Republic v Indako (Criminal Case E170 of 2025) [2026] KEMC 694 (KLR)

3. Count II was a charge of unauthorized access contrary to section 14 (1) of the Act, the particulars being: On the diverse dates between 22nd day of August 2023 and 16th day of July 2024 at Bungoma town, Bungoma South Sub-County in Bungoma County within the Republic of Kenya while using hard drive make Western Digital Hard Drive S/NO. WX31A89D4YOF, hard drive make HGST S/NO. 151113JA108NSB1KH7XR, hard drive make Seagate S/NO. W3P54WTW, and hard drive make Toshiba S/NO. 147VVAZKS, the Accused Person intentionally and unlawfully accessed M-KOPA (K) Limited communication system in phone devices namely 83 samsung phones, 52 Nokia phones and 1 X20 phone totaling 126 phones per the attached list thereby installing unknown firmware preventing the transmission of M-KOPA mobile phone date to the control tower. 4. Count III was a charge of unauthorized interference contrary to section 16 (1) of the Act, the particulars being that: On the diverse dates between 22nd day of August 2023 and 16th day of July 2024 at Bungoma town, Bungoma South Sub-County in Bungoma County the Accused Person intentionally and unlawfully interfered with the system of 136 M-KOPA mobile phones (83 samsung, 52 Nokia and 1 X20 phones) as per the attached list thereby allowing the mobile phones to work without daily payments to M-KOPA Kenya Limited causing a total financial loss of Kshs. 1,663,108/= to M-KOPA Kenya Limited as per the attached list 5. Count IV was an ofience of unlawful possession of devices contrary to section 18 (2) of the Act, whose particulars are: On the 17th day of July 2024 at Bungoma town, Bungoma South Sub-County in Bungoma County within the Republic of Kenya having been detained by No. 10xxx9 PC Felix Koono and No. 10xxx4 PC (W) Christine Onyango as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code, the Accused Person had in his possession two J tags, one pandora box, one tufi box, one dongle all devices used for illegal programming of mobile phones 6. The last charge facing the Accused Person was the charge of being in possession of suspected stolen property contrary to section 323 as read with section 36 of the Penal Code. The particulars of this charge were that: On the 17th day of July 2024 at Bungoma town, Bungoma South Sub-County in Bungoma County within the Republic of Kenya having been detained by No. 10xxx9 PC Felix Koono and No. 10xxx4 PC (W) Christine Onyango as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code, the Accused Person had in his possession five M-KOPA mobile phones make Samsung A03, Nokia C31, two Nokia C32, Nokia C30 all valued at Kshs. 164,470/= and 7 assorted phones (6 Nokia and 1 Samsung) reasonably suspected to have been stolen 7. The Accused Person denied all the charges facing him. Consequently, this matter proceeded to full hearing for the prosecution to prove their case against the Accused Person beyond reasonable doubt. 8. A summary of the evidence led by the prosecution and the defence is set out below. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 2

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Evidence Prosecution’s Case 9. PW1 No. 10xxx9 PC Felix Kono a police oficer attached to M-Kopa (K) Limited (‘M-Kopa) as a Liaison Oficer performing investigations duties testified that on 17th July 2024 while in the company of CPL (W) Masinde and PC (W) Onyango in Bungoma town for investigations duties, they received a tip ofi about a mobile phone repairer dealing with stolen mobile phones and interfering with M-Kopa phones security features. 10. They sought reinforcement from Bungoma Police Station and proceeded to the Accused Person’s mobile phones repair shop, where they recovered twelve suspected stolen phones, which included five M-Kopa branded mobile phones, one dell laptop paired with a Sea Gate drive, and suspected phone fiashing tools/devices. They led the Accused Person to Bungoma Police Station, whereafter PC (W) Onyango took over the matter for investigations. He added that he prepared the recoveries’ inventory. 11. In cross-examination, he stated that the Accused Person signed the inventory, and that all the items set out in the charge sheet were recovered from the Accused Person’s shop. He added that medusa and infinity are access codes that were identified after forensic analysis of the devices recovered from the Accused Person’s shop. 12. He conceded that the Accused Person was operating a legal phone repair shop at the time of his arrest. He reiterated that whereas some of the items recovered from the Accused Person were legal, there were others that were illegal. 13. He further stated that they conducted a raid at the Accused Person’s shop without a search warrant since there was no need for one, given that the Accused Person was dealing with suspected stolen property. 14. PW2 Jayson Nyingi Waigwa is an Application Security Analyst at M-Kopa. His testimony was that on 18th July 2024, he received a letter from PC (W) Onyango requesting him to analyze five (5) mobile devices; Samsung A03 S/NO. 350230230828310, Nokia C31 S/NO. 358491281695539, Nokia C32 S/No. 355321870073385, Nokia C30 S/No. 350804636964265, and Nokia C32 S/No. 355321876358400, belonged to M-Kopa and whether they had been tampered with. 15. His analysis revealed that all five phones forwarded to him by PC (W) Onyango had been interfered with through factory reset, tampering with the hardware, and uninstallation of the M-Kopa application between 24th November 2023 and 25th May 2024. 16. He produced the said phones’ analysis reports as exhibits (Pexh. 6 – 8). 17. He further stated that on 13th February 2025, PC (W) Onyango requested him to identify M-Kopa phones IMEIs from the DCI Forensics report dated … he identified 136 unique IMEIs. His analysis also revealed that 103 of those devices were not communicating with the M-Kopa system and were not being paid for, thus occasioning M-Kopa a loss of Kshs. 1,663,108/=. 18. He produced a letter dated 14th February 2025 (Pexh. 11) listing the M-Kopa phones he identified from the DCI Forensics report. 19. In cross-examination he stated that his duty was to identify M-Kopa phones from the list of 103 devices generated by the DCI and not to analyze the physical phones. He also stated that CPL (W) Onyango handed her the five M-Kopa devices in Nairobi through hand delivery and that he analyzed the same in her absence. He could not identify who had interfered with the M-Kopa phones he had analyzed. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 3

