https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8452

Gitau & 4 others v Republic (Criminal Appeal E035 of 2024) [2026] KEHC 8452 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEHC 8452 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E035 of 2024 FR Olel, J June 8, 2026 Between Simon Gitau 1st Appellant Edward Kamau 2nd Appellant Ezekiel Nambale 3rd Appellant Abdi Isacko Mamo 4th Appellant Tony Halake 5th Appellant and Republic Respondent (Being an appeal against both conviction and sentence arising from Marsabit SPMCR No E362 of 2021 delivered by Hon S.K. Arome (PM) on 14{{^th}} October 2024) Judgment A. Introduction 1.All the Appellants were charged with the offence of conspiracy to commit a felony contrary to Section 393 of the penal Code, Cap 63 laws of Kenya. The particulars were that; On diverse dates between 1st January, 2018 and 10th June 2021 at Marsabit Total petrol station in Marsabit Central sub county, jointly with others not before this court conspired together to commit a felony namely stealing by servant, stole Kshs.29,261,060/= the property of Total Marsabit Petrol station limited. 2.On count two, the 4th Appellant, Abdi Isako Mamo was charged with the offence of stealing by servant contrary to section 281 of the Penal code. The particulars were that on diverse dated between 1st January 2018 and 10th January, 2021 at Marsabit town Total Petrol station in Marsabit central sub county within Marsabit town, being an employee of Total Marsabit service station stole cash Kshs.8,031,431/= the property of Total Marsabit service station which came into his possession by virtue of his employment. 3.On count three, the 3rd Appellant, Ezekiel Nambale was charged with the offence of stealing by servant contrary to section 281 of the Penal code. The particulars were that on diverse dated between 4th December, 2019 and 5th May, 2021 at Marsabit town Total Petrol station in Marsabit central sub county within Marsabit town, being an employee of Total Marsabit service station stole cash Kshs.2,782,385/= the property of Total Marsabit service station which came into his possession by virtue of his employment. 4.Finally, on count four, the 5th Appellant, Tony Halake was charged with the offence of stealing by servant contrary to section 281 of the Penal code. The particulars were that on diverse dated between 1st January 2018 and 4th June, 2021 at Marsabit town Total Petrol station in Marsabit central sub county within Marsabit town, being an employee of Total Marsabit service station stole cash Kshs.907,090/= the property of Total Marsabit service station which came into his possession by virtue of his employment. 5.The Appellants took plea and denied the charges faced. On full trial, the trial magistrate upon considering the evidence adduced by both parties and the subsequent submissions filed did find all the appellant’s guilty of the offence of they were charged with. After mitigation, the trial court proceeded to convict them and sentenced them to pay a fine of Kshs.500,000/= each and in default to serve two (2) years' imprisonment. B. Evidence At Trial 6.PW1 Abdulhakim Omari Salim, confirmed that he was a director and the owner of the company that ran Total petrol station situated within Marsabit town. In early 2020 he realised that the sale returns were dwindling and that the said petrol station was struggling to refill/refuel itself. He inquired from the 1st and 2nd appellant who were the station manager and accountant respectively and they did inform him that the deficit had occurred due to uncollected debt. Despite his best efforts to steady the ship, the financial strain continued until the end of the said year. 7.At the beginning of 2021, he instructed his brother (PW3) to oversee recovery of the debt owed and to supervise the running of the station. He too noted that there were shortcomings between the returns given by the pump attendant manager and accountant respectively as the same were not tallying. He also noted the same from daily returns sent to the petrol stations WhatsApp group and when he visited the station, he did discover that some of the daily reconciliation reports were missing and the explanation given by the 1st and 2nd appellants was that they had disposed off (burnt) the same, which was against the company policy. 8.He then decided to call in his auditor (PW2) who did partial Audit of three months and discovered that Kshs.965,075/= was missing and thereafter opted to undertake a comprehensive audit for the period 1st January 2018 to May 2021, which revealed losses amounting to Kshs.29,261,060/=. He reported the matter to the police and all the appellants, who were his workers were arrested as they had been implicated in the said fraud. 9.Under cross examination PW1 confirmed that the company did meet its operational expenses between 2017 to 2020 and that the daily sales reconciliation report were sent to him by the 1st and 2nd appellant through WhatsApp, but the returns excluded lubricants sales as that was handled separately by Farida Salah. He further confirmed that they did not operate a financial management system and he would analyse his business annually. He further reiterated that the pump attendants would report to the 1st appellant, and both 1st and 2nd appellant would send him daily reconciliation reports of sales made through a WhatsApp group that they had jointly created for easy of communication. 