Republic v Magita (Criminal Case E173 of 2026) [2026] KEMC 827 (KLR)

handed it to the accused person. PW2 confirmed giving out the laptop and its charger. PW1 said it was a Dell make laptop which was bought by his elder brother and identified a receipt for the said laptop as PMFI-1. 4. PW1 said they sleep in the same room with accused but they have portioned the room and accused sleeps near the door. On 30/3/2026 PW1 woke up at 7:00pm and found the accused not in the room. At 9:00am he wanted to use the laptop. He went to look for it where the accused’s sleeps but it was not there. He asked PW2 if she had seen the accused but she said she had not seen him and he had not given her the laptop. 5. The accused came back home at 9:00pm and when PW1 asked him about the laptop he alleged that he saw a person entering the house at night and went with the laptop. The accused smelled of alcohol and he let him sleep. 6. In the morning of 31/3/2026 at 11:00am PW1 asked accused about the laptop and he told him that he had given it his friend PETER, who they searched for in vain. He gave accused time to look for the laptop in vain. 7. On 11/4/2026 he reported the matter to the police at Isebania police station and he was arrested and charged. PW3 investigated the case, arrested and charged the accused. He produced the receipt for the laptop as exhibit-1. The prosecution then closed its case. The Accused Defence Case 8. The accused DW1 ANGELO BOKE MAGITA was placed on his defence gave sworn defence and denied the charges. His evidence was that according to this case, two laptops were stolen while he was in the house sleeping. That the person who stole the same ran away before he could see him. He prayed that he be acquitted. The accused then closed his defence case. The Law KEHANCHA SPMC CR NO. E173 OF 2026 (JUDGMENT) 2

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9. The accused has been charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code. Section 268 provides that: (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. 10.Section 275 of the Penal Code sets out the penalty for stealing as follows: “Any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.” Determination The main issue for determination is whether the prosecution has proved its case beyond any reasonable doubt. 11.In dealing with the ingredients of the offence of stealing, the Court of Appeal in the case of, John Muiruri Kagunyi v Republic [1982] eKLR stated that: “Stealing consists of taking anything "fraudulently and without claim of right (section 268(1) of the Penal Code).” 12.In the case of Ketan Somaia & another v Republic [2005] eKLR the High court stated that: “The reason for that holding is simple. It is to be found in the definition of the term “stealing” as set out in section 268 of the Penal Code. For a person to be convicted for the offence of KEHANCHA SPMC CR NO. E173 OF 2026 (JUDGMENT) 3

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stealing, he must take or convert the thing, fraudulently. In other words, the prosecution must prove not only the act of taking or conversion, but also that the person had a fraudulent intent. It is therefore not sufficient for the prosecution to prove that the accused person was negligent or reckless.” 13.Thus in a charge of stealing two crucial elements must be established; conversion and fraudulent intent. To prove fraud, the prosecution is required to prove that the accused persons formed the mens rea to deprive the owner of ownership of the thing stolen. 14.In our instant case I have carefully considered the prosecution evidence and the accused defence on record and find that it is not in dispute that the accused was given the laptop make dell grey in colour. He was given the same by PW1 on 29/3/2026 at around 11:00pm upon his request. PW1 discovered in the morning of 30/3/2026 that the accused was not in the room where they sleep together and when he wanted to use the laptop he did not find it. 15.When the accused came 9:00pm he told PW1 that he saw a person entering into the house and went away with the laptop. However, the accused did not raise any alert. In his defence he said that a person entered into the house while he was sleeping and took the laptops and ran away before he could see him. If indeed, the accused saw a person entering the house and taking the laptop, then why did he not raise any alarm? In fact, he disappeared till the following day at 9:00pm when he came back smelling of alcohol. 16.The accused when asked about the laptop on 31/3/2026 PW1 and PW2 said that the accused told them he had given it to his friend one PETER. The accused took them to search for the said PETER in vain. The accused did not KEHANCHA SPMC CR NO. E173 OF 2026 (JUDGMENT) 4

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challenge this evidence in cross examination and in his defence. This demonstrates that the accused knew what had happened to the laptop. This evidence proves that the accused fraudulently took the laptop and had the mens rea to deprive the complainant of said laptop. This is clear from the evidence on record which show that the accused first alleged that he saw a person entering into the house and took the laptop. He later changed that he had given the same to his friend one PETER. 17.It is may considered opinion that the prosecution has been able to prove beyond any reasonable doubt that the elements of conversion and fraudulent intention on the part of the accused person. in the end I find the accused person guilty as charged with the offence of stealing contrary to section 268(1) as read with section 275 of the Penal code, and convict him under section 215 of the Criminal Procedure Code. Dated, Signed and Delivered in open Court at Kehancha on this 27 th day of August, 2026 virtually via Microsoft Teams J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Kigera………… Court Assistant Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili KEHANCHA SPMC CR NO. E173 OF 2026 (JUDGMENT) 5

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