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20. PW3 No. 23xx78 CI Francis Munyi of DCI Headquarters cybercrime lab stated that he is a graduate of Dedan Kimathi University holding a degree in Criminology and Cybercrime. He further stated that he was a certified ethical hacker and fraud examiner with over ten (10) years of working experience. 21. He testified that on 26th September 2024, the DCI Forensics lab received exhibits from Bungoma Police Station through an exhibit memo form Lab No. CCU939/2024 forwarding the exhibits set out in that exhibit forwarding memo, requiring him to respond to the four requests in the said exhibit forwarding memo. 22. His analysis revealed that the exhibits forwarded to him for examination contained several programs for mobile phone repair and fiashing. 23. He could not tell if the person who had the mobile phone repair and fiashing programs he identified during his analysis had permission to use them or not. He added that the tools forwarded to him for analysis are usually misused to tamper with devices like mobile phones. 24. He produced the forensic report dated 06th February 2025 (Pexh. 9 (a)) and a certificate dated 06th February 2025 (Pexh. 9(b)) as exhibits. 25. He stated in cross-examination that there was no need for gazettement of a digital forensic examiner. He also stated that the DCI Forensics Lab was not ISO certified. He added that he conducted the analysis using the Standard Operating Procedures used in the DCI Lab. 26. He conceded that a hard drive did not have tamper-proof seals but clarified that a hard drive and an operating system keep activity logs, and that activity logs have time stamps; therefore, any activity happening to a hard drive or an operating system after seizure can be refiected in an analysis report. 27. PW4 No. 10xxx4 PC (W) Christine Onyango is a police oficer attached to Jamhuri Police Station as well as a liaison oficer at M-Kopa performing investigation duties. She investigated this case. She corroborated PW1’s testimony on how the recoveries were made on 17th July 2024 from the Accused Person’s phone repair shop at Supreme Centre, Bungoma. 28. She further stated that she forwarded the exhibits/recoveries to DCI headquarters in Nairobi for forensic analysis. 29. She recalled that the forensic analysis report from DCI headquarters revealed that the devices recovered from the Accused Person’s mobile phone repair shop had software that could interfere with the phones’ security logging system. 30. She forwarded the DCI forensic report to PW2, who identified 136 M-Kopa phones that the Accused Person had interacted with using the devices recovered from him through interfering with the M-Kopa security system, thereby occasioning M-Kopa a loss of Kshs. 1,683,103/=. 31. She added that one of the phones recovered from the Accused Person had been reported stolen at Bungoma Police Station vide OB. No. 17/13/03/2024. She produced all the devices recovered from the Accused Persons as exhibits. 32. During cross-examination, she admitted that they did not have a search warrant during the raid at the Accused Person’s shop. She stated that between July and September 2024, the exhibits were in safe custody at Bungoma Police Station. 33. It was her further testimony that, whereas she did not see the Accused Person reprogramming the mobile phones, she relied on the DCI forensic report to charge the Accused Person with the ofiences herein given that the Accused Person was found with the reprogramming devices. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 4