10.He further confirmed that all employees would report to the 1st appellant and when he realised that the company was suffering unexplained losses, he instructed his brother to run the show and that is when they discovered that pump readings had been altered, a collaboration effected between all the appellants. This had prompted him to call in the auditor who unearthed deeper malaise and resulted in the said employees being charged. 11.PW2 Micheal Mwangi Wachira, confirmed that he was a certified public accountant (No 2094) based at Nairobi and was requested by PW1 to undertake an in-depth audit and reconciliation of sales returns made by the petrol attendants using the stations banking’s and reconciliation reports. The initial report covered the period April 2020 to May 2021 and later also covered the period from 1st January 2018 to May 2021. 12.Each pump was allocated to one attendant and he/she would be in charge of the said pump during the whole period of his shift. When starting and closing his/her shift the said pump attendant would note the readings on the daily reconciliation report, signed by the said attendant, which report would be handed over to the station manager to compute sales figures. This was done by multiplying the sales in litres by the selling price. The expected sales for the day would be arrived at after deducting sales sold on credit, sales paid for by credit cards, Mpesa and sales paid by Total BV cards. The balance after this would be cash sales for the day. 13.During the audit, they came across instances, where entries in the daily reconciliation report were incorrectly computed, where meter opening reading were not in agreement with the closing meter readings from the previous shift for the same pump and in one instance had been inflated by 200litres for a particular pump. The 1st appellant would receive the daily reconciliation report from each attendant, he would then post the same on an Excel sheet and forward to PW1 through WhatsApp on daily basis, and also forward to the 2nd appellant for daily accounting posting. 14.They had meticulously gone through the mangers reports on reconciliation for all pumps for each month of all the years under review, looked at the reports sent to the director and the different selling prices over the said period of time and established where the shortages would arise from, which was mainly due to variances contributed to by wrong recording at the daily reconciliation undertaken by customer pump attendants. Their report was contained in five volumes, which included all daily and monthly reconciliation reports for the period under review and produced it into evidence as Exhibit 3(i) to(v) and the Email and WhatsApp communication from the 1st appellant to PW1 too was produced as Exhibit 6. 15.In summary, there were variance between the expected sales as computed using the pump meters and actual reported sales, and in the final analysis they discovered that 302,768 litres of fuel valued at Kshs.33,847,144/= could not be account for and individually the appellants, who were pump attendants were accountable as follows;a.Abdi Isacko Abdi; discrepancy of 73,531 litres valued at Kshs.8,031,431/=b.Ezekiel Nambale; discrepancy of 25,671 litres valued at Kshs.2,782,385/=c.Hawo Hussein; discrepancy of 89,427 litres valued at Kshs.10,100,003/=d.Tony Halake; discrepancy of 8,346 litres valued at Kshs.907,090/= 16.Under cross examination, PW2 confirmed that the audit on credit sales was done, but he had not included it amongst the audit relating to losses incurred due to false reconciliation entries, which findings, they had tabulated separately. He had also not come across a prior audit or any standard document outlining organizational procedure for the said service station. According to him it was the 1st appellant who was the station manager and he had reached that assumption based on the reporting structures noted during the said audit process. 17.PW3 Salah Omar Salim, recalled that in December 2020, his elder brother, PW1 called him and requested him to take over the overall supervision of their petrol station, where he also ran his independent business. There were two shifts at the said station and each attendant would be given his daily reconciliation form, where they would fill opening meter readings at the start of the said shift and also log in closing meter readings when the shift came to an end. The difference between the opening and closing readings gave the sales for the said shift. The attendant would also hand over the said form to the station manager who would do his own reconciliation to ensure that the entries made therein were accurate, after which he would then send the reconciliation report on daily basis to PW1. 