Obadiah Ondieki Mosomi------------------------------ 1st Appellant & 1 other v Republic----------------------------------------------------------- Respondent

d) THAT, the learned trial magistrate erred in law and fact by convicting me with uncorroborated evidence from the prosecution. e) THAT, the learned trial magistrate erred in law and fact by convicting me by the mere assumptions made facts. f) THAT, the learned trial magistrate failed and erred in law by. failing to give the petitioner the chance to file written submissions. g) THAT, the learned trial magistrate erred both in law and facts by failing to appreciate the inconsistencies and contradictions in the prosecution and went ahead and gives opinionated judgment and conviction. h) THAT, I hail from humble family and am a pauper therefore I was unable to hire a lawyer to file my appeal within the required time in law of 14 days. I also did not have any legal knowledge which I could have used to draft my appeal within the required time. 3. The appellants filed written submissions in support of the grounds which were received in court on 18th January 2023 and at the hearing of the appeal they fully adopted the submissions and urged the court to consider the same as well as the period they have already served since the time they were convicted. ISSUES FOR DETERMINATION 4. The issues for determination that arise from the grounds of appeal are: i. Whether the prosecution put its case beyond a reasonable doubt ii. Whether the learned Honorable magistrate shifted the burden of proof to the accused persons. iii. Whether the evidence presented by the prosecution was uncorroborated. NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 2

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iv. Whether there were inconsistencies and contradictions in the prosecutions evidence to warrant quashing of the conviction and sentence SUMMARY OF THE PROSECUTIONS CASE 4. The prosecution called PW1 Fredrick Oballa a KPLC Engineer who stated that on 1st November 2018 they proceeded to the Ruai sewage area after receiving information that electrical lines were being vandalized. He testified that in the company of police officers and a KPLC security officer, he found one pole had already been felled and another was in the process of being vandalized. At the scene, he encountered the two accused persons with vandalism tools including: Crowbar (MFI 6), Concrete climbers (MFI 2) , Safety belt(MFI 3) , Rope (MFI 4) , Pliers(MFI 5) and a soil-scoop. Approximately 200 metres of Aluminium conductor (MFI7) and other wiring materials had already been removed. 5. PW1 maintained that the accused persons were caught in the act and were immediately arrested. The scene was photographed and the recovered items were marked for identification. 6. Upon cross-examination by 1st accused and 2nd accused, he maintained that he found both accused vandalizing the line and that they did not resist arrest. 7. PW2 PC Hezekiah Waweru of KPLC Security Department testified that he received a tip-off about vandalism and proceeded to the Ruai sewage area with other KPLC officers and police. On arrival, they found the two accused persons vandalizing the electricity lines, having already removed one pole and working on another. NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 3

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8. He went on to state that the accused were arrested at the scene and several items used in the vandalism were recovered, including crowbars, pliers, climbers, ropes, safety belts, a black bag, and approximately 200 metres of aluminium conductors. 9. The witness confirmed that the photographs of the scene were taken, the exhibits were documented, and the suspects were booked at Ruai Police Station. 10. During cross-examination by both 1st and 2nd accused, PW2 stated that both accused were found attempting to remove the second pole and that they refused to sign the inventory prepared after the arrest. 11. PW3 was Samuel Patrick Njue Chief Security Officer, KPLC who stated that upon receiving a report of ongoing vandalism at the Ruai sewage area, he accompanied police officers to the scene. He went on to state that they found two males, identified in court as the accused, actively vandalizing the main KPLC power line. One pole had already been felled and another was hanging. The police arrested the accused, and tools used in the vandalism were confiscated, including climbing irons, a rope, pliers, a crowbar, and 200 metres of conductor wire. 12. During cross-examination by both 1st and 2nd accused, PW3 stated that the accused were found at the scene “in action” and were not photographed individually because they were already under arrest. He denies knowing them before the incident and confirms the photographs relate to the felled and hanging posts. 13. PW4 Corporal Daniel Njoroge a Police Officer Attached to KPLC stated that on the material date he accompanied other officers to the Ruai sewage area after receiving a report of vandalism. He further stated that he and a colleague approached the scene acting as if they were looking NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 4

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for land, allowing them to observe the accused while actively engaged in vandalizing the electric lines. They arrested both men and recovered vandalism tools, including a crowbar, climber bag, pliers, a rope, a safety belt, and a black backpack. 14. PW4 confirmed that photographs of the vandalized items were taken and that he prepared an inventory, which the accused refused to sign. 15. Upon cross-examination, by both 1st and 2nd accused, PW4 maintained that he found both accused at the scene between 9.00 and 11.00 am and denies the allegations that officers demanded money or threatened the accused. He went on to confirm that the accused persons were the perpetrators and were not photographed to avoid alerting them before making arrests. SUMMARY OF THE DEFENCE CASE 16. The two accused person after they were placed on their defense, the 1st accused opted to tender an unsworn defense whereas the 2nd accused tendered a sworn defense. 17. 1st Accused Obadiah Ondieki stated that he was a casual laborer residing in Ruai. On the day of the event, he was preparing to attend a burial, waiting along the roadside between 9.00am and 10.00am with another person. He stated that there was a leaning or hanging pole near the road, but they were standing about 20 metres from it. 18. He went on to state that the 2nd accused, whom he knew, passed by on a boda boda and stopped to greet them. While they were conversing, two unknown men walked past and later returned, questioning them about their presence in the area. When they explained they were heading for a NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 5

