Republic v Mbio & another (Criminal Case E628 of 2023) [2026] KEMC 413 (KLR)

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 PLEA OF GUILTY While the matter was pending hearing, the 1 st accused person changed his plea and pleaded guilty. He was convicted and sentenced accordingly. The matter thus proceeded against the 2nd accused person alone. THE EVIDENCE The Prosecution Case The prosecution called at total of four (4) witnesses in a bid to prove their case. PW 1 Samson Oyungu testified that he was a security guard employed by Kenya Railways Corporation. That on 13/7/2023 he was on night shift at Mtito Andei when at about 12:55 am he heard the sound of metals being pulled from a train that had been parked. He proceeded to the scene and saw two people pulling metals from a train wagon. The two people ran away when they saw the witness but the witness managed to apprehend one of them. He took the suspect to Mtito Andei police station. The witness and the suspect returned to the scene in the company of a police officer. They entered the nearby bushes and recovered 49 metal rods. That the suspect mentioned his accomplice then led them to the house of the accomplice. The door to the house was opened and the 2 nd accused person was found therein. He was also arrested. PW 2 Police Constable Fred Ondabu testified that he was from Mtito Andei Railways Police station. The witness stated that he was at the Railways Police station when PW 1 appeared with a suspect. PW 1 reported what had happened. PW 2 placed the suspect in the cells then accompanied PW 1 back to the scene. They managed to recover 40 metal rods. Later, the police took the suspect to where he stayed. That the suspect led them to a certain house where they found another person. The second person was arrested. PW 3 Sergeant Anthony Rono testified that he was the investigating officer in respect of the matter. That on 13/7/2023 he was on night duty at Mtiot Andei Railways police station when he received a report that a suspect had been arrested and was in the police cells. PW 3 stated that while interrogating the suspect, the latter kept on receiving calls and when the investigating officer asked who was calling him, the suspect stated that it was his accomplice in respect of the offence. PW 3 asked another police officer and the OCS to HON. Y.A. SHIKANDA 2

page 2 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 accompany him to arrest the 2nd suspect. That it was the 1st suspect who was identified as the 1st accused person herein, who led them to the house of the other suspect. The 2 nd suspect was arrested. PW 3 stated that they recovered 49 pieces of metal, took photographs then returned them on the train for onward transit. PW 3 identified the 2 nd accused person as the second suspect that was arrested. PW 4 Police Constable Douglas Muroki testified that he was a gazetted forensic crime scene investigator. That on 13/7/2023 he was requested to attend to a scene of crime at Mtito Andei Railway station. The witness proceeded to the scene and took photographs. He produced the photographs in court. The Defence Case Upon being placed on his defence, the 2 nd accused person elected to give a sworn testimony without calling any other witness. The accused person testified that he did not steal the metal rods. That he was arrested from his house and that the police were with the person who had stolen the metal rods. FACTS NOT IN DISPUTE From the evidence of both parties, the following facts are not in dispute: a) The 2nd accused person was arrested from his house on the material night; b) The 2nd accused person was not identified by any of the prosecution witnesses; c) The 2nd accused person was not found in possession of any of the stolen metal rods. MAIN ISSUES FOR DETERMINATION In my opinion, the main issues that fall for the court's determination are as follows: i. Whether the metal rods were stolen as alleged; ii. Whether the 2nd accused person was one of those who stole the metal rods iii. Whether the prosecution has proven its case against the 2 nd accused person to the required standard. HON. Y.A. SHIKANDA 3

page 3 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 ANALYSIS AND DETERMINATION I have carefully considered the evidence on record as well as the law applicable. In my considered view, for the court to convict an accused person, the prosecution must have proved beyond reasonable doubt the following: a) That the offence complained of was indeed committed; and b) That the evidence links the accused person to the offence complained of. It is my further opinion that in order to prove that the offence complained of was indeed committed, the prosecution must establish the key ingredients of the offence. The prosecutor must offer credible and cogent evidence in support of each element of the offence. 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 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; HON. Y.A. SHIKANDA 4