18.On route check of the said daily reconciliation forms, he realised that some of the entries were tampered with and informed PW1, since he suspected that there was collusion between the accused persons. Later he and PW1 also went through the said reconciliation reports and decided to call in PW2, to undertake the comprehensive audit, which confirmed their worst fears and resulted in the appellants being charged with the offence before court. 19.Under cross examination PW3 clarified that he had his own business within the service station, and was not employed by PW1 to work for the said petrol station. In December 2020 at the request of PW1 he had supervised the station workers and noted the abnormality, which he reported. 20.PW4 PC Jackson Mauso testified that after PW1 had raised his complaint, he did investigate this case and noted how the daily sales were recorded by the pump attendants after every shift and reconciled by the 1st and 2nd appellants as the station manager and accountant respectively. It was established that several entries had been altered creating a difference in the amount of petrol sold (which he randomly picked from the audit report and highlighted) and over the period of time it was established by the audit undertaken that the station had lost a total of Kshs.29,261,060/= worth of petroleum products sold and which the appellants could not account for. After investigations were complete, he did arrest the said appellants and arraigned them before the court to face the charges levelled against them. 21.Under cross examination he confirmed that he relied on the audit undertaken to charge the appellants and had noted that PW3 was the supervisor at the said Petrol station. He reiterated that the pump meter readings had been altered thereby creating inconsistencies in the amount of petrol sold and further agreed with the appellants counsel that supporting documents in the audit report were photocopies that were not certified. 22.PW5 Guyo Jirmo confirmed that he worked as a pump attendant at PW1’s petrol station and his work was to serve customers and would fill the reconciliation form for his petrol pump at the beginning and end of his shift. He produced a sample of the said form into evidence. Under cross examination he confirmed that he did not have his employment letter in court and reiterated that they would close/sign the said reconciliation form before the 1st appellant. He also clarified that Farida Salah was not the forecourt manager, but did exclusively deal with lubricants at the said station. He was also aware of the black book used to capture dip readings and they also had a meter reading book which captured fuel readings and available stock. 23.He reiterated that each individual pump attendant would fill the daily returns form for each pump and hand it over to PW1, who would go through the same and confirm that the details therein were accurate after which each pump attendant would sign the reconciliation forms to authenticate the same. They also did not deal with the black books, master control book or reading book. 24.The prosecution closed their case at that point and all the appellants were placed on their defence. The 1st Appellant confirmed that he was the former manager at Marsabit Total petrol station and was in charge of human resource and corporate compliance issues. Overall, he would report to PW1 and on the ground was supervised by PW3, since it was a family business and they would organise how to purchase the stock sold and accounts. He also worked with the accountant, forecourt supervisor attendant, lubricant attendant and direct procurement officers in Nairobi. Further it was his evidence that the customer/petrol pump attendants would report to the forecourt supervisor one Farid Salah. 25.He further clarified that he never handled any cash transacted at the petrol station and that they had established a common WhatsApp group, where he would report the daily occurrence to PW1, twice a day. He recalled that in April 2021, the 2nd appellant had a serious fall out with PW3 and tendered his resignation and later in May 2021 and audit was conducted to facilitate his clearance. To facilitate the said audit, he did provide the auditor with invoices, delivery notes, sales record (master stock control book (black book), financial documents, bank statements, cash/Mpesa records sales record, Total Kenya BV cards sales records and outstanding creditors records. He also sent him all the emails and WhatsApp communication (Exhibit 6). 26.He confirmed that the daily sales record would capture all the data from each pump for both shifts A & B and it would also give a summary of all events that occurred on daily basis at the station. By and large the station had not recorded any losses, but in the few instances when the same had occurred, the same were within acceptable margins. In one instance there was a mis recording, where they thought that they had lost 240 litres of petrol and this had led to the pump attendant being arrested, but later it was discovered that the forecourt supervisor had made an error in her recordings and the matter was dropped. After the audit was complete, PW2 did inform him that the station had lost a colossal amount of money, of about Kshs 40 million, which to him was not possible and his request to be supplied with a copy of the said audit report was rejected. 