https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10517

Owange v Republic (Criminal Appeal E002 of 2025) [2026] KEHC 10517 (KLR) (15 July 2026) (Judgment) Neutral citation: [2026] KEHC 10517 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E002 of 2025 AM Hassan, J July 15, 2026 Between Evans Otieno Owange Appellant and The Republic Respondent (Being an Appeal from the Judgment and Order of the learned trial Magistrate Hon. E.N. Mwenda (PM) on the 15th January 2025, in Kisumu Magistrate’s Court Criminal Case No. E009 of 2022) Judgment A. Brief Facts Of The Case/ Introduction 1.This is an Appeal from the Judgment by the learned magistrate, Hon. E.N. Mwenda (PM) on 15th January, 2025 in Kisumu Chief Magistrate’s Court Criminal Case No. E009 of 2022: Republic vs. Evans Otieno Owange. 2.The Accused/Appellant herein was charged with seven counts. First, Assault Causing actual bodily harm contrary to Section 251 of the Penal Code. The particulars are that on the 1st day of January at Kisumu CBD area in Kisumu Central Sub- County with Kisumu County he assaulted Collins Ouma Odhiambo, thereby occasioning him bodily harm. 3.Second, he was charged with Vandalism of Energy Installation and Infrastructure contrary to Section 169 (1) (b) of the Energy Act. The particulars are that on an unknown date in 2021, at Nyamasaria area in Kisumu East Sub County within Kisumu County, he was found in possession of meter serial number 54500376667 the property of Kenya Power and Lightning Company Limited (KPLC), the Licensor. 4.Third, he was charged with unauthorized installation of electrical apparatus contrary to section 168 (1) (c) of the Energy Act. The facts are, on an unknown date in 2021, at Baba Yawo Bar Area in Kisumu Central Sub County Kisumu County without lawful Authority the accused person installed one pre-paid meter serial number 54500376667 and connected it or permitted it to be connected with any electric supply line through which electrical energy is applied without the consent of KPLC the licensor. 5.Fourth, the accused person was charged with carrying out electricity undertaking installation works without authority. Contrary to section 118 of the Energy Act. The particulars are, on an unknown dated 2021 at Baba Yawo Bar in Kisumu Central Sub Country within Kisumu County the accused person did while in possession of one prepaid meter serial number 54500376667 carry out electricity undertaking by installing the said meter without consent of KPLC the Licensor. 6.Fifth, the accused was charged with vandalism of energy installation and infrastructure contrary to section 169 (1) (b) of the Energy Act. The particulars are, on 1st January 2022 at Nyamasaria area in Kisumu East Sub County within Kisumu County, jointly with others not before court, vandalized energy installation one prepaid meter serial number 54500376733 the property of KPLC the Licensor. 7.Sixth, the accused was charged with unauthorized installation of electrical apparatus contrary to section 168 (1) (c) of the Energy Act. The particulars are that, on the 1st day of January 2022 at Baba Yawo Bar in Kisumu Central Sub County within Kisumu County without lawful authority installed one pre-paid meter serial number 54500376733 and connected it or permitted it to be connected with any electric supply line through which electrical energy is applied without the consent of KPLC the licensor. 8.Seventh, the accused was charged with carrying out electricity undertaking installation works without authority contrary to section 118 of the Energy Act. The particulars are, on 1st day of January 2022, at Baba Yawo Bar in Kisumu Central Sub County within Kisumu County the accused person did, while in possession of one prepaid meter serial number 54500376733, carry out electricity undertaking by installing the said meter without consent of KPLC, the Licensor. 9.After, the accused entered a plea of not guilty, he was released on a bond of Kshs. 400,000 with surety of a similar amount. The Prosecution called 5 witnesses and the defense called 3 witnesses. 10.After the trial, the court carefully considered the evidence on record and the submissions from both parties, pronounced itself as follows, “on Count 1, the accused person is hereby acquitted under section 215 of the Criminal Procedure Code on the charged offence of assault causing actual bodily harm contrary to section 251 of the penal Code; On Count 2, the accused person is hereby acquitted under section 215 of the Criminal Procedure Code on the charged offence vandalism of energy Installation and infrastructure contrary to section 169 (1) (b) of the Energy Act; On Count 4, the accused person is hereby acquitted under section 215 of the Criminal Procedure Code on the charged offence carrying out electricity undertaking installation works without authority