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34. She added that the charges in count 5 were informed by the Accused Person’s failure to provide the customers who gave him the M-Kopa phones found in his possession. She reiterated that they did not need a search warrant to raid the Accused Person’s shop for a search, given that the ofience was cognizable and that the Accused Person allowed them access to the shop. Defence Case 35. At the close of the prosecution's case, this court found and held that the Accused Persons had a case to answer. The Accused Persons elected to give sworn testimony and called one witness. 36. DW1 Erick Lumumba Indako testified that he works as a mobile phone repairer along Mumias road within Bungoma town. He produced his business permit (Dexh. 1). He admitted that police oficers searched his business premises on 17th July 2024, and carted away his phone repair equipment and several mobile phones. He added that he bought the equipment recovered from his shop by the police oficers. 37. He added that the mobile phones recovered from his shop were not stolen phones but had been taken to his shop for repair by customers. He denied accessing or interfering with the M-Kopa system. 38. He admitted to bypassing the customers’ passwords during the repair of the phones with the customers’ consent. He also admitted being in possession of the J-tag, pandora box, fiash disk, Western Digital, and WD hard drive 500 GBs, which were recovered from his shop by the police. He added that it was not illegal to have the devices recovered from him since the devices are used in phone repair. He denied being in possession of the tufibox, medusa, Toshiba, and chimera that were reportedly recovered from his shop by the police. 39. DW2 Collins Odhiambo Oduol stated that sometime in July 2024, he took his Nokia C32 phone to the Accused Person’s shop for repair of the charging system. He added that the mobile phone was bought by his cousin Rebecca through an M-Kopa loan. 40. In cross-examination, he stated that he did not have the mobile phone’s purchase receipt. Written Submissions 41. Upon conclusion of the hearing of this matter, the prosecution chose to rely on the evidence on record. The Defence filed written submissions summarized below. 42. The defence submitted that the issues for determination were whether the prosecution had proved beyond reasonable doubt the ofiences facing the Accused Person and whether the prosecution proved the chain of custody, legitimacy of seizure, and the connection of the recovered items to any alleged ofience in light of procedural requirements under criminal law. 43. On count I, the prosecution submitted that the Accused Person was a licensed phone repair technician, as evidenced by his business permit dated 07th February 2024; therefore, the devices and mobile phones recovered from his shop were incidental to the lawful operation of such repair business. 44. The defence added that the prosecution did not present any evidence excluding the possibility of the Accused Person’s legitimate possession of the items recovered from him for repair, and that the prosecution did not establish that the alleged possession of the tools was accompanied by the requisite criminal intent prescribed in section 18 (1) of the Act. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 5

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45. Further, the defence took the position that there was neither evidence nor forensic trail on record showing that the Accused Person used, installed, or intended to use any of the tools or devices for the commission of an ofience. 46. They placed reliance on Lenolkulal & 2 Others v Republic (Criminal Appeal E009 & E008 (Consolidated) (2025) KEHC 16027 (KLR) for the position that any defence that raises a reasonable doubt as to the culpability of the Accused Person must be interpreted in favour of an acquittal and that suspicion no matter how strong cannot be the basis of a conviction. 47. On whether the Accused Person had unauthorized access or interfered with the M-Kopa system, it was the defence’s submission that the prosecution did not lead any witness testimony or technical records directly linking the Accused Person to any act of unauthorized access or interference. The defence added that the forensic reports on record merely demonstrated that the devices recovered from the Accused Person were technically capable of certain actions but fell short of identifying the Accused Person as the perpetrator of the unauthorized access and interference of the M-Kopa system. 48. The defence took issue with the prosecution’s failure to obtain or produce a search warrant before entering and searching the Accused Person’s business premises despite there being no exceptional circumstances to justify a warrantless search. They also added that it was procedurally wrong for the inventory to be signed at the police station instead of being signed at the scene. The defence was thus of the view that the foregoing compromised the exhibits' chain of custody. 49. It was also the defence case that the failure by the prosecution to call independent witnesses, customers, or even neighbours to confirm that the recoveries were made from the Accused Person’s shop cast reasonable doubt on the prosecution’s case that the recoveries were made from the Accused Person’s shop. 50. Turning to the ofience of being in possession of suspected stolen property, the defence submitted that the prosecution neither called any complainant nor alleged owner to testify on whether the five M-Kopa phones recovered from the Accused Person’s shop were stolen nor tabled any documentary evidence or report to prove the Accused Person’s unlawful acquisition of the M-Kopa phones. 51. The defence added that the prosecution had failed to discharge its burden under the ofience of proving that the goods were stolen or unlawfully obtained, and that the Accused Person failed to give a satisfactory account of how he got into possession of the recovered M-Kopa phones. 52. The defence took the position that the Accused Person’s explanation that he was in possession of the M-Kopa phones in the ordinary course of business of phone repair was suficient to dislodge the prosecution’s case in count V. 53. It is against this backdrop that the defence urged this court to acquit the Accused Person under section 215 of the Criminal Procedure Code of all the ofiences herein. Analysis and Determination 54. This court has carefully considered the evidence on record, the written submissions by the defence, as well as the authorities cited by the defence. 55. It is this court’s considered view that the issues which commend to this court for determination are: a. Whether the failure to obtain a search warrant to search the Accused Person’s business premises was fatal to the prosecution’s case b. Whether the chain of custody of the exhibits was compromised https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 6