27.Further, the auditor had informed him that the staff had conferred to him that they (him and the 2nd appellant) would retain Kshs.5,000/= on daily basis, which they would share and any staff member who would fail to deliver this sum would be threatened with dismissal. He outrightly denied this allegation and stated that it was not true. After the audit, the matter was reported to the police and they all went and recorded their statements. The 1st appellant emphasized that PW3 was trained by Total Kenya on operational checks and balances and on how to detect variances on stock movement and they had maintained strict compliance of the same to ensure that no outside stock was sold within their business premises. 28.Under cross examination, he maintained that all the pump attendants worked under him, but reported to the forecourt manager. He was also the administrator of the station WhatsApp group where he reported the daily returns to PW1. He challenged the findings of the audit report on the basis that the said auditors had not used the black book, which contained original entries, and further noted that the entries for March and April 2021 too were missing. 29.Under further cross examination from the complaint’s counsel, he admitted that he signed the employment contract of all employee apart from that of the 2nd appellant, and would report to both PW1 and PW3, through WhatsApp and email, which were the stand mode of communication. He insisted that the forecourt manager, Farid salah is the one who would receive daily reconciliation reports of each pump attendant surrendered at the close of each shift and confirmed that the same were captured in the audit bundle produced. 30.Further, he emphasized that the forecourt manager and pump attendant would individually take the relevant meter reading, which must collaborate and then would calculate the daily sales using the difference between the opening and closing readings. The said findings would be forwarded to him and he would in turn forward the same to PW1 and head of accounts Nairobi, Mwangi Kariuki. He confirmed that audit report Volume 6 contained the summary of WhatsApp communication shared over the said period. If there were any lapses which occurred, then PW3 would be the right person to answer the same and affirmed that he never verified the information received from the forecourt manager before forwarding the same to PW1. 31.The 4th appellant (DW2) confirmed that he worked as a pump attendant at the said station and after the audit had been carried out, he was summoned by PW1, who demanded that he accounts for the loss established. He denied any wrong doing and was later arrested and charged with the offence before court. He confirmed that as a pump attendant he would take daily pump readings at the start and close of his shift with his supervisor and the same would be recorded in the black book by the supervisor and his daily reconciliation report, and the black book data had to tally. Under cross examination he went through the audit report and confirmed several inconsistencies/ variances noted over the audit period. 32.One Hawo Hussein, the 5th Accused person also testified and his evidence mirrored that of the 4th Appellant, and it is noted that he did not Appeal against the conviction and sentence passed. 33.The 3rd Appellant (DW4) also confirmed that he worked as a pump attendant and filled in daily reconciliation forms, which they got from the station supervisor, and would individually fill the same at the beginning and end of every shift. The supervisor too, would record the same entries in the black book. After the audit, he was summoned by PW1 and interrogated over the sums lost under his watch and later were escorted to the police station to record their statements. Under cross examination he was taken through the audit report and confirmed the various inconsistent entries noted. The evidence of the 5th Appellant (DW5) evidence was similar to that of the other pump attendants as captured above 34.The 2nd Appellant (DW6) confirmed that he was the station accountant at Marsabit Total petrol station and used quick books system to run the station accounts until 31.04.2021 when he resigned. His role was to keep customer statements recorded in the system and also post all the sales to the system indicating the different payment modes of payment, which included payments made through, BV card, Visa Mpesa, credit sales or cash. In instances where discrepancies arose, he would investigate the same and either resolve it amicably, correct wrong posting and in some instances deduct payment from the pump attendant salary. His other duty was to undertake stock control movement, which involved reading opening meter readings on all nozzles at the start of the month and closing meter readings at the end of the month and send his report to Total headquarters-Nairobi every month. 