contrary to section 118 of the Energy Act; On Count 5 the accuse4d person is hereby acquitted under section 215 of the Criminal Procedure Code on the charged offence vandalism of energy installation and infrastructure contrary to section 169 (1) (b) of the Energy Act; and on Count 7, the accused person is hereby acquitted under section 215 of the Criminal Procedure Code on the charged offence carrying out electricity undertaking installation works without authority contrary to section 118 of the Energy Act.” 11.The conviction “on Count 3, the accused person is convicted under section 215 of the Criminal Procedure Code on the charged offence unauthorized installation of electrical apparatus contrary to section 168 (1) (C) of Energy Act; on Count 6 the accused person was convicted under section 215 of the Criminal Procedure Code on the charged of offence unauthorized installation of electrical apparatus contrary to section 168 (1) (C) of the Energy Act. 12.Upon conviction, the Appellant was sentenced pursuant to section 118 of the Energy Act. In Count III, he was sentenced to a fine of Kshs. 500,000/= and six (6) months imprisonments. In Count VI, he was likewise sentenced to a fine of Kshs. 500,000/= and six (6) months imprisonment. The trial court directed that the sentences run consecutively. 13.The Accused, being dissatisfied with the outcome in the trial court, filed a Petition of Appeal dated 27th January, 2025. The Appellant raised the following grounds;1.That the learned magistrate erred in law and fact by convicting the appellant where there was no evidence tendered showing his involvement in the installation of the pre-paid meters.2.That the learned magistrate erred in law and in fact by convicting the appellant where there was no evidence tendered showing his involvement in the installation of the pre-paid meters3.The learned magistrate erred in both law and fact by neglecting to consider the validity of the appellant’s defense who as a layman, maintained that the electrical installation was conducted following the advice of a licensed electrician, who presented himself as an official of the licensor, KPLC.4.That the learned magistrate failed to appreciate the law and facts to the case thus arriving at an erroneous decision in the circumstances.5.That the learned magistrate erred in law and in fact by issuing the appellant with a sentence that is manifestly excessive and harsh in the circumstances. 14.This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. B. Submissions By Both PartieS Appellants Submissions 15.The Appellant submitted that the he was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code; two counts of vandalism of energy installation and infrastructure contrary to section 169(1) (b) of the Energy Act No.1 of 2019; two counts of unauthorized installation of electrical apparatus, contrary to section 168(1)(c) of the Energy Act No.1 of 2019 and two counts of carrying out electricity undertaking installation work without authority contrary to section 118 of the Energy Act. 16.At the conclusion of the trial, the Appellant was convicted on count 3 and count 6, both relating to the offence of unauthorized installation of electrical apparatus under section 68(1) (c) of the Energy Act, and sentenced to pay a fine of Kshs. 500,000/= and 6 months imprisonment on each count and the sentences were to run consecutively. 17.The Appellant submitted on whether the prosecution proved the offence of unauthorized installation of electrical apparatus contrary to section 168 (1) (C) of Energy Act beyond reasonable doubt. The Appellant submitted that the prosecution failed to prove beyond reasonable doubt that he committed the offence of unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act. The Appellant contended that, for the conviction to stand, the prosecution was required to prove not only that the installation occurred without the consent of the licensor, Kenya Power and Lighting Company, but also that the Appellant knowingly installed or permitted the installation. 18.The Appellant argued that the charge was founded solely on the fact that he owned Baba Yao Bar where the prepaid meters were found. It was submitted that the prosecution's case rested entirely on circumstantial evidence, as no witness testified to having seen the Appellant install the meters or direct their installation. 19.The Appellant further submitted that none of the prosecution witnesses placed the Appellant at the scene of the alleged installation. PW1 admitted that he did not witness who installed the prepaid meters and only learnt from a guard that the installer had been brought by the owner of Baba Yao Bar. PW1 also conceded that the alleged installer was never called to testify, rendering his evidence hearsay and of no probative value. The Appellant relied on Republic v Kasila [2025] KEHC 2438 (KLR) to argue that circumstantial evidence must be reliable, directly connected to the case, and not based on hearsay before it can sustain a conviction. 