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c. Whether the prosecution proved the charges facing the Accused Person beyond reasonable doubt Whether the failure to obtain a search warrant to search the Accused Person’s premises was fatal to the prosecution’s case 56. The defence submitted that the prosecution bore a duty of proving that the search at the Accused Person’s business premises and the seizure of devices therefrom were lawful and procedurally sound. The defence reiterated that searches of premises ordinarily require a search warrant unless strict statutory exceptions are met; therefore, the prosecution, having not met those statutory exceptions in this matter, the prosecution’s evidence on record ought to be rejected in its entirety. 57. PW1 testified that there was no need for a search warrant before searching the Accused Person’s premises in this matter since the Accused Person was dealing with suspected stolen property. PW4, on the other hand, testified that there was no need for a search warrant in this case, given that the charges herein were cognizable ofiences. 58. The general rule in this jurisdiction is that law enforcement oficers must obtain a search warrant before searching a suspect’s premises. This is in line with every person’s right to privacy guaranteed by Article 31 of the Constitution. 59. The foregoing informed the provisions of section 48 of the Act, which provides thus: 48. Search and seizure of stored computer data (1) Where a police oficer or an authorised person has reasonable grounds to believe that there may be in a specified computer system or part of it, computer data storage medium, program, data, that— (a) is reasonably required for the purpose of a criminal investigation or criminal proceedings which may be material as evidence; or (b) has been acquired by a person as a result of the commission of an ofience, the police oficer or the authorised person may apply to the court for issue of a warrant to enter any premises to access, search and similarly seize such data. (Emphasis added) 60. This court’s reading of the provisions of the law reproduced above reveals that the operative word in that section is ‘may’ in respect of the duty placed on the person conducting a search under the Act to obtain a search warrant. 61. The Court of Appeal in Peter Muturi Njuguna v Kenya Wildlife Service [2017] eKLR stated as follows on the construction of the word ‘may’ when interpreting a statute: “ 15. 62. The true construction therefore lies in the context. Ordinarily the word "may" is permissive and not mandatory but the contextual meaning would vary with the intention of the drafters…” The authority above shows that generally speaking, the word ‘may’ does not make the action contemplated mandatory, but the context in which the word ‘may’ is used may demand otherwise. This begs the question of whether, in the context of the Act, the word ‘may’ used in section 48 of the Act placed a mandatory duty on the person conducting a search under the Act to obtain a search warrant before any search. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 7

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63. To understand the context of the Act, one needs to appreciate the nature of the ofiences under the Act. Most of the serious ofiences under the Act, like the ones facing the Accused Person herein, are not ordinary ofiences. They are ofiences where, if law enforcement oficers do not take quick action to secure evidence on receiving intelligence that such ofiences under the Act are suspected of being committed, a suspect can easily get rid of the evidence. 64. This court takes the view that most of the ofiences under the Act, and particularly the ofiences facing the Accused Person under the Act, are like cognizable ofiences which require quick intervention by law enforcement oficers. Such searches without a search warrant are permitted by the law under section 25 of the Criminal Procedure Code and section 57 of the National Police Service Act. 65. Given the reasons above, this court finds and holds that the use of the word ‘may’ in section 48 of the Act permits law enforcement oficers to conduct searches under the Act without a search warrant if the circumstances of the Act permit. 66. This takes this court to the question of whether the circumstances of this case permitted the search without a search warrant. This question was answered by Chepkwony J in Republic v Ali & 2 others (Criminal Revision E055 of 2023) [2024] KEHC 10969 (KLR), as follows: Consequently, the court finds the trial court’s decision delivered on 21st February, 2023, was incorrect and erroneous as the admission of electronic evidence obtained without a warrant or court order would not render a trial unfair nor would it be detrimental to the administration of justice under Article 50(4) of the Constitution. Therefore, the admission of the electronic evidence obtained without a warrant is indeed proper in the circumstances of this case. Additionally, this Court is of the considered view that the following statutes and ofiences under them, may be included with the necessary safety valves in the list of justifiable exceptions to the exclusionary rule on illegally obtained evidence due to their significant impact on the general public safety and the national security interests of Kenya. They are as follows:- 67. a. Terrorism ofiences under the Prevention of Terrorism Act, 2021; b. Sexual ofiences under the Sexual Offences Act, 2006; c. Ofiences of Genocide, war crimes and crimes against humanity as captured under Section 137N of the Criminal Procedure Code, Cap 75 Laws of Kenya; d. Ofiences under the International Crimes Act, 2008; e. Ofiences under the Computer Misuse of Cybercrime Act, 2018, as specified in Gazette Notice No.1043; Special Issue, published on 31st January, 2022 relating to the Designation of Critical Infrastructure; f. Ofienses under the Proceeds of Crime and Anti-Money laundering Act, 2009; and g. Ofiences under the Prevention of Organised Crimes Act, 2010 with the necessary safety valves set out in this decision. (Emphasis added) The authority above leaves no doubt in this court’s mind that a search without a warrant is permitted under the Act when law enforcement oficers are investigating ofiences touching on systems or devices designated as critical infrastructure under the Act. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 8

