Republic v Jillo

bought one t-shirt at a cost of KShs.150 from the accused herein on 14/3/2026. At the time he was with a coworker, with whom they were loading sand namely Mohammed Said. He was later found with the t-shirt by PW1 and then arrested on 27/3/2026. It was while at the station that he explained how he got the said tshirt and then helped the police and the complainant to trace the accused through the friend who knew him. 5. PW3 was the complainant who testified how his wife called him on 27/3/2026 when she saw PW2 with his t-shirt, when he came and took him to the station. He confirmed the t-shirt was his by the white strips on both arms and the neck. They then went to Hola Police station, having not reported the issue earlier, the police booked the same on the OB. PW2 then helped them trace his friend who knew the seller of the t-shirt who in turn helped them to trace the accused herein and brought him to the police station. He was able to identify the T-shirt PW2 was found with as PMFI-1 6. PW4 was PC Willington Maingi who was the investigation Officer in this case. He basically reiterated the testimonies of the witnesses herein and explained how the accused was arrested and charged. The witness also produced the said T-shirt as PEXH-1. 7. That marked the end of the Prosecution case. Defence case 8. The accused was placed on his defence and he chose to give unsworn testimony. The Accused stated that he comes from Mji ya Wazee within the Mandangwena area of Tana River County, where he works as a welder and a carpenter. He explained that in addition to his artisan trade, he rears poultry at his home, which includes both hens and ducks. 9. The Accused stated that his conflict with the complainant, Omar Garise, arose from a mutual agreement involving these animals.

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He testified that the complainant approached him requesting two male ducks, which the Accused agreed to lend on the condition that they would be returned once the complainant's own female ducks had laid eggs. Further, the Accused explained that the complainant kept the ducks for over two months without returning them, which eventually forced him to go look for the complainant at his residence. Upon arrival, the Accused stated that he met the complainant's mother, who directed him to Timboni where the complainant was packing sand. 10. The Accused stated in his testimony before court that he went to Timboni and confronted the complainant, who admitted that the ducks had disappeared but promised to pay for them. Further, he explained that more than a month passed without the complainant making any effort to settle the debt or communicate with him. Consequently, the Accused stated that he decided to report the breached agreement to the complainant's mother, who promised to pass the information along to her son. 11. The Accused stated that he later encountered the complainant at a local resting place, and because he was angry about the unfulfilled bargain, he grabbed the complainant's mobile phone. He explained that he told the complainant that the phone would only be returned upon full repayment for the lost ducks. The Accused stated that this interaction led to a public quarrel witnessed by several bystanders. He further explained that a village elder stepped in to calm the situation down and took custody of the phone. The Accused testified that after both parties explained themselves, the old man paid him KShs. 1,500, which was half of the KShs. 3,000 total value for the two ducks. The Accused stated in his testimony before court that the elder retained the phone as security until the complainant cleared the

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remaining balance, and he explained that this specific incident is what triggered the complainant's grudge against him. 12. Regarding the events of 27 th March 2026, the Accused stated that he closed his workshop, went to Timboni to shower, and then proceeded to the Hola Barracks football field to watch a match. He explained that while he was standing in the crowd, the complainant's brother and uncle approached him and called him aside. The Accused stated in his testimony before court that they told him there was an urgent problem and that his presence was required. Further, he explained that they brought a motorcycle, which he boarded in good faith, but the motorcycle drove straight to the police station. 13. The Accused stated that upon reaching the station, the complainant emerged and falsely accused him of stealing a tshirt, leading to the Accused being placed in the police cells. He further explained that the next day, the complainant was set free while he remained detained in custody. The Accused stated in his testimony before court that he did not do any of the things he is accused of, and further, he explained that the theft allegations are entirely fabricated and malicious, stemming solely from the pre-existing grudge over the unpaid ducks and the confiscated mobile phone. ISSUES FOR DETERMINATION AND ANALYSIS 14. Section 268 of the Penal code provides in part 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

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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." 15. Section 275 of the Penal code provides: "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." 16. A reading of the above provisions reveal that for the court to convict an accused person with such an offence, the following issues must be proven: i. An item was stolen and the item is capable of being stolen

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ii. There was intention to deprive the owner of the item the thing of it iii. The acts were done by the accused person herein 17. Section 268(1) provides: “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 anything capable of being stolen, is said to steal that thing.” 18. The court of appeal in Mathenge vs. Republic (Criminal Appeal E044 of 2024) [2026] KECA 1643 (KLR) stated as follows with regards to Section 268(1) of the Penal Code: The statutory text makes two things immediately clear. First, stealing is not established merely by showing that property moved from one account, place, or person to another. Second, and more importantly for present purposes, theft requires proof of a mental element: the taking or conversion must be fraudulent. It is that fraudulent appropriation, the animus furandi, rather than mere irregular handling of property, that transforms suspicious conduct into criminal theft 19. There is a clear evidence from the prosecution that the clothes belonging to the complainant were washed and hanged to dry but later found missing. This incident was not reported and as per the prosecution, the complainant was looking for the clothes on his own. (Un)luckily for him he got someone with one of the lost items, this person was PW2. 20. It has always to be remembered that the prosecution bears the burden of proof and that proof has to be beyond reasonable doubt. Such that any slight doubt in the case of the prosecution and the accused is to be set free. However, in the case of Miller

