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JudgmentThe Republic VS SARAH KARIMI9 min read

The Republic VS SARAH KARIMI

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. D. Endoo (RM) in the Chief Magistrate’s Court at Embu Criminal Case No. E081 of 2023 delivered on 16th May 2023)


  1. The respondent was charged with the offence of breaking into a building and committing a felony contrary to section 307 of the Penal Code. Particulars of the offence are that on 17th January 2023, at around 2:30AM at Embu township within Embu county, the respondent, jointly with others not before court, with the intent to steal, broke and entered the store and stole from therein Amimza 900 pieces each valued at Kshs.120/= and Selector empty boxes 1500 pieces each valued at Kshs.80/=, all valued at Kshs.228,000/=, the property of David Muriithi.
  2. The respondent pleaded not guilty to the charge and the matter was heard and the respondent was acquitted under section 210 of the Criminal Procedure Code. The state has preferred an appeal against the findings of the trial court on the grounds that the learned trial magistrate erred in law and fact:
    1. By finding that the prosecution had not established a prima facie case against the respondent when indeed it had done so;
    2. By failing to thoroughly analyse the evidence of all the prosecution witnesses and exhibits produced before arriving at the decision that there was insufficient evidence tendered by the prosecution in support of the charges;
    3. By finding that the respondent did not break into a building and commit a felony contrary to section 307 of the Penal Code, without any evidential basis for the finding;
    4. By finding that the evidence on record did not prove that indeed the respondent broke into David Muriithi’s store when indeed the prosecution witnesses placed the respondent at the scene; and
    5. By finding that the text messages sent to David Muriithi by the respondent were necessary to prove that the respondent committed the offence yet there were eye witnesses who saw the respondent committing the offence. 

The appellant prays that the appeal be allowed and this honourable court do order that the respondent be placed on her defense or a retrial be ordered before a different magistrate.

  1. At the trial, PW1 was Kelvin Mwaura Kariuki who sells boxes at Majengo. He stated that on the day of the incident, he was sitting outside the store when they heard noises from one of the stores and someone was breaking the door and removing boxes. That he called one Michael and they went to check what the noise was about but the person escaped. That they informed the store owner who reported the matter to the police the following morning. That he saw the respondent in the company of a man and he recognized them as they were regular customers at the store. When he saw them, they were carrying the empty boxes. He stated that the padlock had been removed and the intruders did not have authority to open the door. On cross-examination, he stated that the incident occurred at night and he did not raise alarm because he went to notify his friend Michael who has authority over the store. He disputed that the respondent also does the business of selling boxes.
  2. PW2 was David Muriithi, the complainant, who stated that the day before the incident, he had left the store in good order and the next day, PW1 and Michael informed him that the store had been broken into and some boxes had been stolen. They told him that they had seen the respondent and 2 men carrying the boxes away. He stated that the respondent did not have authority to enter the store and to remove boxes although she was his business acquaintance. That when he went to the store, he found the door and the gate open yet there was only one key to access the store.
  3. That the padlock was taken by the investigating officer and he identified it in court. That there is light outside the store. On cross-examination, he stated that he knew the respondent as a customer and that he supplied her with boxes which she was selling. That the mutilated padlocks in court looked exactly how they did on the day of the incident. That the respondent had sent him a message telling him that he would be shocked at what would happen to the store and so he suspected her for the break-in.
  4. PW3 was Michael Muchiri Njeru who stated that he was with PW1 chewing miraa when PW1 went to fetch water. That soon afterwards, he called him and they saw the respondent who had broken into the store and stolen boxes from therein. That when she saw that they had seen her, she ran away. That they called PW2 who did not pick the call but he called the following morning and went to the scene. That he had seen the respondent once before and that night she was in the company of 2 men. On cross-examination, he denied having worked with the respondent but he reiterated that he saw her that night having taken all the boxes from the store.
  5. PW4 was PC Evans Mburu of Embu Police Station who stated that the complainant reported the incident and he visited the scene together with his 2 colleagues. That they found that the store had been broken into and the boxes stolen were worth Kshs.228,000/= according to the invoices handed over to him by the complainant, which were produced as evidence. On cross-examination, he stated that the padlock had been tampered with but the door was intact. He couldn’t tell the kind of relationship that existed between the respondent and the complainant.
  6. At the end of the prosecution’s case, the trial court found that the prosecution had failed to establish a prima facie case and the respondent was acquitted under section 210 of the Criminal Procedure Code.
  7. The appeal herein was canvassed by way of written submissions.
  8. The appellant, in its submissions, relied on section 210 of the Criminal Procedure Code and the cases of Ramanlal Bhat v Republic (1957) EA 332 and Republic v Ndege (Criminal Appeal 60 of 2019) (2022) KEHC 11930 (KLR) in which the court relied on the case of Phiri Mailesi v Public Prosecutor, Court of Appeal of Malaysia, Criminal Appeal No: p-05-311-11/2011. It was its argument that at the end of the prosecution’s case, the court ought to subject all the evidence to scrutiny before drawing any conclusions on whether or not the accused person has a case to answer. That the trial court failed to consider the merits of the evidence adduced, thus misapprehending it. That there is direct evidence to show that the respondent committed the offence. It urged the court to overturn the trial court’s findings.
  9. The respondent submitted that the trial court rightly found and acquitted her.  She relied on the cases of Republic v. Abdi Ibrahim Owi (2013) eKLR, Republic v. Alex Musau Jimmy (2022) eKLR and Ramanlal Bhat v Republic (1957) EA 332 and stated that the trial court can find that an accused person has no case to answer where the evidence does not persuade it. She argued that the testimony of PW1 and PW2 are inconsistent since they failed to properly identify the respondent given that the offence was committed at night. That they also failed to identify the man who was allegedly in the company of the respondent. She stated that the prosecution alluded to text messages which evidence does not add any value to the case. She urged this court to uphold the findings of the trial court.
  10. The issue for determination herein is whether the trial court erred in acquitting the respondent under section 210 of the Criminal Procedure Code.
  11. It is trite that this is a first appeal. The duty of the court was stated in the case of Okeno v. Republic (1972) EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:

