Republic v Lucas Wakhungu

travelling from Mwangaza but he did not know his chief. He decided to call the village elder to confirm if the accused person was a son to Omanyo as he had alleged and it was established that he was not. He further interrogated him on whether he had stolen the cow a fact which he denied. He asked for his identification card which the accused person produced one which did not belong to him. He saw an officer passing by and the suspect was taken to the police station. The accused person later admitted to stealing the cow and the owner of the cow was traced. 7. On cross-examination he testified that he got to know the accused person on the date of the incident. That he knew the accused person as a thief who had stolen from someone else. That he was in the stock business a fact which could be confirmed by his chairman. That the cow which was photographed is proof that it was stolen. 8. In re-examination he testified that the cow which photograph had been presented in court is the one he found the accused person with and in their line of business they referred to such cows as being red in color. 9. PW2 was one Charles Otonyo who testified that on 29 th April 2025 he went to check his shed and found one of his cows missing. That what was missing was a brown cow and he went to inform his Assistant Chief who disseminated the information to the stock market. He was later informed that the cow had been recovered at Amukura and taken to the police station where he identified it. He was able to identify the accused person who is from his village. That they had a dispute with the family of the accused person and he did not instruct him to sell his cow. That the cow was photographed and he took it back home. 10. On cross-examination he told the court that he knew the cow was his and he reported it to the Assistant Chief as stolen. That the Assistant Chief called him to identify the cow at Amukura Police Station. That it was a brown cow but in the community it is commonly referred to as red. 11. In re-examination he testified that the photograph in court showed his cow. 12. PW3 was the investigating officer one PC Samwel Mauti who testified that on 29th April 2025 being a market day he was on his way to the shop when he was informed that there was someone who had a cow which was suspected to be stolen. That it was suspicious because of Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 2

page 2 of 7

the amount that the suspect was selling it for. That for safety reasons he took the suspect to the police station and interrogated him. The suspect informed him that the cow belonged to his brother and who had given it to him to sell. He called the Assistant Chief at Bumula and the OCS Bumula Police Station and was informed that there was a report by one Charles Otonyo that his cow had been stolen. He placed him in the sell. The complainant came and identified his cow which was photographed and released to him. That he wanted to sell the cow at Kshs. 26,000/= yet it was worth between Kshs. 36,000/= to Kshs. 40,000/=. He produced photographs of the cow as PEXH 1 and 2. 13. On cross-examination he testified that he had been an officer for 20 years. That in the market there were many cows. That there was no requirement to photograph the accused person with the cow. That it was equally not a must that a photograph be stamped and have a date and that the evidence in court was true. 14. In re-examination he testified that he took photographs of the cow on 29th when he arrested the accused person and he had no ill motive to arrest the accused person. 15. This marked close of the prosecution’s case and pursuant to a ruling delivered on 25th June 2026, the accused person was placed on his defense under Section 211 of the Criminal Procedure Code. He elected to give sworn evidence without calling any witnesses. 16. He testified that on 29th April 2025 he was on his way to the market and he was going to buy some items to resell. That before getting to the market he met two men who told him that there was a car which had been stuck and they requested him to assist in pushing it. That on arrival he was taken into police custody and he was not informed of the reason for his arrest. He was assaulted, referred to as a thief and later arraigned in court. 17. On cross-examination he testified that he comes from Bumula and he was going to Amukura market to buy items to resell. That he ordinarily buys groundnuts to resell. That at the police station there was no cow. That he had not called any of his family members to testify about his business. Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 3

page 3 of 7

18. This marked close of the defense case and the court reserved the matter for judgment on 10th September 2026 when the judgment was not ready and deferred to 1st October 2026. Analysis and Determination 19. I have carefully considered the evidence tendered by the prosecution and the defence advanced by the accused person. 20. The first count charges the accused with stealing stock namely a cow contrary to Section 278 of the Penal Code, while the alternative count charges him with handling stolen property contrary to Section 322(1) (2) of the penal code. 21. The prosecution evidence establishes that PW2 was the owner of the cow in question. He testified that he went to his shed and discovered that the cow was missing. He thereafter reported the loss to the area Assistant Chief. He was subsequently informed to proceed to Amukura, where he found the cow. PW2 identified the accused as a person whom he knew from his village. He also explained the description of the cow, stating that although the animal was described in English as brown, in the local parlance it was referred to as red. 22. PW1, on the other hand, testified that he was a stock dealer and that he encountered the accused at the market offering a brown cow for sale at Kshs. 26,000/=. PW1 found the price suspicious because, based on his experience in the trade, he considered the animal to be worth substantially more. He therefore made inquiries concerning the cow. It was during this process that a police officer happened to be passing by and the accused was arrested. The subsequent investigations established that a report of a missing cow had already been made in the area from which the accused hailed. 23. The investigating officer substantially corroborated this account. 24. I have considered the challenge by the defence regarding PW1's assertion that he was a stock dealer. I find that the absence of documentary evidence proving that status does not, by itself, render his testimony incapable of belief. His evidence concerning the value of the cow was principally relevant to the circumstances that aroused his suspicion. More importantly, the prosecution case does not rest solely upon his assessment of value. It is supported by the evidence of the Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 4