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burial, one of the men drew a gun. They were then handcuffed and interrogated about the damaged power line. 19. Further, the 1st accused stated that another person who was with them managed to move away since he had not been handcuffed. The accused persons were taken into a vehicle where the officers took photographs of them, threatening to publish them in the media. They were driven around until about 8.00pm, then taken to an office where they recorded some of their tools as belonging to him. 20. The 1st accused claims the officers instructed him to sign the inventory to retrieve the tools later, which he refused. He further stated that at around 9.00pm a man came to the police station claiming the vandalized line belonged to him and slapped the 2nd accused. He told the court that officers refused to show the court the photographs taken at the scene. He adds that the electric line passes through a disputed piece of land that sometimes had no electricity supply because of that dispute. He appealed for justice, stating he is the sole caregiver of two children. 21. The 2nd Accused Hesbon O. Kinaro stated on oath that he was a boda boda operator living in Ruai. On 1st November 2018, he went out for his usual work and responded to a call from a client asking him to go to an area approximately 700 metres from his boda boda stage. 22. On arrival, he found the 1st accused together with other men standing by the roadside near a felled electric pole and another pole that was hanging loosely. 23. He further explained that he had stopped to speak to them when two men in civilian clothing approached, one pointing a gun at the 1st accused, and both proceeded to arrest them. He stated that the officers took their NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 6

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mobile phones and that both accused explained they were boda boda operators. 24. According to the 2nd accused, the officers accused them of “eating alone” and demanded to know who had dropped the pole. He maintained that the pole had been lying at the site for about a month because of an ongoing land ownership dispute. 25. The 2nd accused went on to state that they were driven around, promised release, but eventually taken to KPLC offices around 7.00pm, where his clients later arrived but were asked to pay Kshs. 1,000,000 for their release. The clients could not raise the money. He further stated that he was the chairman of a boda boda sacco known as St. Joseph and that the OCS Ruai knew him. He maintained they were later taken to Ruai Police Station and eventually presented in court. 26. Upon Cross-examination the 2nd accused confirmed that he was with the 1st accused and another person when arrested. He named his client as Sarah Momanyi. He admits he voluntarily stopped at the area but denies any involvement in vandalism. He claimed that the officers took photos of them at the scene but failed to produce them. He stated that Corporal Njoroge and PC Waweru demanded Kshs. 1,000,000 from him. 27. The evidence that the court relied on to convict the two appellants is as captured above. 28. The two appellants filed written submissions which they adopted at the hearing of the appeal and the court has duly considered the same. ANALYSIS AND DETERMINATION 29. This court as a first appellate court has a duty to analyze and re-evaluate the evidence tendered before the lower court and draw its own NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 7

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conclusions on the matter while remembering that unlike the lower court it did not have the advantage of seeing or hearing the witnesses thus due allowance for that is to be made. See Okeno vs Republic (Criminal Appeal 26 of 2021){2024}KEHC2894 KLR. 30. The appellants have contended that the trial court shifted the burden of proof to them thus the conviction ought to be quashed. 31. The court has carefully perused the judgment of the magistrate and it does appear that the learned magistrate dismissed the defense of the appellants as a mere denial. 32. The evidence of the prosecution witnesses PW1, 2, 3 and 4 was direct and connected the two appellants to the offence. The arrest happened between 9 and 11 a. m thus the identity of the appellants could have been mistaken. The appellants admitted as much that they were found at the scene and they were arrested therefore the appellants were not known to the witnesses before the date of arrest thus there is no possibility of frame up by the prosecution witnesses. The explanation by the prosecution witnesses that they could not take photographs of the appellants while in the act is plausible since any attempt to take photographs of the appellants while in the course of committing the offence would have caused them to flea the scene and avoid arrest. 33. Having carefully examine the judgment of the trial court any evidence that the burden of proof was shifted to the appellants. The offence with which the appellants were charged with was therefore adequately proved thus the appeal cannot succeed on that ground. 34. The appellants defense was considered and properly rejected by the trial court. On the claim that the evidence was contradictory this court finds that PW1, 2 ,3 and 4 corroborated each other’s evidence in material NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 8

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particulars and there was no material contradiction that would affect the final decision by the Honorable trial court. It is important to note that for contradictions to result in the quashing of a conviction, such contradiction must be material as to render the conviction unsafe. 35. In Shitula Vs Republic (Criminal Appeal 55 of 2019) [2025] KECA 12 KLR ( 10 January 2025) (Judgment) the court held: “that a court of law will ignore minor contradictions that do not go the route of the prosecution’s case”. It is the finding of thus court that there exists no material contradictions on the record to justify the quashing of the conviction. The appeal on conviction therefore fails. 36. On sentence this court finds that the learned Honorable magistrate in the sentencing notes did not address himself to the provisions of Sections 333 (2) of the Criminal Procedure Code. This court therefore orders that the period of imprisonment shall be computed to include the period that each of the appellants may have been in custody prior to the date of conviction and sentence. 37. The appeal on conviction is therefore dismissed. On sentence the same shall be computed from the date of arrest. 38. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 14th day of APRIL, 2026. A. M. MUTETI JUDGE In the presence of: NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 9

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Habiba: Court Assistant Oloo for the Appellant Mogere for the Respondent Appellant: Present NAIROBI HC CR APPEAL E 124 OF 2023 – Judgment, Obadiah Ondieki Mosomi & Ano. vs Republic 10

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