“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336)) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. R. (1957) EA. 570).  It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions.  Only then can it decide whether the magistrate’s findings should be supported.  In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”

  1. The offence herein is provided for under Section 307 of the Penal Code which states:

“Any person who breaks and enters a schoolhouse, shop, warehouse, store, office, counting-house, garage, pavilion, club, factory or workshop, or any building belonging to a public body, or any building or part of a building licensed for the sale of intoxicating liquor, or a building which is adjacent to a dwelling-house and occupied with it but is not part of it, or any building used as a place of worship, with intent to commit a felony therein, is guilty of a felony and is liable to imprisonment for five years.”

  1. According to section 4 of the Penal Code, “felony” means:

“an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with death, or with imprisonment for three years or more;”

  1. PW1 testified that he heard someone breaking into the store and the person was removing boxes. That he went and called PW2 and by the time they went near the store, they saw someone escaping using the back door. That he saw the intruder was a lady, who was a frequent customer, in the presence of a man and they were carrying boxes away. PW3 stated that he was chewing miraa with PW1 and he left him briefly to go and fetch water. That he saw the accused who had broken into the store and had stolen boxes which she went away with.
  2. He stated that he saw the respondent because there was slight light outside the store. PW2, the store owner and PW4 the investigating officer, stated that they found the store padlock broken and the boxes had been taken away. PW2 stated that the respondent had earlier sent her a message telling him that he should not be shocked if he saw what was going to happen to the store and that he should stop showing off. This message was not produced as evidence. He stated that he did not give the respondent access to his store. PW4 produced the broken padlock as evidence of the break-in.
  3. From the evidence adduced, the lighting outside the store was described as ‘slight’ and PW1 and PW2 stated that when they say the intruders they were running away. In my view, the intruders were not properly identified given the inadequate lighting that night and absence of an identification parade. While it is evident that boxes were stolen from the store, this court has its doubts on the identification of the intruders.
  4. The circumstances may be that the store owner suspects the respondent. However, no suspicion, however strong, is enough to sustain a conviction. In the case of Mary Wanjiku Gichira v Republic, [1998] KEHC 59 (KLR), the court held that suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accused person of an offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt.
  5. Therefore, I find that this appeal lacks merit and it is hereby dismissed.
  6. It is so ordered.

Delivered, dated and signed at Embu this 09th day of October, 2024.


    The Republic VS SARAH KARIMI The Republic VS SARAH KARIMI