David Ochieng & 2 others v Republic ::::::::::::::::::::::::::::::::::::::::::::::::::;;:::::::::::::::: & 1 other

before court vandalized a transformer S/No.007609 rated 50/11 valued at kshs.970,000/-, the property of Kenya Power and Lighting Company. COUNT II : Stealing of energy equipment or appliances contrary to Section 169(1)(c) of the Energy Act No.1 of 2019 in ..... on the night of 13th July 2024 and 14th July 2024 at Mirogi center, Ndhiwa – Homa Bay county jointly with others not before court willfully stole transformer oil valued at kshs.16,000/- under control of and property of Kenya Power and Lighting Company. [2] After pleading not guilty to both counts, the appellant was tried, convicted and sentenced to pay a fine of Kenya shillings five(5) million for each of the counts and in default to serve ten(10) years imprisonment on each count to run concurrently. HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 2

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Being dissatisfied with the conviction and sentence the appellant preferred the present appeal on grounds set out in the petition of appeal filed herein on 17th December, 2025. [3] Basically, the appellant complains that he was convicted on prosecution evidence which was insufficient and that his constitutional rights under Article 50(2) of the Constitution were violated. The appeal was opposed by the state/respondent through the office of the Director of Public Prosecution (ODPP) in a hearing which proceeded by way of which submissions filed herein by both sides. [4] At this point, the duty of this court, was to reconsider the evidence adduced at the trial and draw its own conclusions being in mind that the trial court had the benefit of seeing and hearing the witnesses (See, Okeno Vs Republic [1972]EA 32). In that regard, the evidence led by the prosecution through its seven prosecution witnesses (PW1 to PW7), mostly police officers save the government analyst (PW2) and an officer from HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 3

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Kenya Power (PW3), was duly considered by this court against the appellant. Its evidence in defence as supported by that of his wife, Janet Adhiambo Teyi (DW2). [5] The sum total of the entire evidence as acknowledged by the trial court in its impugned judgment showed that there was no contest or dispute with regard to the facts of elements of vandalism and theft. Indeed there was sufficient and credible evidence availed by the prosecution that a transformer belonging to the complainant. Company was vandalized and the oil therein unlawfully removed. The big question was whether the transformer was vandalized and its oil stolen by the appellant. [6] The defence case was a denial, the burden to establish the guilt of the appellant invariably lay with the prosecution. It was therefore incumbent for the prosecution to provide sufficient and credible evidence to prove that the material property of the complainant was vandalized and/or stolen by the appellate. The HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 4

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ingredient of identification was thus crucial for a safe and sound conviction of the appellant. [7] Evidently, the offences appeared to have been committed in the hours of darkness without the presence of any persons at the scene save the offender or offenders. This explains why there was no direct evidence of identification against the appellant hence prompting the prosecution to rely on indirect or circumstance evidence to show that the complainant was none other than the appellant. [8] The police officer (PW1, 4, 5, 6, & 7) indicted in their collective evidence that they acted on information received from a police informer to proceed and carry out searches in houses or homes occupied by the appellant and his two wives and in the process recovered several items (PEx 1, 2, 3, 4, 5, 6, 8, 11, 12, 13, & 14) some of which were linked to the vandalized transformer by the officer from the complainant company i.e Raphael Onyango Okoth (PW3). HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 5

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The government analyst, Richard Kimutai Langa (PW2), confirmed that the oil found in possession of the appellant was actually transformer oil thereby implying that it was the same oil which was unlawfully removed from the transformer when it was being vandalized. [9] This link between the recovered items and the vandalized transformer was sufficient evidence indicating that the person responsible for the vandalism and theft was none other than the appellant herein. His possession of the material items was both constructive and direct and was not satisfactory or at all explained by the appellant in his defence. There was no evidence from him to show that he was an employee of the power company or its contractor in order to be in lawful possession of the company’s property. His possession of the property was thus unlawful and a clear demonstration that the vandalized and stolen the property. [10] In that regard, the appellant’s defence was unsustainable and was effectively disproved by the prosecution HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 6

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considering that the circumstantial evidence against him was cogent, credible and more compatible with his guilt rather than innocence. It is therefore the finding of this court that the appellant’s conviction by the trial court on both counts was lawful, safe, sound and is hereby affirmed. [11] As regards the sentence, it was lawful and mandatory in terms of the fine of Kenya shillings five(5) million, but not in terms of the prison sentence or rather default sentence. The wordings of Section 169(1)(b) and section 169(1)(c) of the Energy Act do not allude to a mandatory sentence of imprisonment for a term of not less than ten years. Therefore, the prison default sentence imposed on the appellant was in the opinion of this court rather excessive consideration being given to the fact that the appellant was a first offender. It is therefore reduced to five(5) years imprisonment for both counts to run concurrently. Otherwise, the appeal is hereby dismissed. Ordered accordingly. [Delivered & Dated this 29TH day of JULY 2026] HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 7

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__________________________ HON. J.R. KARANJAH JUDGE HCCR.APPEAL NO.E063 OF 2025 JUDGEMENT PAGE 8

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