Republic v Kituku & another (Criminal Case E902 of 2024) [2026] KEMC 822 (KLR)
The bottom line
#A Kenyan court acquitted two men of motorcycle theft because suspicion and witness gossip are not evidence, though one still faces a separate charge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution has established a prima facie case to warrant the accused persons or either of them to be placed on their defence in respect of the offences
Key legal issues
#Whether a prima facie case of stealing a motor cycle was established against the accused persons
No prima facie case was established on count one; there was no direct evidence linking the accused persons to the theft, and the bartender and alleged eyewitnesses were not called to testify.
The complainant's motor cycle was stolen while parked outside a bar. The bartender merely suspected the accused persons but was not called as a witness, nor were the people who allegedly saw the accused pushing the motor cycle. The prosecution acted on mere suspicion. Presence at the bar, even if proved, would not suffice. Placing the accused on their defence would amount to requiring them to confirm suspicions.
Whether a prima facie case of possession of government stores was established against the 1st accused person
A prima facie case was established against the 1st accused person on the second count and he was placed on his defence.
Police visited the 1st accused person's house and recovered a smoke jacket belonging to the Administration Police Service, a jungle trouser, a green beret and jungle boots belonging to the National Youth Service, suspected of having been stolen or unlawfully obtained. The court found this sufficient to warrant placing him on his defence without elaborating further to avoid prejudicing either party.
Whether a prima facie case of having suspected stolen property under section 323 of the Penal Code was established against the 2nd accused person
No prima facie case was established; the 2nd accused was apprehended by members of the public and not detained by police under section 26 of the Criminal Procedure Code, an essential element of the offence.
Section 323 of the Penal Code requires that the accused have been detained as a result of the exercise of powers conferred by section 26 of the Criminal Procedure Code. The 2nd accused was apprehended by members of the public and taken to the police station; the motor cycle was not impounded. None of the members of the public who apprehended him testified. The offence requires detention by police under section 26, so on that ground alone the charge cannot stand.
The standard and ingredients of a prima facie case at the close of the prosecution case
A prima facie case requires evidence on which a reasonable tribunal could convict if no explanation is offered by the defence; the prosecution must show the offence was committed and that the evidence links the accused to it.
Relying on Ramanlal Trambaklal Bhatt v R and Ronald Nyaga Kiura v Republic, the court held that a prima facie case is one on which a reasonable tribunal, properly directing its mind to law and evidence, could convict if no explanation is offered. The standard at this stage is lower than proof beyond reasonable doubt, but credible evidence must support each element of the crime.
Legal principles established
#- Even at the prima facie stage, there must be credible and acceptable evidence linking the accused person to the offence; mere suspicion or presence at the scene is insufficient.
- The offence under section 323 of the Penal Code is committed only when the accused fails to give an account to the court (not the police) of how he came by the item, or gives an unreasonable or rebutted account, after lawful detention under section 26 of the Criminal Procedure Code.
- A charge under section 323 of the Penal Code cannot stand where the accused was not detained by the police in exercise of the powers under section 26 of the Criminal Procedure Code.
- It is not the duty of the accused person to fill in the gaps or tie up the loose ends in the prosecution case.
Court orders
#- 1.The prosecution has failed to establish a prima facie case against both accused persons in respect of the first count
- 2.The prosecution has established a prima facie case against the 1st accused person in respect of the second count
- 3.The prosecution has failed to establish a prima facie case against the 2nd accused person in respect of the third count
- 4.Both accused persons have NO CASE TO ANSWER in respect of the first count and are ACQUITTED under section 210 of the Criminal Procedure Code
- 5.The 1st accused person has a CASE TO ANSWER in respect of the second count and is PLACED ON DEFENCE
- 6.The 2nd accused person has NO CASE TO ANSWER in respect of the third count and is ACQUITTED under section 210 of the Criminal Procedure Code
- 7.The 2nd accused person shall be released from custody forthwith, unless otherwise lawfully held
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Criminal jurisdiction under the Penal Code (Cap. 63) and the Criminal Procedure Code (Cap. 75), including section 210 thereof
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Both accused persons have NO CASE TO ANSWER in respect of the first count and I proceed to ACQUIT them accordingly under section 210 of the Criminal Procedure Code;
The 1st accused person has a CASE TO ANSWER in respect of the second count and I hereby PLACE HIM ON DEFENCE;
The 2nd accused person has NO CASE TO ANSWER in respect of the third count and I proceed to ACQUIT him accordingly under section 210 of the Criminal Procedure Code;
As a result, the 2nd accused person shall be released from custody forthwith, unless otherwise lawfully held.
Even at the prima facie stage, there must be credible and acceptable evidence linking the accused persons to the offence. A hunch is not sufficient.
It is not the duty of the accused person to fill in the gaps or tie up the loose ends in the prosecution case.
Issues in the judgment
#The charge particulars state the motor cycle was stolen on 13/11/2023 while the evidence and judgment place the theft on 13/11/2024; the court noted the discrepancy.
The judgment is dated 5 August 2026 although the case number and charge dates are of 2024, an apparent dating anomaly.
The disposition describes the 2nd accused as acquitted of 'the third count' though the charge sheet describes only two counts per accused (count two overall for the 2nd accused).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kituku & another (Criminal Case E902 of 2024) [2026] KEMC 822 (KLR)", Case Analysis (2026). Makindu SPMC Criminal Case No. E902 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/822/eng@2026-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.