Republic v Wafula & another

jembe, a KTS radio,a USB ash disc, a mobile phone make Neon Nova and Kshs. 3,000/= in cash all valued at a total of Kshs. 9,100/=. Count 2 - Malicious damage to property contrary to section 339(1) of the Penal Code. 6. The prosecution alleged that this oence was committed by the three accused persons jointly with others not before court on the said date whne they willfully and unlawfully damaged a 15 watts solar panel belonging to Godfrey Wafula. Count 3 - Malicious damage to property contrary to section 339 of the Penal Code. 7. All the accused persons were charged in this count. It was alleged that on same of the incident mentioned in count 1 above, they jointly with others not before court willfully and unlawfully damaged 14 window panes, two motor cycles side mirrors and one helmet belonging to Victor Walela Wafula. Count 4 - Stealing contrary to section 268 (1) (b) of the Penal Code. 8. The prosecution alleged that the three accused persons jointly with others not before court stole one techno Camon X mobile phone, solar charge controller and Kshs. 4,600/= in cash all valued at Kshs. 24,100/= from Victor Walela Wafula. Count 5 - House breaking contrary to section 304 (1) (b) and stealing contrary to section 279 (b) of the Penal Code. 9. It was alleged that accused persons committed this oence with others not before court on the same day of the incident against one Enos Miluni Wafula. They allegedly broke into his house and stole from therein two (2) mobile phones make Techno Spark and Venus Hot Wave and cash amounting to Kshs. 42,000/=. Count 6 – Malicious damage to property contrary to section 339 (1) of the Penal Code. 10. It was alleged that the three accused persons committed this oence on the material day with others not before court when they willfully and unlawfully damaged one Ampex woofer, one Soniteck radio, three thermos asks, two basis, to dozens of water glasses, one water jug, one 50 liter super drum, one mattress, three wooden windows, one wooden door and one sofa set belonging to Enos Miluni Wafula. 11. The alternative count to count 1 involved accused 1 ( now deceased) alone and so, it is marked as abated. 12. All these oences were denied by accused persons. Trial of the Prosecution’s Case 13. The prosecution called Victor Walela Wafula (PW1), Enos Miluni Wafula (PW2), Silvia Wekesa Barasa (PW3) and Maureen Wafula Kasembeli (PW4). 14. In the evidence on record, PW1 stated that he was away at his farm in Chwele when he received information from his wife and also his friend that his house had been broken into by the accused persons. He subsequently made his report to Chwele Police Station whereupon, investigations were commenced. In the course of the investigations, the police visited the scene and assessed the damage to his window panes, motor cycle and helmet. Some of his other properties were taken away during the incident. He identied the properties which was damaged from photographs which were marked as PMF- 1-14. H e explained that accused 1 and 3 were his uncle and brother respectively. He further https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 2