35.He would also audit lubricants sold, but sales received from the same were handled by PW3 and never forwarded to the station account. After considering the sales, outstanding debts, customer aging analysis and other customers consuming fuel through credit and outstanding balances he noted that the company debt stood at Kshs.28,059,936.31/= at 31.03.2020 and the same had grown to Kshs.40,000,000/= by the time he left employment. He had also reported to PW1 that Total headquarters had unlawfully deducted a total of Kshs.12,000,000/= on account of fuel sold via Total BV card and that too had to be taken into consideration when looking at the alleged losses made by the station. 36.Under cross examination he confirmed that the situational report which he had referred to the period of 2018 going backward and did not relate the period going forward, though the customer aging report referred to the period from 2018 up to 31.03.2020. He confirmed that PW3 run his own business known as Baslum Auto spares within the said petrol station and his report had noted that some customers had alleged that they had paid some money owed to the petrol station to him, but which in turn, he had not forwarded to the petrol station. He also clarified that debt were assets/not losses and the same was not related to the case at hand. 37.The 2nd accused further confirmed that he interacted with daily reconciliation report, worked as a team with the 1st appellant and reported directly to PW1. In particular his role was to enter daily sales record based on the daily reconciliation report and where there were variances, he would note the same and report to PW1. He also confirmed that though debtor owed to the company was Kshs 40 million, the same was not related to the case at hand. He insisted that there were no alterations at the pump and he would have pick up the same during his monthly reconciliation assessment of fuel sold. 38.DW7 Khadija Yusuf confirmed that she worked at the petrol station as a pump attendant and corroborated the evidence of 3rd and 4th Appellant herein. 39.At the close of trial, the learned trial magistrate did consider all the evidence adduced and found that there was direct and reliable evidence to convict all the Appellant’s of the offence they were charged with and proceeded to convict them under Section 215 of the criminal procedure code. After mitigation, the trial court did sentenced them to pay a fine of Kshs.500,000/= each and in default to serve a sentence of two (2) years imprisonment. C. The Appeal 40.Dissatisfied by the conviction and sentence passed, the Appellant’s filed their joint petition of appeal and raised the following grounds of appeal that;a.. The learned trial magistrate erred in law and fact by disregarding the legal requirements for the admissibility of electronic evidence in accordance with Section 106B of the Evidence Act. The court admitted electronic evidence, including WhatsApp messages and accounting software records, without the mandatory certificate required under Section 106B(4) of the Evidence Act. This failure rendered the electronic evidence inadmissible and unreliable.b.The learned trial magistrate erred in law and fact by failing to authenticate the electronic records relied upon by the prosecution. The court overlooked the legal requirement that the prosecution must prove the reliability of the systems used to generate the electronic records, as per Sections 78A and 106B of the Evidence Act. The prosecution failed to demonstrate that the computers used were functioning correctly or that the records were produced in the ordinary course of business.c.The learned trial magistrate erred in law and fact by failing to properly evaluate the inconsistencies in the testimonies of the prosecution witnesses. The witnesses, including PW1, PW3, and PW4, gave contradictory accounts of key facts, such as who reported the alleged fraudulent activities to the police. These inconsistencies were not adequately addressed, casting doubt on the credibility of the prosecution's case.d.The learned trial magistrate erred in law and fact by relying on circumstantial evidence that did not meet the required legal standards. The prosecution's circumstantial evidence, particularly the reconciliation reports, was unreliable, as the reports lacked serial numbers, dates, and signatures. Some reports were also missing, and the chain of circumstances was incomplete. The court failed to ensure that the circumstantial evidence excluded any reasonable hypothesis of innocence, as required by law.e.The learned trial magistrate erred in law and fact by failing to consider the defense's alternative hypotheses regarding the alleged fraud. The defense presented plausible explanations, including operational errors and potential malice by the complainant, which were not adequately considered by the court. The court instead improperly focused solely on the prosecution's evidence, despite these alternative explanations.f.The learned trial magistrate erred in law and fact by failing to address the non-disclosure of the "black book", a critical piece of evidence in the case. The prosecution failed to produce this book, which was allegedly used to record transactions