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68. Gazette Notice No. 1043; Special Issue, published on 31st January, 2022, under the Act, relating to the Designation of Critical Infrastructure, lists systems and devices used in the telecommunications and financial sectors as critical infrastructure that must be jealously guarded for the well-being of Kenyans and the efiective running of government. 69. The Accused Person herein is charged with ofiences included unauthorized access and unlawful interference with the M-Kopa system. M-Kopa is a fintech company providing financial and telecommunication services in Kenya. It thus follows that the M-Kopa system and devices, being systems and devices used to provide financial and telecommunications services in Kenya, are critical infrastructure within the meaning of the Act. 70. Given the above, and guided by the holding in the Ali case (supra), the circumstances of this case and the nature of the ofiences under the Act facing the Accused Person permitted a search without a warrant. 71. Be that as it may, even if for a moment one imagines that this court is wrong on its finding above, it is imperative to note that the right to privacy under Article 31 of the Constitution is not one of those absolute rights protected under Article 25 of the Constitution. In appropriate circumstances, that right can be limited. Further, not all illegally obtained evidence is inadmissible in Kenya. 72. To buttress the point that not all illegally obtained evidence is inadmissible in Kenya, this court places reliance on Article 50 (4) of the Constitution, which provides as follows on the admissibility of illegally obtained evidence: “ Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice”. 73. A plain reading of Article 50(4) of the Constitution reproduced above acknowledges that, in appropriate circumstances, illegally obtained evidence is admissible. In the Ali case (supra), when the court was called upon to admit evidence obtained without a search warrant, the court stated as follows: 40. To make a case for the necessity of securing evidence without a warrant and the minimum adverse impact that such process would have on the fair trial and administration of justice, the Director of Public Prosecution has placed reliance on the concept or legal doctrine of inevitable discovery. This doctrine allows for the admission of illegally obtained evidence or evidence obtained without a warrant, as long as it can be demonstrated that the said evidence would have been discovered lawfully irregardless of the circumstances. The simple meaning of this legal doctrine can be answered by this question:“Whether the DPP sought or not, the fact is, it is highly likely that the same evidence would still have been inevitably discovered anyway”. 41. This doctrine is an exception to the exclusionary rule, as was demonstrated in the case of Nix –vs- Williams 467 U.S 131(1984), where the Supreme Court held that “the evidence obtained in violation of the Sixth Amendment was admissible because the victims’ bonding would have been found anyway”. 42. Although the notion and concept attributed to the legal doctrine of inevitable discovery may seem novel to the Kenyan Criminal Law, it had long been recognized in our jurisprudence albeit by difierent names. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 9

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74. The authority above shows that the doctrine of inevitable discovery is an exception to the exclusion rule in Article 50 (4) of the Constitution. 75. It is also imperative to note that the legal doctrine of inevitable discovery was recognized as early as 2004 by the Supreme Court in South Africa in interpreting section 35 (5) of their Constitution, which mirrors Article 50 (4) of our Constitution. 76. The above can be gleaned from S v Pillay 2004 (2) SACR 419 (SCA), where the Supreme Court in South Africa admitted evidence obtained without a search warrant by invoking the doctrine of inevitable discovery. 77. Applying the doctrine of inevitable discovery to the circumstances of this case, there is no doubt that the evidence obtained by the police oficers herein without a search warrant would still have been obtained with a search warrant. 78. Another exception to the exclusion rule in Article 50(4) of the Constitution is the doctrine of good faith, which was restated in United States v. Leon (1984), where the court invoked the said doctrine to balance the protection of individual rights with the need for efiective law enforcement. The said doctrine is an exception to the United States Constitution’s 4th Amendment, which can be likened to Article 31 of our Constitution. 79. The doctrine of good faith is grounded on the fact that the exclusionary rule under Article 50 (4) of the Constitution is meant to punish police misconduct, not where police oficers are acting in good faith. 80. Turning to the circumstances of this case, the police oficers visited the Accused Person’s business premises while acting on intelligence reports that the Accused Person was engaging in a crime. The police oficers did not break into the Accused Person’s premises; they were allowed ingress by the Accused Person. Further, the Accused Person actually cooperated with the police oficers and handed over the recoveries to the police oficers. 81. Clearly, given the foregoing, there is no evidence that police oficers in this matter were acting in bad faith when they searched the Accused Person’s business premises. The police oficers in this case were acting in good faith when they searched the Accused Person’s business premises. 82. Applying the legal doctrines of inevitable discovery and good faith as exceptions to the exclusion rule under Article 50 (4) of the Constitution to the facts of this case, this court finds and holds that the evidence obtained by the prosecution in this case without a search warrant is admissible; therefore, the failure by the police oficers to obtain a search warrant was not fatal to the prosecution’s case. Whether the chain of custody of the exhibits was compromised 83. The defence took issue with the signing of the inventory at the police station instead of the same being signed at the Accused Person’s premises. The defence also submitted that the prosecution ought to have availed witnesses, customers, or persons neighbouring the Accused Person’s business premises to corroborate that the exhibits herein were recovered from the Accused Person’s business premises. 84. In the circumstances, the defence took the position that the integrity and continuity of the exhibits’ chain of custody were gravely compromised. 85. The evidence led by PW1, PW3, and PW4 detailed how the devices recovered from the Accused Person’s premises were handled. Those devices were exclusively handled by the said prosecution witnesses, as evidenced by the exhibit memo on record. 86. Further, the Accused Person admitted that the recoveries were made from his business premises. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 10