20.The Appellant also contended that PW5 similarly admitted that he did not witness the Appellant install the meters and had no independent witness linking him to the installation. He argued that PW5's conclusion was based on an assumption that the Appellant removed the meters from his residence and installed them at Baba Yao Bar, yet no documentary evidence, technical reports, or witness testimony was produced to support that assumption. Relying on Joan Chebichii Sawe v Republic [2003] eKLR, the Appellant submitted that suspicion, however strong, cannot form the basis of a criminal conviction. 21.The Appellant further submitted that the defence presented a plausible explanation for the movement and installation of the prepaid meters. DW2 testified that the meters were registered in her name, that they had initially been connected to her residential premises, and that they were transferred to Baba Yao Bar after an electrician known as Walter, who presented himself as an employee or agent of Kenya Power, advised that the transfer could be done. DW2 also testified that neither she nor the Appellant installed the meters themselves. 22.The Appellant argued that, Walter was the central figure in the installation process, yet the prosecution neither called him as a witness nor investigated whether he acted with or without the authority of Kenya Power. The Appellant submitted that the prosecution also failed to challenge the defence evidence regarding Walter's role. Citing Bukenya v Uganda [1972] EA 549, the Appellant argued that the failure to call such a material witness entitled the court to draw an adverse inference against the prosecution. 23.The Appellant maintained that both he and DW2 were laypersons without technical expertise in electrical installations and relied in good faith on the advice and services of Walter, whom they believed to be an authorized Kenya Power employee. They therefore argued that they neither personally installed the meters nor knowingly permitted an unlawful installation. 24.Lastly, the Appellant submitted that criminal liability under section 168(1)(c) of the Energy Act is not automatic merely because an unauthorized installation occurred. The prosecution was required to prove both the prohibited act and the requisite guilty mind. Relying on section 107 of the Evidence Act, Woolmington v DPP [1935]AC 462, and Muthini v Republic (Criminal Appeal 15 of 2023) [2024] KEHC 2182 (KLR) (22 February 2024 Judgment), the Appellant argued that the prosecution failed to prove knowledge or intent beyond reasonable doubt and that the evidence raised reasonable doubt which ought to have been resolved in his favour. Consequently, the conviction on counts 3 and 6 was said to be unsafe and liable to be quashed. 24.The Appellant raised the question of whether the sentence being imposed was excessive and harsh in the circumstances. The Appellant submitted that the sentence imposed, being a fine of Kshs. 500,000/= and six months imprisonments on counts 3 and 6, was excessive and harsh in the circumstances. He argued that the trial court failed to properly exercise its sentencing discretion by overlooking the material mitigating factors placed before it. 25.The Appellant further submitted that he was a first offender, had expressed genuine remorse for the offence, and had fully cooperated with the authorities upon his arrest and throughout the investigations. He also contended that the evidence showed that he had acted in good faith by relying on the advice of a person he reasonably believed to be a qualified professional and an agent of the licensee. He had neither personally carried out the installation nor willfully caused or directed the relocation of the prepaid meters. 26.The Appellant relied on section 354 (3) (b) of the Criminal Procedure Code, which empowers the appellate court to alter, reduce, or vary the nature of a sentence on appeal. He further submitted that the sentence imposed did not reflect his personal circumstances or the nature of his involvement in the offence and was therefore excessive and harsh, warranting the intervention of the appellate court. Accordingly, he prayed that the appeal be allowed. Respondent’s Submissions 27.The Respondent submitted that the prosecution proved its case against the Appellant beyond reasonable doubt. It was argued that there were no material inconsistencies in the prosecution's evidence and that, as a first appellate court, the court had a duty to re-evaluate the evidence and reach its own independent conclusion. 