at the petrol station. The court did not compel its disclosure, thereby allowing the prosecution to suppress material evidence that could have exonerated the accused.g.The learned trial magistrate erred in law and fact by failing to recognize the bias and malice in the investigation, as evidenced by the complainant's coercive actions towards witnesses. The defense witnesses testified that they were pressured by the complainant to implicate the 1st and 2nd accused persons, and upon their refusal, they were added as accused persons. This clear bias and malice by the complainant undermined the integrity of the investigation and should have been given more weight by the court.h.The learned trial magistrate erred in law and fact by failing to find that the prosecution did not prove the alleged financial losses beyond reasonable doubt. The prosecution did not produce key financial records, such as invoices or records of fuel purchased and sold, that would have established whether any losses actually occurred. The failure to provide this critical evidence seriously undermines the prosecution's case.i.The learned trial magistrate erred in law and fact by failing to recognize the flaws in the charges against the accused. The charges, particularly those regarding tampering with pump meter readings, were vague and lacked specific details about the alleged actions of the appellants. The charges failed to outline how the appellants allegedly altered the meter readings or the specific quantities of fuel involved. This lack of specificity prejudiced the accused and resulted in an unfair trial. 41.The Appellant’s prayed that their conviction and sentence be quashed and that they be set free. D. Submissions i) The Appellants Submissions 42.The appellants relied on their submissions dated 5th December 2024 and stated that they had a right to be presumed innocent as guaranteed under Article 50(2), (a) of the Constitution and that the state had to prove their case beyond reasonable doubt. Reliance was placed in the case of Woolmington Versus DPP 1935 AC 462, Bakare Vs State 1985 2NL WR & Miller Vrs Minister of Pensions 1942 AC for emphasis. They rehashed the daily activities carried out in the forecourt and pointed out that all items sold, including fuel products (petrol diesel and kerosene). LPG, Lubricants and car care products were all recorded in a book known as “Master control stock book – black book”, kept under the custody of the forecourt manager and it was a key document as it was in the said book, that all stock movement was recorded at the end of every shift. They also acknowledged that each attendant recorded their numbers in the daily sales reconciliation form at the end of each shift and the sale had to correspond with details of the black book. 43.The sales would be transacted under different modes including credit cards, invoices (for credit customers), Mpesa, Total Kenya Bon Voyage card (BV) as well as cash transactions and at the end of the day sales reconciliation would be undertaken. They faulted the prosecution for failing to avail the “black book” to their detriment, considering that it was under the custody of the complainant and was a vital book in collating all sales data generated for financial reporting by the 2nd Appellant. 44.The trial Magistrate had failed to appreciate that PW1, PW2 and PW3 had all denied the existence of this black book and/or its use to record daily sales, which book was also the fulcrum without which, no proper audit could have be undertaken. Further their conviction was made without proper consideration of the evidence, especially the audit report, which lacked evidence to show that they had altered the pump meter readings, nor were the said reconciliation reports serialized to follow shift sequence, some had no dates or signatures and therefore could not be used as forensic evidence to validate the complaint. PW1, had also confirmed in his evidence that the pump attendants could not alter the said petrol pump meters and no evidence had been led to show how they had tampered with the same. 45.The said audit had also ignored, the station reporting structure, since it was a family run business, with PW3 being the overall manager with supervisory responsibility and implementor of key decisions. In a nutshell the 1st appellant reported to PW3 and therefore left no room for him to conspire with the 3rd to 5th Appellants. Secondly the said pump attendants also reported to the forecourt manager, one Frida Salah who dealt with both fuel and lubricants returns and she too would have noted the conspiracy alleged and nipped it in the bud. 46.secondly, exhibit 6 of the prosecution evidence, contained daily communication of events and sales performance sent by the 1st and 2nd appellant to PW1. No evidence was produced to show that they had tampered with the said data in any manner and/or that it contained fictitious entries of meter readings. PW1 had also stated over the years the station had met the sales targets set and numbers never lied, if the targets were met, it meant that the station was generating sufficient income and the losses alleged to have been incurred would run contrary to this assumption. 