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87. It is also noteworthy that PW3 stated that even though the devices recovered from the Accused Person’s business premises did not have tamper-proof seals, any access to those devices post-seizure from the Accused Person’s premises could be detected during his forensic examination since a hard drive and an operating system keep activity logs and keep time stamps of any access. PW3 did not, during forensic analysis, find any evidence of post-seizure access to the devices or programs recovered from the Accused Person’s business premises. 88. In the absence of expert evidence by the defence to controvert PW3’s expert evidence on the integrity of the exhibits forwarded to him by PW4 for forensic examination, this court finds no reason to disbelieve PW3’s expert evidence on the integrity of the exhibits recovered from the Accused Person and handed to him by PW4. 89. In addition to the above, given that the Accused Person admitted that the J tag, Pandora box, fiash disk, the Western Digital hard drive, and the WD hard drive herein were recovered from his business premises, it mattered not where the inventory herein was signed. Similarly, the prosecution was not required to call other witnesses to confirm the recovery of devices from the Accused Person’s business premises just to confirm what the Accused Person was not disputing. 90. The foregoing inclines this court to hold and find that the chain of custody of the exhibits herein was not broken at all from the point of search, throughout the investigations conducted, and up to the time the Accused Person was arraigned. Whether the prosecution proved the charges facing the Accused Person beyond reasonable doubt 91. This court will determine whether the prosecution proved count II and III beyond reasonable doubt before determining count I and IV, given that the determination in count II and III has a bearing on count I and IV. 92. The Accused Person faced a charge of unauthorized access contrary to section 14 (1) of the Act in count II. This ofience is set out in the following terms: 14. Unauthorised access (1) A person who causes, whether temporarily or permanently, a computer system to perform a function, by infringing security measures, with intent to gain access, and knowing such access is unauthorised, commits an ofience and is liable on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years, or to both. (2) Access by a person to a computer system is unauthorised if— (a) that person is not entitled to control access of the kind in question to the program or data; or (b) that person does not have consent from any person who is entitled to access the computer system through any function to the program or data. 93. The ingredients of this ofience are that the prosecution must prove beyond reasonable doubt that the Accused Person caused a computer system to perform a function temporarily or permanently by infringing security measures with an intention to gain access without authority. 94. The prosecution’s evidence was that the Accused Person unlawfully accessed M-Kopa communication systems in 136 mobile phones set out in the forensic reports produced herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 11

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95. The forensic report by PW3 shows that the Western Digital Hard Drive (H1) was used to access 56 devices listed in the list marked H1, HGST Hard Drive (L) was used to access 596 devices listed in the list marked L1, and Toshiba Hard Drive (R) was used to access 334 devices in the list marked R1. All the above devices, which were used to access the devices in the said lists, were recovered from the Accused Person. 96. PW2, who was tasked with identifying the M-Kopa devices from the list generated by PW3, confirmed through his reports on record that he identified 136 IMEIs belonging to M-Kopa devices from the IMEI lists generated by PW3. He added that the said 136 devices had stopped communicating with the M-Kopa system as a result of the M-Kopa system in those devices being tampered with. 97. PW2 added that all five M-Kopa phones forwarded to him by PW4 for analysis had been interfered with through factory reset, tampering with the hardware, and uninstallation of the M-Kopa application between 24th November 2023 and 25th May 2024 as evidenced by the analysis reports (Pexh. 6 – 8). 98. There is also no doubt that the Accused Person did not have any permission from M-Kopa to access their devices or systems during the period in question. 99. The Accused Person submitted that there was no forensic trail or records directly linking him to access and interference with the M-Kopa system. 100. Indeed, the only evidence on record linking the Accused Person to the ofience of unlawfully accessing the M-Kopa system is the forensic reports on record linking the devices accessed from the Accused Person’s business premises with the unlawful access to the M-Kopa system. This is by and large circumstantial evidence. 101. The Court of Appeal set out the parameters to be met in the application of circumstantial evidence in securing a conviction in Abanga Alias Onyango vs. Republic CR. App No. 32 of 1990 (UR) as follows: “ it is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: 102. a. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, b. Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused, c. the circumstance taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human possibility the crime was committed by the accused and no one else.’’ In Sawe vs. Republic [2003] KLR 364, the Court of Appeal reiterated that to justify a conviction on circumstantial evidence, “ …the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co - existing circumstance weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden which never shifts to the accused." 103. Having regard to the principles above, did the prosecution’s evidence meet the threshold? https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 12

