Republic v Wanyonyi & another (Criminal Case E1190 of 2025) [2026] KEMC 724 (KLR)

and did steal from there one TV set make LG, one 13 Kg gas cylinder green, one torch, a charger, one hoofer (sic) make Sayona with its speakers all valued at Kshs. 40,000/= the property of Joanna Murugi Oyamo. The Accused Persons also face an alternative charge of handling stolen property contrary to section 322 (1)(2) of the Penal Code whose particulars are: On the 22nd day September 2025 at around 0830hrs, at Makutano area in Bungoma South Sub – County within Bungoma County, otherwise than in the cause of stealing dishonestly retained one TV set make LG, one 13 Kg gas cylinder green, one hoofer (sic) make Sayona with its speakers knowing or having reason to believe them to be stolen property The Accused Persons denied all the charges facing them, therefore, this matter was set down for hearing for the prosecution to prove their case against the Accused Persons beyond reasonable doubt. EVIDENCE Prosecution witnesses testified as follows: PW1 Joana Murugi Oyamo testified that she woke up in the morning of 22nd September 2025 only to find her house door open. She also noticed that her verandah grills had been cut and kitchen window panes broken. Her LG

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tv, a 13 Kg gas cylinder, one torch, woofer, and one charger were also missing from her house. She informed her husband and the area mukasa/village elder (PW2) about the incident. She thereafter reported the incident to the police for necessary action. She was later informed that some of her stolen items had been recovered at mzee Changalwa’s home. She proceeded to that home where she identified her stolen sony television, 13kg gas cyliner, and a sayona woofer. She found the Accused Persons with the recovered stolen items. She added that the Accused Persons damaged her house to gain access. On cross-examination, she conceded that she did not see whoever broke into her house. She stated that her stolen items were recovered from the Accused Person’s house. She reiterated that her stolen tv was a SONY tv, and that if the charge sheet read a different television make then the same was an error. PW2 Martin Sangura Muyekho is the village elder Makutano. His testimony was that on 22nd September 2025 at around 0630hrs, he received a call from PW1 who told him that her house had been broken into. He visited the scene when he noted that PW1’s house’s window grills had been cut. He advised PW1 to report the matter to the police. He added that he saw blood at the scene. He suspected that whoever cut the window grilles had been cut. Members of the public joined him at the scene

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and a search for the stolen items ensued. They followed the blood drops trail to the Accused Person’s rental house where they recovered PW1’s SONY tv, 13 Kg green kentongas cylinder, and a Sayona woofer. Police officers responded and re-arrested the Accused Persons. On cross-examination, he stated that he knew that the house where recoveries had been made was rented by the 1 st Accused Person given that he was the area village elder. He added that the 2 nd Accused had a cut injury at the time of his arrest. PW3 Boaz Mulinge Changalwa he is a son of the 1 st Accused Person’s landlord. He stated that on the morning of 22nd September 2025, at around 0900hrs, while at their home, he saw a crowd of people led by PW2 heading in the direction behind their house. PW2 told him that members of the public were following blood droplets trail from a house that had been broken into. He joined the members of the public. The blood droplets trail led them to the 1 st Accused Person’s house. They found the 1st Accused Person outside the house. They also found the 2 nd Accused Person in that house with a bleeding index finger. A search in the 1st Accused Person’s house led to the recovery of PW1’s stolen 42” SONY tv, sayona woofer, and a 13 Kg green kenton gas cylinder. On cross-examination he reiterated that the tv recovered from the Accused Persons was a SONY tv, and that the photos on record were taken by PW2.

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PW4 No. 57838 CPL Innocent Ijakaa is a police officer attached to Bungoma Police Station. He investigated this case. He produced the photos (Pexh. 1 (a) & (b)) showing PW1’s stolen property recovered from the Accused Persons’ house. He also produced a certificate of print (Pexh.2) for the photos. On cross-examination, he stated that he did not take the scene photos since there was no need to do so because PW1 gave evidence on the burglary. He added that PW1’s stolen tv was a 32” LG tv. He conceded that the photo he had produced was not clear on the make of the recovered television. The Accused Person’s Case DW1 Paul Wanyonyi gave unsworn testimony. He denied committing the offences herein. He did not call witnesses. His testimony was that on 22 nd September 2025 at around 0730hrs, while going to his house to take tea, he met six people, including PW2, who asked him if he had seen a motorbike carrying some items. He answered in the negative, only for one of those people to hit him on the head. He added that after the attack, he lost consciousness and was rushed to the hospital for treatment. He produced treatment notes from Bungoma County Referral Hospital. He also stated that after regaining consciousness, he was arrested and arraigned for the offences herein. DW2 Moses Kituyi gave sworn testimony. He did not call witnesses. He also denied committing the offences herein.