page 4 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 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." Section 279 (c) of the Penal code provides: "If the theft is committed under any of the circumstances following, that is to say— (c) if the thing is stolen from any kind of vessel or vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; the offender is liable to imprisonment for fourteen years.” For the prosecution to prove its case, it must establish, beyond reasonable doubt the following: a) The metal rods existed; b) The metal rods were stolen; c) The metal rods were stolen from a train; d) The metal rods were on transit; e) The 2nd accused person was one of those who stole the metal rods. The prosecution produced in evidence photos showing the metal rods in issue. It is also on record that the 1st accused person pleaded guilty to stealing the metal rods. That is sufficient indication of the existence of the metal rods. The fact that the 1 st accused person pleaded guilty would lend credence to the fact that the metal rods were stolen. The prosecution witnesses testified that the metal rods were stolen from a train. Photos of the train were produced in evidence. Some of the photos show metal rods parked on the train. I have no doubt that the metal rods were stolen from a train. Were the metal rods on transit? No Railway consignment note (waybill) or any documentary evidence was adduced to show that the metal rods were being transported from one point to another. It is not clear where the investigator and by extension the prosecution got the information that the metal rods were being transported from Mombasa to Nairobi. However, since there is evidence to show that the metal rods were loaded in a train wagon, it can safely be inferred that they were on transit. Did the 2 nd accused person steal the metal HON. Y.A. SHIKANDA 5

page 5 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 rods? There is no direct evidence linking the 2 nd accused person to the metal rods. PW 1 who apprehended the 1st accused person could not identify the 2 nd suspect. It was alleged that it was the 1st accused person who led the police to where the 2 nd accused person was found. That the 1st accused person mentioned the 2nd accused person as his accomplice. In other words, the prosecution depends on the allegation that the 2 nd accused person was mentioned by the 1st accused person. It is not clear at what time the 1 st accused person allegedly mentioned the 2 nd accused person. PW 1 stated that the 1 st accused person mentioned his accomplice after they returned to the scene in the company of a police officer. That the 1 st accused person then led them to the house where they found the 2 nd accused person. PW 2 testified that when the 1st accused person was in custody, he called PW 3 where after the 1 st accused person led them to where he stayed. That they found the 2 nd accused person in the house and arrested him. PW 3 testified that while interrogating the 1 st accused person, the latter kept on receiving calls and upon inquiry, the 1 st accused person stated that it was his accomplice who was calling him. That the police were then led to the house where the 2 nd accused person was found. There is also conflicting testimony on how and by whom the metal rods were recovered. PW 1 testified that after he had taken the 1 st accused person to the police station, he returned to the scene in the company of the 1 st accused person and a police officer. That they entered the bushes and found the stolen metal rods. PW 1 did not state who led them to where the recovery was done. PW 2 testified that when the 1 st accused person was placed in the police cells, he accompanied PW 1 back to the scene where the metal rods were recovered. According to PW 2, the recovery was done in the absence of the 1 st accused person as he was in the police cells. From the evidence of both PW 1 and PW 2, recovery of the metal rods was done before the 2nd accused person was arrested. On the other hand, PW 3 testified that after they had arrested the 2 nd accused person, the two suspects led them to where the metal rods were recovered. There is also conflicting evidence on who was present during the recovery. Clearly, the prosecution witnesses did not read from the same script. Be that as it may, the evidence is clear that no witness identified the 2nd accused person at the scene and that the stolen metal rods were not HON. Y.A. SHIKANDA 6

page 6 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 recovered from him. The 2nd accused person was not arrested at the scene of crime nor was there anything found at the scene that belonged to him. Furthermore, there is no independent evidence linking the 2nd accused person to the offence. As already indicated, the prosecution relies on the alleged fact that the 2 nd accused person was mentioned by the 1st accused person. The 1st accused person was not called as a witness for the prosecution in order to give accomplice evidence. Without the testimony of the 1st accused person, the allegation cannot stand. Failure to call the 1 st accused person also denied the 2nd accused person a chance to challenge the evidence as guaranteed by Article 50(2) of the Constitution of Kenya. Such evidence cannot be relied upon. In a nutshell, there is absolutely no evidence linking the 2 nd accused person to the offence. The available evidence is shaky and unreliable. I have considered the 2nd accused person’s defence. I am aware that the 2 nd accused person is not under duty to prove his defence or innocence. The 2 nd accused person was not obliged to adduce evidence to prove his allegations. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt. This standard of proof "beyond reasonable doubt" is grounded on a fundamental societal value determination that it is far worse to convict an innocent man than to let a guilty man go free. A reasonable doubt exists when the court cannot say with moral certainty that a person is guilty or that a particular fact exists. It must be more than an imaginary doubt, and it is often defined judicially as "such a doubt as would cause a reasonable and prudent person, in one of the graver and more important transactions of life, to pause or hesitate before or taking the represented facts as true and relying and acting thereon" (see Clarence Victor, Petitioner 92-8894 v. Nebraska, 511 U.S. 1 (1994); Rex v. Summers, (1952) 36 Cr App R 14; Rex v. Kritz, (1949) 33 Cr App R 169, [1950] 1 KB 82 and R. v. Hepworth, R. v. Feamley, [1955] 2 All E.R. 918). Beyond reasonable doubt is proof that leaves the court firmly convinced that the accused is guilty. Reasonable doubt is a real and substantial uncertainty about guilt which arises from the available evidence or lack of evidence, with respect to some element of the offence charged. It is the belief that one or more of the essential facts did not occur as alleged by the prosecution and consequently there is a real possibility that the accused HON. Y.A. SHIKANDA 7