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vs. Minister of Pensions [1947] 2 ALL ER 372 the court held as follows: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof of beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed. 21. The prosecution identified the stolen items as 8 shirts though only one of the stolen items was was recovered and one of the said items was a green t-shirt with white strips on the neck. This was PEXH-1. When PW2 was found with the said exhibit he indicated and provided the person who sold it to him and that was the accused person herein. I find that the said t-shirt is an item capable of being stolen and such that ingredient is proven. 22. On to the next part whether there was any fraudulent act on the part of the thief. I find it that the act of selling the t-shirt to a third party was meant to totally deny the original owner the ownership or usage of the shirt. 23. However, there is an issue of identification of the accused person herein. PW2 stated that the accused herein sold to him the said item however, he did not know him and had to rely on a friend to remind him or tell him who the seller was. The courts have always warned on issues of identification and the dangers associated with it. It is clear from the evidence provided by the state that none of the three other witnesses knew the accused person save for the PW2 who purchased the t-shirt from him. 24. PW2 was categorical that he did not know the accused person herein and it was the first time he was meeting him. It was his friend Mohammed Said who identified the accused and helped

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have him arrested. While weighing the testimony of the accused and the evidence of identification as presented by the state, I am of the opinion that the issue of identification of the accused is really important in this case. This is because of the testimony by the accused person that he had a pre-existing grudge with the accused PW2 who was actually found with the PEXH-1. 25. In R vs Turnbull [1976] 3 ALL ER 549 stated as follows in respect to identification of an assailant; …the judge should direct the jury to examine closely the circumstances in which identification by each witness came to be made. How long did the witness have the accused under observation" At what distance" In what light" Was the observation impeded in any way, as for example by passing traffic or a press of people" Had the witness ever seen the accused before" How often" If only occasionally, had he any special reason for remembering the accused" How long elapsed (sic) between the original observation and the subsequent identification to the police" Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance. 26. Considering that PW2 did not know the accused person herein and that he had never met him previously, then it is very important that he would help the investigators to identify the accused person before turning him into a state witness. One would ask, how did the PW2 identify the accused to the police when he was brought at the station, did he give any description? From the evidence before court, the PW2 never gave any description of the accused. Further, the Prosecution for reasons best known to them, failed to call the said

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Mohammed to come and corroborate the evidence of PW2 that indeed it was the accused person herein who sold the t-shirt to the accused person. 27. The accused person is the favorite child of the law who has a whole article in the constitution dedicated to them under Article 50. This court while weighing the evidence from the two sides though, the accused gave unsworn testimony, I am satisfied that there is no enough evidence to convict the accused herein. The court as at this point is not sure if indeed the man who sold the green t-shirt to the PW2 was the accused herein. Only Mohammed would have confirmed that it was this accused person and that the same accused person is the one that he helped the police to arrest. The accused denied the offence and he alleged a plan by PW2 to fix him due to some issues which they have from back home. It was therefore important for the prosecution to provide an independent witness who would be able to identify the accused person and corroborate the evidence of PW2 or in the alternative conduct an Identification Parade so as to eliminate any doubts as to who the PW2 was referring to. 28. Justice Mativo in Elizabeth Waithiegeni Gatimu vs. Republic [2015] KEHC 1136 (KLR) stated as follows on the issue of evidence and role of the prosecution To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…

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29. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. 30. Therefore, the accused is acquitted of the charges main count of stealing contrary to Section 268 as read with Section 275 of the Penal Code pursuant to Section 215 of the Criminal Procedure Code. Alternative charge of handling stolen property 31. The accused was charged with the alternative charge of handling stolen property pursuant to Section 322(1). The evidence presented before court has not proved that the accused herein was in possession of the said clothes. Bearing in mind the issue of identity and the failure to bring a corroborating evidence, the accused is further acquitted of the alternative charge pursuant to Section 215 of the Criminal Procedure Code. CONCLUSION 32. The prosecution having failed to prove their case beyond reasonable doubt on the main count and the alternative charge, the accused herein is acquitted of both the main charge and the alternative charge pursuant to Section 215 of the Criminal Procedure Code.The accused is to be set free unless otherwise lawfully held. 33. Right of appeal 14 days. JUDGMENT READ, SIGNED AND DELIVERED IN COURT AT HOLA THIS 24th DAY OF AUGUST, 2026 W.O KOMBWAYO, RM Delivered in the presence of: Mr. Kagema for the State Accused- Present

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CA- Omar

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