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He stated that on 22nd September 2025, while coming back from escorting his son to Makutano Primary School, he met PW2 and 3 other people. One of those people reportedly hit him on the head. Those people also allegedly took his mobile phone and Kshs. 300/=. He added that PW2 called police officers from Kibabii who took him to Bungoma County Refferral Hospital for treatment. He was later on taken to Bungoma Police Station where he was accused of engaging in crime. He was thereafter arraigned for the offences herein. ANALYSIS AND DETERMINATION This court has given due regard to the charges preferred, the evidence adduced by the prosecution witnesses, and the accused person’s defence. The only issue for determination is whether the prosecution has proved its case against the Accused Persons beyond reasonable doubt. The main charge facing the Accused Person is the offence of burglary contrary to section 304 (2) and stealing contrary to section 279 (b) of the Penal Code. Questions sometimes abound whether the charge as framed is duplex. It is imperative to settle this question before determining whether the prosecution proved their case against the Accused Persons beyond reasonable doubt. The question above was settled by the Court of Appeal in Njoka vs Republic [2001] KLR 175 that:

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“Section 304(2) of the Penal Code, cap. 63, was the main section under which the appellant was charged. The section does however create two offences rather than one offence. The first offence it creates is burglary and the second offence it creates is stealing from the house. Both offences, however, are usually committed in the course of one transaction and they carry no mens rea. They are, also, usually laid as one offence in one count. The charge is then said to carry two limbs namely one for burglary and one for stealing from the house”. Similarly, the Court of Appeal in Reuben Nyakango Mose & Another vs Republic KSM CA Criminal 606 of 2010 [2013] eKLR observed that: “It will in any event be seen that the framing of the charge of burglary in the Criminal Procedure Code envisages that another offence may be committed in the course of burglary. That is why the relevant form is couched to include burglary and stealing in the same charge. The authorities we have visited and all relevant law envisage that because a thief who breaks into a dwelling house or a vessel will have had ulterior motives when he formed the intention to break into the house or vessel then what follows – this will ordinary but not necessarily be stealing – should be included in the burglary charge. There cannot therefore be duplicity when the offence of burglary and stealing are combined in the same charge”.

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The authorities above lead to one inevitable finding that the charge facing the Accused Persons as framed is properly before this court. The offence of burglary is set out under section 304(2) of the Penal Code as follows: 304. Housebreaking and burglary (1) 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. (2) If the offence is committed in the night, it is termed burglary, and the offender is liable to imprisonment for ten years. A reading of the provisions of the law above shows that for the prosecution to prove the offence of burglary, the prosecution must prove beyond reasonable doubt that the Accused Persons broke into a building, tent, or vessel used as a dwelling house, and that the breaking into must have been done at night.

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PW1 testified that when she woke up in the morning of 22 nd September 2025, she found her dwelling house’s verandah grills, and kitchen window panes broken. PW2 visited the scene and confirmed as much. It is not lost to this court that photos evidencing the breaking in into PW1’s house were not placed before this court. In the absence of such photos, one may be tempted to argue that there was no evidence on record to prove that that PW1’s house was broken into. This argument is usually fueled by a belief held by most people that breaking into a house is only deemed to have occurred if a person breaks a house’s door, window, or any other part of that house to gain access to that house. Breaking is defined in section 303 of the Penal Code as follows: “303. Definition of breaking and entering (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 flap 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.

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(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." A further meaning of breaking can be gleaned from Maundu Wambua vs. Republic [2006] eKLR, where Makhandia, J (as he then was) expressed himself as follows: “With respect I do not buy the appellant’s interpretation of what amounts to “breaking”. The breaking must not necessarily result into some sought of damage. What is critical is gaining access into a store against the wish of the owner and or without his permission. In the instant case, the appellant gained entry into the store using a master key. By using the master key to access the store which was not his and without having sought or obtained the permission of the owner (PW1) to my mind amounts to breaking in. Simply put the appellant by his own machinations gained unauthorized access to the store. That act amounted to “breaking in.” In my view, therefore, the prosecution led sufficient evidence to show that the appellant broke into the store.”(Emphasis added) Going by the definitions above, breaking is complete where one enters another person’s house without permission. Damage to any part of a house for access to that house need not to be proved for breaking into a house to be said to have taken place. Section 4 of the Penal Code defines a dwelling house to include any building or structure or part of a building or structure which is for the time being kept by the owner or occupier for the residence therein of himself, his family or his servants or any of them, and it is immaterial that it is from time to time

