of being stolen with intent to steal the skin or carcass, or any part of the skin or carcass, is guilty of an offence and is liable to the same punishment as if he had stolen the animal. 20. In Nicholus Watuma Mutua vs. Republic [2015] KEHC 2158 (KLR) the court listed the following two elements as the requirements to be proven for the commission of such an offence: There are two elements that need to be proved in the commission of the offence. The first is that of the killing of an animal capable of being stolen, and the second element is the intention to steal the skin or carcass of the said animal or part thereof. This offence is provided

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under Part XXVII of the Penal Code which is titled “Offences Allied to Stealing”, and the act of killing in the said offence is the act that appropriates the property of another. 21. The court therefore has to determine if these two elements have been proven by the prosecution beyond reasonable doubt to warrant conviction of the accused person herein. Killing of an animal capable of being stolen 22. Under Section 278 of the Penal Code it is provided as follows: 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, wether, goat or pig, or the young thereof the offender is liable to imprisonment for a period not exceeding fourteen years. 23. The above sections lists the types of animals capable of being stolen and a goat is one of the animals listed therein. The accused is charged with stealing a goat belonging to the complainant herein PW1. The prosecution produced PEXH-1, a photo of the carcass. PW1 identified her goat by the way she had cut its ear which is visible from the photos shown to the court through PEXH-1. The accused did not dispute if the photo showed a goat and without any evidence to the contrary the court is satisfied that indeed there was an animal which is capable of being stolen and that the animal is a goat Intention to steal the carcass of the said animal 24. Section 268 (1) of the Penal Code describes stealing as follows: 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,

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any property, is said to steal that thing or property. 25. Further, Section 268(2) goes ahead and describes that an intention is shown in the following manner: 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. …... c. …… 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; 26. It is not an easy thing for one to determine the intention of a person unless that person says it. Otherwise, the complainant or a stander-by would have to guess from the actions of the other party. The actions of the person with regards to the issue will also be put into consideration. 27. To help us determine this issue, it would also be important to deal with the issue of identification of the accused herein. In determining if he was the one seen killing the animal, then there would be no doubt as to what his intentions were. 28. On the particular, PW3 testified that he was called by a fellow herdsman namely Abdi who appeared terrified. Abdi told him that the accused had taken his goat and slaughtered it and he had threatened him with a panga. He thus wanted his assistance. They went together back to the scene and found the accused skinning the goat and when the accused saw them approach, the accused took his bag and ran away. The witness was categorical that he saw the accused and that it was not the

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first time. He knew him previously, hence no mistake as to identification. 29. The act of killing the goat and when confronted he runs away is consistent with a behaviour of someone with ill motive and in this case one with the intention of depriving the owner of the goat, her animal permanently. 30. The accused when placed on his defence generally denied the charges and the evidence given. He was not able to explain why the accused and the witnesses herein accuse him of stealing the goat and if they had any ill intention against him. The witnesses he brought to court, were not helpful either as all of them only testified as to the day of his arrest, 17/4/2026, which either way is contrary to the evidence on record which shows that the accused was arrested on 17/5/2026. If indeed the accused was arrested on 17/4/2026, then he was to be brought to court within 24 hours which would be on 20/4/2026 as the 17th was a Friday. I find the testimonies given by the defence witnesses insufficient to rebut the evidence given by the prosecution as to what actually transpired. 31. Further the inconsistencies referred to by the accused are minor inconsistencies which do not go to the root of this case. 32. In Philip Nzaka Watu vs. Republic (2016) CR APP 29 of 2015 the court stated as follows with regards to inconsistency in evidence: However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as

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unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. CONCLUSION 33. I believe from the evidence given herein, the prosecution has proven its case on the required standard of proof, which is beyond reasonable doubt that the accused committed the offence. 34. Thus the accused is convicted of the offence of killing an animal with intent to steal contrary to Section 289 of the Penal Code. JUDGMENT READ, SIGNED AND DELIVERED IN COURT AT HOLA THIS 10TH DAY OF AUGUST, 2026 W.O KOMBWAYO, RM IN THE PRESENCE OF Mr. Kagema for the state Accused- Present CA-Kofa Said/Kofa Alfred

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