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104. There is no evidence on record that the Accused Person was working in his premises alongside any other person during the period in question. If any other person was working with the Accused Person during the said period, section 111 of the Evidence Act placed on the Accused Person the evidential burden of disclosing such information. The Accused Person did not discharge that evidential burden. 105. In the absence of such evidence, the circumstances of this case, when taken cumulatively, form a chain so complete that there is no escape from the conclusion that within all human possibility the Accused Person and no one else used the devices recovered from his premises to access the M-Kopa system and devices without authority. 106. It is against this backdrop that this court finds that the prosecution proved count II beyond reasonable doubt. 107. In count III, the Accused Person faced a charge of unauthorized interference contrary to section 16 (1) of the Act. Section 16 (1) of the Act provides thus: 16. Unauthorised interference (1) A person who intentionally and without authorisation does any act which causes an unauthorised interference to a computer system, program or data, commits an ofience and is liable on conviction, to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding five years, or to both. 108. The Act defines interference as any impairment to the confidentiality, integrity, or availability of a computer system, or any program or data on a computer system, or any act in relation to the computer system which impairs the operation of the computer system, program, or data. 109. The evidence by PW2 was that the Accused Person’s actions in count II caused 136 M-Kopa devices to stop communicating with the M-Kopa system. The M-Kopa Fault Analysis Report (Pexh.8) corroborated PW2’s testimony that the Accused Person’s actions prevented the identified M-Kopa devices from communicating with the M-Kopa system. 110. The said devices could only stop communicating with the M-Kopa system after interference with the M-Kopa system. The evidence on record shows that the devices stopped communicating with the MKopa system during the period in question while in the Accused Person’s exclusive custody. 111. Further, it is noteworthy that the Accused Person did not have any authority to interfere with the MKopa system at the time he interfered with the said system. 112. The reasoning above in count II on the application of circumstantial evidence to identify the Accused Person as the perpetrator in this count also applies here. 113. Given the analysis above, this court finds that the prosecution proved count III beyond reasonable doubt. 114. Count I on unlawful possession of devices and access codes is set out under section 18 (1) of the Act as follows: (1) A person who knowingly manufactures, adapts, sells, procures for use, imports, ofiers to supply, distributes or otherwise makes available a device, program, computer password, access code or similar data designed or adapted primarily for the purpose of committing any ofience under this Part, commits an ofience and is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 13

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115. For the prosecution to secure a conviction in this count, the prosecution must prove beyond reasonable doubt that the Accused Person procured a device or an access code for the commission of an ofience under the Act. 116. The Accused Person admitted that the hard drives and the disks set out in count I were recovered from his business premises. 117. It is given that the said hard drives and devices are ordinarily used in mobile phone repair. It is also common ground that the Accused Person is a mobile phone repair. Further, there is no law in Kenya disallowing possession of the said devices by a person. 118. Possession of the said devices only becomes an ofience under section 18 (1) of the Act when the devices are used in committing an ofience under the Act. This begs the question of whether the Accused Person committed an ofience under the Act with the devices listed in count I. 119. The expert reports by PW2 and PW3 showed that the devices in count I were used by the Accused Person to reprogram M-Kopa devices. This court has already made a finding that the Accused Person committed the ofiences in count II and count III. Those ofiences were committed by the Accused Person using the devices and listed in count I. 120. The upshot of the above is that the Accused Person procured the devices and listed in count I for the commission of ofiences under the Act, and thereby committing an ofience under section 18 (1) of the Act. 121. For count IV, the prosecution was obligated to prove that the Accused Person procured the devices listed therein with an intention to commit a crime under the Act. 122. It is also not disputed that the devices listed under this charge can be lawfully procured and owned by the Accused Person, who is a phone repair. 123. It only becomes an ofience under section 18 (2) of the Act, where a person procures those devices with an intention to commit a crime under the Act. 124. The forensic report by PW3 revealed that the devices in count IV are used for fiashing and reprogramming mobile devices. The expert report by PW2, on the other hand, revealed that the MKopa mobile phones recovered from the Accused Person’s business, as well as the 156 devices he had identified from the list generated by PW3 had been illegally reprogrammed while in the Accused Person’s custody. 125. The Accused Persons could only have illegally reprogrammed the mobile phones analyzed and identified by PW2 using the devices listed in count IV. 126. This court having already made a finding that the Accused Person illegally reprogrammed M-Kopa devices using the devices in count IV, this court is inclined to find that the Accused Person procured the devices listed in count IV with the intention of not only using the same for mobile phone repair but also for illegal reprogramming of mobile phones. 127. It is against this backdrop that this court finds and holds that the prosecution proved count IV beyond reasonable doubt. 128. Lastly, in Count V, the Accused Person faced a charge of being in possession of suspected stolen property contrary to section 323 as read with section 36 of the Penal Code. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 14