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uninhabited; a building or structure adjacent to or occupied with a dwellinghouse is deemed to be part of the dwelling-house if there is a communication between such building or structure and the dwelling-house, either immediate or by means of a covered and enclosed passage leading from the one to the other, but not otherwise. There is no dispute that PW1 stays in the house, which was reportedly broken into. That house is a dwelling house within the meaning of section 4 of the Penal Code. PW1’s testimony was that she woke up in the morning only to find her SONY tv, Sayona woofer, and a 13kg green kentogas gas cylinder missing from her house. There is no indication that PW1 permitted anyone to enter her house and pick the said property. It thus follows that the property taken from PW1’s house was taken by people who broke into her house at night. The foregoing inclines this court to find that the prosecution proved beyond reasonable doubt that PW1’s dwelling house was broken into at night. The second limb of the charge facing the Accused Persons is set out under section 279 (b) of the Penal Code provides as follows in this regard: “279. Stealing from the person; stealing goods in transit, etc. If the theft is committed under any of the circumstances following, that is to say

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(a)… (b) if the thing is stolen in a dwelling-house, and its value exceeds one hundred shillings, or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house; …the offender is liable to imprisonment for fourteen years.” This court has already made a finding that the house broken into in this case is a dwelling house. the prosecution witnesses testiSection 268 of the Penal Code defines “stealing”” in the following terms: (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;

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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; 20. The above notwithstanding, it is clear that the various elements in a) to d) above are disjunctive hence satisfaction of any element combined with e) will lead to an accused person being found guilty. [ See the holding in Michael Maundu Wambua vs Republic [2006] eKLR]. The evidence on record shows that the items listed were stolen from PW1, permanently to deprive her. They are items capable of being stolen…..

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The next question is who broke into the house….On the question of whether the Accused Persons were the people who broke into PW1’s shop on the night of the incident, the prosecution sought to rely on the recoveries made from the 1st and the 3rd Accused Person, and the Accused Persons reported own admissions that they broke into PW1’s shop and stole therefrom. The investigations officer (PW4) testified on how beans, a laptop, and a weighing machine were recovered from the 1 st Accused Person’s house. He added that beans were also recovered from the 3rd Accused Person’s house. PW4’s testimony on the recoveries made from the 1 st and the 3rd Accused Person’s house was not impeached by the Accused Persons. PW1 and PW2 positively identified the property recovered from the 1 st and the 3rd Accused Person as their property which had been stolen from their shop on the date of the incident. It should be remembered that the recoveries were made just some few hours after the incident. It is also noteworthy that none of the prosecution witnesses saw the Accused Person’s breaking into PW1’s shop. The foregoing shows that the prosecution’s case was grounded on the doctrine of recent possession. In determining whether the doctrine of recent possession can be invoked in the circumstances of this case, this court refers to the decision in Isaac Ng’ang’a Kahiga & another vs. Republic [2006] eKLR, where the Court of Appeal (Tunoi, Bosire & Githinji, JJ.A.) opined thus:

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“It is trite that before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. In order to prove possession there must be acceptable evidence as to search of the suspect and recovery of the allegedly stolen property, and in our view any discredited evidence on the same cannot suffice no matter from how many witnesses.” 20. Omoto v Republic (Criminal Appeal 190 of 2018) [2025] KECA 9 (KLR) Court of Appeal in Omoto v Republic (Criminal Appeal 190 of 2018) [2025] KECA 9 (KLR) In the present case, therefore, the identification evidence was fortified by the evidence of recent possession. Under our law, the doctrine of recent

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possession is a principle of circumstantial evidence that states that if someone is found in possession of recently stolen property without a reasonable explanation, then a rebuttable presumption can be drawn that they stole the property or received it knowing it was stolen. 21. This Court restated the doctrine and the elements which must be proved before the doctrine can be applied in Erick Otieno Arum v Republic Criminal Appeal 85 Of 2005 [2006] eKLR where it held: In our view, before a court of law can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possession must be positively proved. In other words, there must be positive proof, first; that the property was found with the suspect, secondly that; that property is positively the property of the complainant; thirdly, that the property was stolen from the complainant, and lastly; that the property was recently stolen from the complainant. The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other. 22. In the present case, the appellant was found with the jacket which had only a few minutes earlier been stolen from Abdi. Abdi identified it as his; and the appellant never contested the ownership. There were concurrent findings of