page 2 of 7

indicated that this case was linked to a land dispute he had with accused 1 who wanted a share of his land. 15. On his part, PW2 testied and explained that he witnessed the incident. He indicated that he had gone to visit his immediate neighbor when a large group of people armed with d and sticks came there and started to do the damage Godfrey ‘s house and other properties. He saw them damage the door of the said complainant, his solar panel motor cycle and other properties belonging to both complainants. He said that he saw the three accused persons commit the said damage. He explained that accused 1 was his uncle while accused 3 is his uncle. He said that accused 3 was unknown to him. he conrmed the existence of a land dispute between them and accused persons. He explained that the land in dispute is ancestral land. 16. PW3 is the wife to PW1. She stated that the attackers came to her house armed with pangas and rungus. She explained that amongst them was accused 2 who is her brother in-law. She added that after the attackers asked her where her husband was, they stormed into her house, ransacked it before they proceeded to Godfrey Wafula's house. 17. They also took her money and that of her husband too. They also took her phone and thereafter, they began damaging window panes and other properties belonging to both complainant and demanded that they should vacate the land. Also cut down was their coee bushes. She said that all the accused persons were involved in the incident. She conrmed that two of the accused persons were their relatives but one, that is, accused 2 was unknown to him. 18. PW4 who is a wife to PW2 testied and explained that, she was at her home doing house chores when the attackers who were seven (7) in number came and demanded to know where her husband was. Amongst them she saw accused 2 who is her brother in-law, Douglas Wafula, and accused 3 whose name she did not know. The then entered into her house and started to damage her property that was inside it. 19. Upon sensing danger, she picked her child and went outside. She explained that properties damaged in her house included her wooden windows, a door, thermos ask, cups, and a mattress which they set on re. Besides, they also took her Kshs. 50,000/= and mobile phone make Innix from her bedroom. Defence Case of Accused 2 20. Accused 2 gave sworn evidence and denied the oences facing him. He explained that he is a barber and on 05/09/2020 he was at work, He worked all day and closed at 6:00 pm. He returned home thereafter. While there, she was visited by accused 1’s wife who then informed him that he had been arrested together with his worker, accused 3. He then left home and visited Chwele Police station to nd out why the two had been arrested. Upon reaching there, the police began to beat him and afterwards, placed him in custody in their cells without telling him the reason for his arrest. He only learned of the same when he reached court during plea taking. He explained that he know nothing about the charges which were read out to him by the court. He specically denied the allegations that he broke into the houses of the three complainants, damaged their windows and stole their properties including money and phones. 21. He added that he knew nothing about the photographs that were identied herein or the items that were shown therein. He contended that 5th and 6th witnesses who were listed in the charge sheet were not called by the prosecution. That the investigating ocer did not testify also despite being summoned by the court. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 3

page 3 of 7

Issues for Determination 22. The issues for determination in this case are; 1. Whether the acts complained of house breaking, stealing and malicious damage set out in counts 1, 2, 3, 4, 5 and 6 were committed against the respective complainants specied therein as alleged. If so; 2. Whether accused 2 and 3 were the perpetrators. 3. Whether this case was proved beyond reasonable doubt on counts 1, 2, 3, 4, 5 and 6 as to warrant conviction of accused 2 and 3 as charged. Analysis & Determination 23. The prosecution witnesses gave evidence implicating both accused 2 and 3 in commission of all the oences charged herein. However, accused 2 who is the only one still participating in this trial, has denied that he was involved. As for accused 3, he absconded before being placed on his defence case and so, he has no defence to the charges. 24. All the same, the prosecution was under a duty to prove their case against both notwithstanding a luck of defence on the part of accused 3 in his absentia. 25. It is trite that in criminal cases, the standard of proof to be met by the prosecution so as to sustain a conviction against the accused person is beyond reasonable doubt - See Whoolmington v DPP (1935) AC 462 cited with approval in the case of State v Obura (Criminal Case E013 of 2025) [2026] KEHC 1446 (KLR) (13 February 2026) (Ruling). 26. The oence of house breaking was preferred under section 304 of the Penal code. This section provides that; 1. 2. 27. 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. If the oence is committed in the night, it is termed burglary, and the oender is liable to imprisonment for ten years.” The denition of house breaking is found in section 303 of the Penal Code. Its denition is rendered under it as follows; (1) A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting or any other means whatever any door, window, shutter, cellar ap or other thing intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is deemed to break the building. (2) A person is deemed to enter a building as soon as any part of his body or any part of any instrument used by him is within the building. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 4