page 7 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 person is not guilty of the crime. This determination is arrived at when after considering all the evidence, the court cannot state with clear conviction that the charge against the accused is true since an accused may not be found guilty based upon a mere suspicion of guilt. I have no reason to disregard the 2nd accused person’s defence. It is my considered view that investigators, in the discharge of their statutory and constitutional mandate, are under a legal duty to actively interrogate, test, and where appropriate dispel any defence raised by a suspect in the course of criminal investigations. This duty flows from constitutional principles, statutory obligations, and well established judicial authority, and is essential to the integrity of the criminal justice process. Failure to do so not only weakens the prosecution case but may render the investigation partial, incompetent, or oppressive, exposing the resulting prosecution to collapse. Article 50 of the Constitution of Kenya guarantees the right to a fair trial. Embedded within this right is the concept of a fair investigation, which obliges investigators to pursue both inculpatory and exculpatory lines of inquiry. An investigation that merely seeks to confirm guilt, while ignoring or leaving untested a suspect’s explanation, offends constitutional values of fairness, objectivity, and equality before the law. Investigators are therefore constitutionally bound to consider and evaluate any defence put forward at the earliest stage. The role of investigators is not that of advocates for conviction, but of fact-finders. The law requires investigators to establish the truth, gather all relevant evidence, and present a complete and accurate evidential picture to the prosecution. A defence raised by a suspect constitutes relevant material. Leaving it unexplored is a dereliction of investigative duty. Every suspect enjoys the presumption of innocence until proven guilty. While the burden of proof rests on the prosecution, investigators play a foundational role in ensuring that the prosecution can meet that burden. Where a suspect raises a defence, the prosecution must ultimately displace that defence beyond reasonable doubt, in order to sustain a conviction. Investigators are therefore required to test the defence, collect evidence that either supports or negates it, and ensure that it does not remain as an unresolved doubt at trial. Unchallenged defences often become fatal gaps in the prosecution case. Courts have consistently held that uninvestigated defences weaken the HON. Y.A. SHIKANDA 8

page 8 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 prosecution case. Failure to rebut a plausible defence may lead to acquittal regardless of the strength of the remaining evidence. Investigators must not wait for trial to confront a defence; it must be addressed at the investigative stage, where evidence is still available and memories are fresh. Modern criminal justice systems impose a duty of objectivity on investigators. Investigators must not selectively collect evidence, ignore inconvenient explanations, or tailor investigations to fit a preconceived theory. Dispelling a defence does not mean suppressing it; rather, it means testing its credibility, verifying or disproving it through independent evidence, and documenting the outcome. This enhances the credibility of the investigation and shields it from accusations of bias or malice. An investigation that ignores a suspect’s defence is incomplete, constitutionally infirm, and legally vulnerable. Whereas there is sufficient and undisputed evidence to show that the pipes were found where the accused person had taken them, the prosecution has failed to prove that the pipes belonged to the complainants and that they were stolen. As already indicated, I have no reason to disregard the 2 nd accused person’s defence. There is room for reasonable doubt and as a matter of law, the doubt must be resolved in favour of the accused person. What we have on record is mere suspicion. In the case of Joan Chebichii Sawe v Republic [2003] eKLR, the Court of Appeal held thus: “The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 1998 (unreported), Suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence” Suspicion, however grave, cannot form a basis for conviction. The evidence does not irresistibly point to the 2nd accused person’s guilt to the exclusion of all others or at all. The evidence against the 2nd accused person is not cogent. There is room for assumption. The 2 nd accused person may or may not have committed the offence. DISPOSITION HON. Y.A. SHIKANDA 9

page 9 of 10

MAKINDU SPMC CRIMINAL CASE NO E628 OF 2023 Having considered and analysed the evidence on record, I find that the evidence does not meet the threshold of "proof beyond reasonable doubt." Consequently, I make the following orders: 1) The 2nd accused person is found NOT GUILTY of the offence of Stealing goods on transit contrary to section 279(c) of the Penal code; 2) The alternative charge shall suffer the same fate for the same reasons. For avoidance of doubt, the 2nd accused person is found NOT GUILTY of the alternative charge of Handling stolen goods contrary to section 322(1) as read with 322(2) of the Penal Code; 3) As the glove does not fit, I must, as I hereby do, ACQUIT the 2nd accused person of both counts accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 31 ST DAY OF JULY, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. HON. Y.A. SHIKANDA 10

page 10 of 10