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fact by the two courts below that the appellant was found in possession of the jacket, which findings we pay homage to. The appellant did not offer any explanation why the jacket was in his possession. This, without more, would have been sufficient to link the appellant with the robbery. In this case, it fortifies the identification evidence as analyzed above. Given that the 1st and 3rd Accused Persons were found in possession of the property that PW1 and PW2 positively identified as their property which was stolen from their store on the date of the incident, the evidential burden, not the burden of proof, shifted to the 1 st and 3rd Accused Persons to give a reasonable explanation on how they got into possession of PW1’s stolen property. 29. Section 111of the Evidence Act stipulates that: Burden on accused in certain cases: 1. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him:

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Provided that such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross-examination or otherwise, that such circumstances or facts exist: Provided further that the person accused shall be entitled to be acquitted of the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defense creates a reasonable doubt as to the guilt of the accused person in respect of that offence. 30. The appellant upon being found to be in possession of the stores stolen from the complainant, the onus rested on him to account on how he came across the said stores. I have taken the liberty to peruse his defence which he alleged was not considered and I find that the same was not tenable as his evidence did not displace that of the prosecution. The 3rd Accused Person simply questioned whether he lacked the capacity to have beans in his house. this question was answered by PW2 was testified that the recovered beans were no ordinary beans but Canadian beans which she had bought in Trans-Nzoia for sale. One may also wonder how the 1 st Accused Person who is not engaged in any business requiring the use of a weighing scale was found with a weighing scale in his house just some hours after a weighing scale had been stolen from PW1’s shop.

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Simply put, the 1st and 3rd Accused Persons did not account for their possession of the stolen items that were recovered from them. In view of the above, this court holds and finds that the doctrine of recent possession is applicable in this case I adopt the position taken by the court in Stephen Kimani Robe and 2 Others v Republic NRB HCCRA No. 236 of 2012 [2013] eKLR, where the court observed that, “The purpose of an inventory is to keep record of exhibits recovered during investigations. Failure to prepare an inventory cannot override the physical existence of the exhibits especially where other witnesses apart from the officer who made the recovery confirms their existence.” In Leonard Odhiambo Ouma and Another v Republic NKU CA Criminal Appeal No. 176 of 2009 [2011]eKLR, the Court of Appeal held the failure to prepare an inventory was not fatal to the prosecution case. It expressed the view that: Failure to compile an inventory as contended in ground 5, is in our view a procedural step which in the circumstances, did not prejudice the appellants in any way and for this reason the omission did not vitiate the trial. We find no substance in this ground as well. We further think that the contention in ground 6 that the case was not properly investigated and therefore the evidence ought not to have been relied on by the trial court, we think this relates to an issue of credibility of the witnesses and therefore was a matter for the trial court and in the circumstances, we cannot as the final appellate

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court entertain the challenge as we cannot fault the trial court on credibility. For this reason the ground cannot be sustained and the same is rejected. Dwelling house….PW1…it is applicable…..consider their defence….whether they gave a proper account of their possession of the recoveried….. Accused Person’s Defence This court has duly considered the Accused Persons’s defence. They dwelt on their alleged assault on the date of their arrest…denied having been found by the recoveries….PW1, PW2…PW3 their landlord’s son…despite the overwhelming evidence…..simply denied committing the offence…did not give an account of how they got into possession of the recoveries…. It is against this backdrop that this court finds and holds that the Accused Persons’ defences were mere denials that did not cast any reasonable doubt on the prosecution’s case that Accused Persons broke into PW1’s dwelling house on the date of the incident and stole therefrom. The said defences is, thus, dismissed in their entirety. Differences in identity of the tv, inventory…..2 nd Accused did not explain his presence in the house…rented by 1st Accused….a visitor, a relative, a friend…a victim of circumstances…exclusive occupation and possession of the house… DETERMINATION The upshot of the foregoing is that:

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a) The Accused Persons are convicted under section 215 of the Penal Code for the offence of burglary contrary to section 304 (2) and stealing contrary to section 279 (b) of the Penal Code b) The alternative charge of handling stolen goods contrary to section 322 of the Penal Code is moot Judgment accordingly. Judgment read, signed and delivered in open Court at Bungoma this 02nd day of February 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Persons Mr. Maroro for ODPP C/A: Mr. Rioba

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