page 4 of 7

(3) 28. A person who obtains entrance into a building by means of any threat or artice used for that purpose, or by collusion with any person in the building, or who enters any aperture of the building left open for any purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building. The ingredients owing from the above are; a. That the person must break and enter into a building, tent or vessel, b. The building, tent or vessel must be one that is used as a human dwelling and; 29. The entry therein must be with the intention of committing a felony therein- see Anthony Kilonzo Mutuku v Republic [2019] KEHC 6356 (KLR). 30. As pertains the oence of stealing, the sections to charge accused persons are section 268 and 269 (1) (b) and 275 of the Penal Code. Section 268 sets out the general denition of stealing while section 275 and 279 provides punishments for the oence of stealing depending on the manner of the commission of the same. 31. Ingredients of this oence ow from its denition under section 268(1) of the Penal Code. The section stipulates thus; (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 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; 32. The ingredients thereof are, unlawful taking of another’s property with the intention of depriving them of the same permanently without any claim of right. - see Republic v Juma (Criminal Case E116 of 2026) [2026] KEMC 695 (KLR) (15 April 2026) (Judgment). Section 264 has a related denitionsee David Mwalati Kaitoli v Republic [2016] KEHC 2939 (KLR). These two cases address the oence of stealing stock, but apart from the nature of thing stolen, the main ingredients are the same. 33. The oence of malicious damage to property was framed under section 239(1) of the Penal Code. Therefore, the court is also minded to consider the ingredients of malicious damage to property which applies under the said section. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 5

page 5 of 7

34. Section 339(1) of the Penal Code provides that: “ Any person who wilfully and unlawfully destroys or damages any property shall be guilty of an oence.” 35. Therefore, in order for the prosecution to prove this oence, they were required to demonstrate that: (1) The property belonged to another person; (2) The property was damaged or destroyed; and (3) The damage was wilful and unlawful - see Wangui v Republic (Criminal Appeal E079 of 2024) [2026] KEHC 12759 (KLR) (22 July 2026) (Judgment). 36. Turning back to the evidence, the prosecution witnesses gave evidence about the incident and what transpired. They explained that, a group of people comprising seven (7) people came to the home of the complainants’ and started to damage their properties. While inside, they stole from therein several items as was specied herein. These included mainly phones and various sums of money belonging to them. But those allegations were denied by accused 2. 37. On the above matters, the court notes the following; a. That the rst complainant namely Godfrey Wafula never testied. Although those who testied gave evidence that his house was also aected, his absence from trial rendered his case unsubstantiated and unsustainable. This means that, count 1 and 2 must collapse for that reason. b. Several photographs which were to be used by the prosecution to prove the damage committed against the complainants on counts 2, 3 and 4 were merely marked but eventually not produced. Therefore, this court is unable to put a rm nding on the matter more so, being that it never saw the same when they were marked. These were seen by my predecessor before I later took over the matter under section 200(3) of the Criminal Procedure Code. c. The court notes that the issue of house-breaking in general was not properly brought out. There was nothing to show that the houses were locked or closed when the oence occurred and what was described about a door being broken amounted more with malicious damage as opposed to house breaking per se. 38. From the thread of evidence on record, the attackers came and found people at home going about their own businesses before they created the chaos that ensued thereafter. Therefore, the court nds that there was no breaking of the houses in issue as contemplated under section 303 and 304 of the Penal Code. 39. In view of the above deciencies in the prosecution’s case, this court would conclude that this case was not proved beyond reasonable doubt. Therefore, accused 2 is granted the benet of the doubt in relation to his alibi with the consequence that, he has to be acquitted on all charges. 40. That also means that even in his absentia, the case against accused 3 was equally not proved. This calls for his acquittal on all counts too. 41. In the upshot, this court returns a verdict of not guilty in favour of both accused 2 and 3 on counts 1, 2, 3, 4, 5 and 6 and acquit them of the same under section 215 of Criminal Procedure Code forthwith. DATED & DELIVERED IN OPEN COURT THIS 2ND DAY OF SEPTEMBER 2026 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 6

page 6 of 7

R.B.N. MALOBA (MS) SENIOR PRINCIPAL MAGISTRATE In the presence of; Prosecutor - Ms. Chepkiyeng. C/Assistant - Mr. Aggrey. Interpretation - English-Kiswahili Accused in person. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/963/eng@2026-09-02 7

page 7 of 7