47.Further, they submitted that no witness or evidence was adduced by the prosecution to prove existence of a conspiracy between the 1st and 2nd appellant or between the 1st and 2nd appellants with the other appellants, who were pump attendants that either led to the alleged loss of money or inferred any sort of favour or benefit to them. The 1st and 2nd appellant reiterated that the 3rd to 5th respondents did not work under their direct supervision as they reported to the forecourt manager, one Farida Salah, a 1st cousin to PW1 and PW3, who incidentally handled all the cash received from daily sales and those made in settlement of debt. There was therefore no conspiracy which could materialise without her knowledge and that of the overall supervisor (PW3). They relied on the case of Christopher Wafula Makokha Vs Republic, R Vs Brisac (1803) 4 East 164, 71 where it was held that,” prosecution must prove existence of a conspiracy between the accused and some other person to do the act complained of.” 48.The third issue raised was that the audit done was incomplete. They had supplied the auditor with 3rd party vendor fuel purchase invoices, fuel delivery notes, master stock control book (black/meter books), bank statement files, Total Kenya BV credit statements, Mpesa statement, outstanding creditors file and summary of daily sales reconciliation report (WhatsApp extract, Volume 6), all of which had been requested for by the said auditor but he had omitted to consider stock procured and made available for sale (All data on fuel stock from 01.01.2018 to 10.06.2021) without which losses could not be ascertained. As a result, the probity of audit report was in doubt and also denied them an opportunity to counter checks the accuracy or inaccuracy thereof as recorded by the fore court manager. 49.They further faulted the auditors evidence on the basis that he had indicated in his report that the amount stolen was in cash, without providing the trial court with a breakdown of the alleged money lost through other modes of sales made through credit, Mpesa or Total BV card and this critical omission had been caused by the said auditor not using the inventory data ( stock movement/dip measurement- black book) and bank statements. PW2 was thus not a reliable witness and as a result, they had been convicted based on weak circumstantial evidence, deduced from an incomplete audit report from, which no reasonable inference on their guilty could be drawn. The trial magistrate had therefore erred in convicting them based on the same and urged this court to so hold, Reliance was placed on Sawe Vs Republic (2003) klr for emphasis. 50.On the fourth issue raised, the appellants faulted the trial Magistrate for disregarding their defence tendered and submissions without giving an explanation as to why he rejected the same, and this breached their right to fair trial. Reliance was placed in JMN Vs Republic (Criminal Appeal No E017 of 2021), (2022) KEHC 279(KLR), where it was held that the trial court had to consider all the evidence tendered and failure to do so was a fatal mistake. Also see Okeno Vs Republic (1972) EA 32 & Joan Chebichii Sawe Vs Republic (2003) eKLR, where the said issue was also discussed. 51.The trial court had also failed to note and resolve in their favour the numerous contradictions and inconsistencies noted on the prosecution evidence and/or the fact that the complainant (PW1) had forced the 3rd to 5th appellants to implicate the 1st and 2nd appellants since they were not from the local community. Finally, it was also their submissions that the court had admitted and relied on the bundle of electronic evidence (Exhibit 6) without production of the electronic certificate as mandatorily required under Section 78A and 106B of the Evidence Act, Cap 80 laws of Kenya. Reliance was placed in the case of Republic Vs Mark Lloyd Stevenson (2016) eklr, where it was held that documents that are not authenticated and do not meet the requirement of the Evidence Act, must be expunged from the record. 52.In conclusion it was the appellants submission that the prosecution evidence fell short of the standard required to convict them as there was no direct, cogent, convincing and compelling evidence to warrant the trial court to have arrived at the said decision. It was thus their prayer that this Appeal be allowed, the trial court judgment on conviction be quashed and their sentence be set aside. ii) The Respondent Submissions 53.The respondent relied on their submissions dated 22nd July 2025, where they supported the trial court findings on the basis that it was proved that the 1st and 2nd appellants were the stations manager and accountant respectively, while the 3rd to 5th appellants were the pump attendants. An audit was carried out and it was established that the said business had lost a substantial amount of money ( Kshs 29,261,060/=) in sales during the period, when the said appellants were employed and this was effected by incorrectly computing daily returns that were not in agreement with the real meter readings. 