28.The Respondent relied on section 168(1)(c) of the Energy Act, No. 1 of 2019, which criminalizes laying, erecting, installing or permitting the installation of any conductor or apparatus connected to an electric supply line through which electricity supplied by a licensee passes, without the licensee's consent. It was submitted that the evidence established that the Appellant, as the owner of Baba Yao Club, admitted ownership of the premises where the illegal electricity installation was found. This evidence was corroborated by DW2, the Appellant's wife, who confirmed that the electricity meters were registered in her name and that she had authorized one Walter to install them at the club. 29.The Respondent further submitted that the evidence of PW1 and PW5 demonstrated that KPLC had not authorized the installation of the two recovered electricity meters. Consequently, the Appellant was found to have carried out an unlawful electricity installation contrary to the Energy Act. 30.On whether the sentence imposed was harsh, the Respondent argued that sentencing is a matter of judicial discretion exercised in accordance with the law and the Judiciary Sentencing Policy. It was submitted that section 168(1)(c) of the Energy Act prescribes a penalty of a fine of not less than Kshs. 1,000,000/= imprisonment for a term of not less than one year, or both. The trial court was said to have considered the Appellant's mitigation, the seriousness of the offence, and nonetheless imposed a fine of Kshs. 500,000/= and six-months’ imprisonment on Counts III and VI, which was more lenient than the statutory minimum. The Respondent therefore urged the court not to interfere with the sentence. 31.In conclusion, the Respondent submitted that the appeal lacked merit and prayed that it be dismissed, with both the conviction and sentence being upheld. C. Issues For Determinationi.Whether the prosecution proved the offences of unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act beyond reasonable doubt, thereby justifying the Appellant's conviction on Counts III and VI.ii.Whether the sentence imposed on the Appellant was lawful, excessive, or harsh in the circumstances, and whether this court ought to interfere with it. D. Analysis On The Issues For Determination Issue 1: Whether the Prosecution proved the offences of unauthorized installation of electrical apparatus contrary to section 168 (1) (c) of the Energy Act Beyond Reasonable doubt 32.The Appellant submitted that the prosecution failed to prove the offences of unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act beyond reasonable doubt. He argued that no prosecution witness testified to having seen him install or direct the installation of the prepaid electricity meters and that the conviction was founded entirely on circumstantial evidence and hearsay. He further contended that the prosecution failed to call Walter, the electrician who allegedly carried out the installation after presenting himself as a Kenya Power official, thereby leaving a material gap in the prosecution's case. The Appellant maintained that he merely relied in good faith on a person whom he believed to be duly authorized and that the prosecution failed to establish the requisite knowledge or intention necessary to sustain a conviction. 33.The Respondent opposed the appeal and submitted that the prosecution proved all the ingredients of the offence beyond reasonable doubt. It was argued that the evidence established that the Appellant owned Baba Yao Bar where the unauthorized electricity installations were discovered and that DW2 admitted that the electricity meters were registered in her name and had been relocated to the premises with her authority. The Respondent further submitted that PW1 and PW5 confirmed that Kenya Power had not authorized the installation of the meters and that the trial court properly convicted the Appellant on Counts III and VI. 34.As the first appellate court, this court is duty-bound to reconsider and re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This obligation was settled in Okeno v Republic [1972] EA 32. 35.The Appellant was convicted under section 168(1)(c) of the Energy Act, which prohibits any person from installing or permitting the installation of any electrical conductor or apparatus connected to an electric supply line through which electricity supplied by a licensee passes without the consent of the licensee. The prosecution was therefore required to establish beyond reasonable doubt that the apparatus was installed or connected to the licensee's electricity supply without authorization and that the Appellant either carried out the installation himself or knowingly permitted it. 36.From the evidence on record, there is no contest that the prepaid electricity meters bearing serial numbers 54500376667 and 54500376733 were found installed at Baba Yao Bar and that Kenya Power had neither authorized nor sanctioned their installation. Indeed, both PW1 and PW5 testified that the installations were irregular, while the defence acknowledged that the meters had been transferred from a residential premises to the business premises. To that extent, this court is satisfied that the prosecution established that the installations were unauthorized. 