page 4 of 7

complainant, the prior report of the missing cow and the subsequent recovery of the animal. 25. I have also considered the apparent discrepancy concerning the colour of the cow. PW1 described it as brown while PW2 explained that in the local language the same colour was ordinarily referred to as red. I do not consider this discrepancy material. The evidence concerns the same animal, and the discrepancy does not create a reasonable doubt as to its identity. 26. The photographs of the cow were challenged on the basis that they were neither dated nor stamped. I have taken this objection into account. The evidential value of the photographs must, however, be considered separately from the oral evidence identifying the cow. The ownership and identity of the animal were established principally through the testimony of PW2, who identified it as his missing cow. The absence of a date stamp does not, in the circumstances of this case, render the entire prosecution case incapable of belief. 27. The prosecution was required to prove, beyond reasonable doubt, that the accused fraudulently and without claim of right took and carried away the cow belonging to PW2. 28. Although the evidence establishes that the cow was stolen, there is no direct evidence placing the accused at the complainant's shed at the time the cow disappeared, nor is there direct evidence demonstrating that it was the accused who physically took the animal from the complainant's possession. 29. The prosecution seeks to connect the accused to the stealing principally through his subsequent possession of the cow. The doctrine of recent possession may, in appropriate circumstances, permit the court to draw an inference that the person found in possession of recently stolen property was either the thief or a guilty receiver. However, the inference must arise from proved facts, including proof that the property was stolen, that it was found in the accused's possession, that it was positively identified as the stolen property and that the possession was sufficiently recent. 30. In the present case, although there is evidence connecting the accused to the cow, I am not sufficiently persuaded that the evidence establishes beyond reasonable doubt that it was the accused himself who stole the cow. The prosecution has not placed him at the scene of the stealing or otherwise demonstrated the actual taking. Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 5

page 5 of 7

31. I therefore find that the charge of stealing has not been proved beyond reasonable doubt. The accused is accordingly acquitted of the main count of stealing. 32. On the alternative count of Handling stolen goods, the prosecution evidence establishes that the cow had been stolen from PW2 and that a report of its disappearance had already been made before the accused was apprehended. The accused was subsequently found in possession of the animal at Amukura, where he was attempting to sell it for Kshs. 26,000/=. PW1's evidence was that he became suspicious because the price was substantially below what he understood to be the market value of the cow. 33. The accused gave no satisfactory explanation as to how he came into possession of the cow. In his defence, he stated that he had gone to Amukura to purchase groundnuts for resale and that he was called upon to assist in pushing a vehicle which had stalled. According to him, he only subsequently discovered that he had been taken to a police station and placed in custody. 34. That explanation does not account for his possession of the cow which PW1 had encountered him offering for sale. It is also inconsistent with the prosecution evidence concerning the circumstances of his arrest. In any event, these issues only arose at the stage of Defense hearing and were not tested during the hearing of the prosecution case. It is thus my view that the defense is an afterthought. 35. The prosecution has therefore established that the accused had possession of property which was stolen and that he was dealing with the property by offering it for sale. The circumstances in which he possessed the cow, particularly the significantly low selling price and his failure to give a credible account of how he came into possession of it, support the inference that he dishonestly received or retained the property knowing or having reason to believe it to be stolen property. 36. I accordingly find that the prosecution has proved the alternative count of handling stolen property contrary to section 322 (1)(2) beyond reasonable doubt and the accused person is convicted under section 215 of the Criminal Procedure Code. Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 6

page 6 of 7

JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA SENIOR PRINCIPAL MAGISTRATES COURT THIS 1 ST DAY OF OCTOBER, 2026. In the Presence of Lucas Wakhungu, the accused person present in person Mr. T. Rotich Prosecution Counsel Court Assistant: Brenda Ochieng’ A.Z. OGANGE RESIDENT MAGISTRATE 01.10.2026 Judgment Criminal Case No. E265 of 2025 Hon. A.Z Ogange-R.M pg. 7

page 7 of 7