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129. Section 323 of the Penal Code provides:Any person who has been detained as a result of the exercise of the powers conferred by Section 26 of the Criminal Procedure code and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour. 130. In Chege vs R [1983] KLR 425, the learned Judge emphasized that:Under Section 323 of the Penal Code, it is not suficient that the charged person was merely in possession or was conveying in any manner anything which might reasonably be suspected of having been stolen or unlawfully obtained. He would be guilty if in addition, he admits to these facts and fails to give an account to the satisfaction of the court of how he came by the property so suspected. (Koech vs Republic [1968] EA 109). 131. In Kipsaina vs R [1975] KLR 253, the Court of Appeal for East Africa (Law Ag., P. Musoke J.A and Trevelyan J.) held that:A charge of receiving stolen property is not established if the explanation given by the accused is reasonable and might possibly be true if the court is not convinced that it is true. From the above it is evident that the trial court is required to consider the explanation by the accused and if the explanation is reasonable, acquit the accused even though the court doubts its truthfulness as it is the duty of the prosecution at all times to prove the guilt of the accused beyond reasonable doubt 132. The above shows that the Accused Person can only be convicted for the ofience under section 323 of the Act where the Accused Person, having been found with property reasonably suspected to have been stolen, fails to give the court a satisfactory account of how he got into possession of the property. 133. The evidence by PW2 revealed that the five (5) M-Kopa phones in count V; Samsung A03 S/No. 350230230828310, Nokia C31 S/No. 358491281695539, Nokia C32 S/No. 355321870073385, Nokia C30 S/No. 350804636964265, and Nokia C32 S/No. 355321876358400, recovered from the Accused Person’s business premises belonged to M-Kopa. 134. Further, that evidence revealed that the said M-Kopa mobile phones had stopped communicating with the M-Kopa system through illegal reprogramming. The reprogramming of the devices was meant to permanently deprive M-Kopa of their property. This was clear evidence that the five M-Kopa devices in count V had been stolen from M-Kopa. 135. The evidence above actually disclosed an ofience of stealing contrary to section 268 of the Penal Code or the ofience of handling stolen property contrary to section 322 of the Penal Code against the Accused Person which ofiences are more serious than the ofience in count V. The Accused Person’s saving grace is that section 179 of the Criminal Procedure Code only permits the court to convict an Accused Person for a minor ofience related to the one he was charged with. 136. The Accused Person submitted that the failure by the prosecution to call the complainant’s or the owners of the suspected stolen phones recovered from his business premises was fatal to the prosecution’s case in count V. 137. The evidence on record shows otherwise. PW2 testified on behalf of M-Kopa, who were the owners of the five stolen M-Kopa mobile phones recovered from the Accused Person’s business premises. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 15

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Further, PW4 testified that one of the phones recovered from the Accused Person’s business premises had been reported stolen at Bungoma Police Station vide OB. No. 17/13/03/2024. The defence did not dislodge this evidence. 138. The foregoing proved beyond reasonable doubt that at least six of the thirteen mobile phones recovered from the Accused Person’s business premises were not only suspected stolen mobile phones but also stolen mobile phones. 139. On whether the Accused Person gave a reasonable explanation on how he got into possession of the stolen phones, the Accused Person stated that he got into possession of those mobile phones in the ordinary course of his mobile phone repair work. He also called DW2 who testified that he had taken one of his M-Kopa phones to the Accused Person for repair. Interestingly, DW2 could not identify the M-Kopa phone he gave the Accused Person for repair or prove the ownership of the ownership of any M-Kopa phone recovered from the Accused Person’s business premises. 140. If at all the Accused Person got into possession of the phones recovered from his business premises in the ordinary course of his phone repair business, he would not have illegally reprogrammed some of those phones. 141. Clearly, the prosecution’s evidence displaced the Accused Person’s explanation on how he got into possession of the phones in question. That explanation, therefore, is dismissed in its entirety for failing to meet the threshold of a reasonable explanation contemplated as a defence for the ofience (count V) herein. Accused Person’s Defence 142. This court, as evidenced by the analysis above, has given due regard to the Accused Person’s defence. The Accused Person’s defence was a mere denial, which did not cast any reasonable doubt on the prosecution’s case. The same is dismissed in its entirety. Determination 143. The upshot of the foregoing is that the Accused Person is convicted under section 215 of the Criminal Procedure Code of all the charges herein. 144. Judgment accordingly. JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 11TH DAY OF FEBRUARY 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Maroro for the state Mr. Anyona for the Accused Person Accused Person C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/694/eng@2026-02-11 16

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