37.The real question, however, is whether the prosecution proved beyond reasonable doubt that it was the Appellant who installed the electrical apparatus or knowingly permitted the unlawful installation. The burden of proving every essential element of a criminal charge rests squarely upon the prosecution throughout the trial and never shifts to an accused person. This principle has long been recognized in our criminal jurisprudence and was reaffirmed by the Court of Appeal in Miller v Minister of Pensions [1947] 2 All ER 372, where the court explained that proof beyond reasonable doubt does not require absolute certainty but must attain such a high degree of probability as to leave no reasonable doubt as to the accused's guilt. 38.Upon independently reviewing the record, this court observes that none of the prosecution witnesses testified that they saw the Appellant physically install either of the prepaid meters or instruct any person to do so. PW1 expressly admitted that he did not witness the installation and merely stated that he had been informed by a security guard that the installer had allegedly been brought by the owner of Baba Yao Bar. The security guard, however, was never called to testify. Likewise, PW5 conceded that he did not witness the installation and merely inferred that the Appellant was responsible because the meters were recovered from premises associated with him. 39.The prosecution case was therefore founded entirely upon circumstantial evidence. The law is settled that circumstantial evidence may sustain a conviction only where the chain of circumstances is so complete that it irresistibly points to the guilt of the accused and excludes any other reasonable hypothesis consistent with innocence. In Abanga alias Onyango v Republic Criminal Appeal No. 32 of 1990, the Court of Appeal held that before drawing an inference of guilt from circumstantial evidence, the court must be satisfied that the circumstances are firmly established, point unerringly to the accused, and form a complete chain leaving no reasonable possibility that the offence was committed by another person. 40.In the present case, the fact that the Appellant owned or occupied Baba Yao Bar undoubtedly constituted an incriminating circumstance. However, ownership or occupation of premises where an unlawful installation is discovered cannot, without more, establish criminal responsibility under section 168(1)(c) of the Energy Act. The prosecution was required to adduce evidence connecting the Appellant to the actual installation or demonstrating that he knowingly authorized or permitted the unlawful connection. 41.The defence advanced the explanation that the electricity meters had initially been installed at DW2's residence before being relocated to Baba Yao Bar by an electrician known as Walter, who allegedly presented himself as an employee or agent of Kenya Power. DW2 maintained that neither she nor the Appellant possessed the technical expertise to undertake electrical installation works and that they relied entirely upon Walter's professional representations. Although the trial court was entitled to scrutinize that explanation carefully, the prosecution equally bore the obligation of disproving it where it raised a reasonable possibility consistent with innocence. 42.Significantly, neither Walter nor the security guard who allegedly linked the Appellant to the installation was called as a witness. Their evidence would have been directly relevant to establishing who carried out the installation and whether the Appellant authorized it. While the prosecution is not required to call a superfluity of witnesses, section 143 of the Evidence Act does not relieve it of the obligation to call witnesses whose evidence is essential to establish the truth of the matter in issue. The omission to call these witnesses left an evidential gap that was never satisfactorily filled by the remaining prosecution evidence. 43.This court is mindful that section 168(1)(c) of the Energy Act extends criminal liability not only to the person who physically installs the apparatus but also to one who permits such installation. Nevertheless, proof that an accused permitted an unlawful installation cannot be inferred solely from ownership of the premises where the installation is found. There must be cogent evidence demonstrating knowledge, authorization or participation in the prohibited conduct. Such evidence was lacking in the present case. 44.Having re-evaluated the entirety of the evidence, this court finds that although the prosecution proved the existence of unauthorized electrical installations at Baba Yao Bar, it did not establish beyond reasonable doubt that the Appellant personally installed the prepaid meters or knowingly permitted their unlawful installation. The prosecution's case rested upon inference rather than direct proof, relied in part on hearsay evidence, and left material questions unanswered following the failure to call witnesses central to the transaction. Those deficiencies created reasonable doubt which ought to have been resolved in favor of the Appellant. 45.In the premises, this court finds that the prosecution failed to discharge the burden of proof required in criminal proceedings. Consequently, the convictions entered against the Appellant on Counts III and VI for the offence of unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act are unsustainable in law and are hereby set aside. Issue 2: Whether the sentence imposed on the Appellant was lawful, excessive, or harsh in the circumstances, and whether this court ought to interfere with it. 46.The Appellant submitted that the sentence imposed by the trial court was excessive and harsh. He argued that the trial court failed to accord sufficient weight to his mitigation, particularly that he was a first offender, had cooperated with the investigating authorities, expressed remorse, and had acted in the genuine belief that the installation had been undertaken by an authorized Kenya Power technician. He therefore urged this court to exercise its powers under section 354(3)(b) of the Criminal Procedure Code and interfere with the sentence. 47.The Respondent submitted that sentencing is a matter resting within the discretion of the trial court. It was argued that the trial court considered the Appellant's mitigation before imposing a sentence which was, in fact, more lenient than that prescribed under section 168(1)(c) of the Energy Act. The Respondent therefore urged the court not to interfere with the sentence. 48.The principles upon which an appellate court may interfere with sentence are well settled. An appellate court will only interfere where it is shown that the trial court acted upon wrong principles, overlooked material factors, considered irrelevant matters, imposed an illegal sentence, or where the sentence is manifestly excessive or manifestly inadequate. This principle was stated in Bernard Kimani Gacheru v Republic [2002] eKLR. 49.Having found under the first issue that the convictions on Counts III and VI cannot stand, it follows that the sentences imposed in respect of those convictions cannot be sustained. The sentences must therefore be set aside. 50.Section 168(1)(c) of the Energy Act prescribes a minimum penalty of a fine of Kshs. 1,000,000/= or imprisonment for a term of not less than one year, or both. The trial court imposed a fine of Kshs. 500,000/= and, in default, six months' imprisonment on each count, which was below the statutory minimum. Nevertheless, the issue of the legality of the sentence therefore does not arise for determination, having found that the convictions cannot stand. 51.Accordingly, the convictions on Counts III and VI are hereby quashed and the sentences imposed thereon are set aside. E. Disposition 52.Upon a careful re-evaluation of the entire evidence on record, I find that although the prosecution established that the electricity meters installed at Baba Yao Bar were unauthorized, it failed to prove beyond reasonable doubt that the Appellant personally installed the electrical apparatus or knowingly permitted the unlawful installation. The prosecution's case rested largely on inference and hearsay, and the failure to call material witnesses left significant gaps in the evidence. The learned trial magistrate therefore erred in finding that the prosecution had proved the offences under section 168(1)(c) of the Energy Act beyond reasonable doubt. 53.In the present case, while the prosecution proved the existence of unauthorized electrical installations, it failed to establish the essential element linking the Appellant to the commission of the offences. The evidence did not meet the requisite legal threshold to sustain criminal liability under section 168(1)(c) of the Energy Act. Consequently, the convictions on Counts III and VI cannot be sustained and thus are quashed. 54.In the circumstances:-a.I find merit in the appeal.b.The convictions entered against the Appellant on Counts III and VI are hereby quashedc.The sentence imposed thereon are set aside.d.The Appellant is hereby released forthwith unless he is otherwise lawfully held. It is so ordered. SIGNED BY/FOR:TH E JUDICIAR Y O F KENY A HON. JUSTICE ABDI M. HASSANKisumu High CourtHigh Court Criminal Date: 2026-07-15 11:54:31