54.The said report had specifically detailed instances of these incidences from 2018 to 2021 for each of the pump attendant (3rd to 5th appellant) and also gave the value of petrol/litres of fuel not accounted for. The offence of thief by servant was thus proved as against the said appellants. Reliance was placed in the case of Oyona Vs Republic (2024) KEHC 16743 (KLR) for emphasis. 55.As regards the offence of conspiracy to committing a felony, the respondent relied on Archibold, criminal pleadings evidence and practise, 2003 ( sweet & maxwell 2003) which adopted the definition of “ criminal conspiracy” as a situation where a person agrees with another person or persons that a course of conduct shall be perused which, if the agreement is carried out in accordance with their intention either will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the offence or any of the offences impossible. The essential ingredient to thus prove the offence of conspiracy to commit a felony in two or more people agree to put into effect a scheme whose ultimate aim would be the commissions of a criminal offence. See Republic Vs Brisac (1803) 4 East 164 at page 71 & Njenga & 2 others Vs Republic (2005) KEHC 2904 (KLR). 56.From the evidence adduced the 1st appellant would reconcile the daily sales report and send them to PW1 and the 2nd appellant, who would also reconcile the same monthly to generate his sales report The pump attendants were required to record their opening and closing meter readings at the end of their shift and the same had to tally. It was these entries that had been doctored and ultimately lead to the losses incurred by the petrol station. The 1st and 2nd appellant had failed to detect the said variances and by their omission it could be safely assumed that they were complicit and in concert with the 3rd to 5th appellant in defrauding PW1. Reliance was placed in the case of Gichanga Vs Republic (1993) KLR 143 for emphasis. 57.The respondent thus urged the court to uphold the conviction and sentence passed by the trial court and be pleased to dismiss this Appeal. E. Analysis & Detrmination 58.The being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) & Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court. 59.Further, the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, while discussing the said issue did state that:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 60.This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the following issues arise for determination;a.Burden of proof; Whether the ingredients of the offence of stealing by servant contrary to section 281 of the Penal code and conspiracy to commit a felony contrary to section 393 of the Penal code was established.b.Whether the trial Magistrate erred in admitting electronic evidence, produced into evidence without electronic certificate to certify the authenticity of he said evidence contrary to section Section 78A and 106B of the Evidence Act, Cap 80 laws of Kenya.c.Whether the court relied on unsubstantial and contradictory evidence to convict the appellants.d.Whether the sentence passed should be interfered with. 61.In criminal cases, the burden of proof lies with the prosecution and they have to persuade the court either by preponderance of evidence or beyond reasonable doubt, that the material facts that constitute their whole case are true, thus consequently have established their case and deserve to have judgment given in their favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688. 62.In other words, the standard of proof in a criminal case is very high; beyond reasonable doubt. According to Duhaime’s Criminal Law Dictionary, reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in such a condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge. The High Court in Criminal Appeal No. 11 of 2013, Caroline Wanjiku Ngugi vs Republic (2015) eKLR, though persuasive, Mativo J (As he was then) sated as follows on this issue;“I have carefully considered the submissions by the Appellants’ Advocates and submissions by the learned State Counsel and the relevant law and authorities. I will address both grounds together.To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty.The key question that this court seeks to answer is whether or not the prosecution proved the ingredients of the offences and whether the appellant offered any other explanation that could exonerate her from the offence or whether there exist any other co-existing circumstances which could weaken or destroy the inference of guilt which is a necessary test before arriving at a conviction on the evidence tendered. This calls for close examination of the law, the evidence tendered and the offered by the accused. Whether the ingredients of the offence of stealing by servant contrary to section 281 of the Penal code & conspiracy to commit a felony contrary to Section 393 of the Penal code was established 63.The 3rd to 5th appellants were charged with the offence of stealing by servant and the particulars were stated in the charge sheet respectively. In Oyona Vs Republic (2024) KEHC 16743 (KLR), the court did hold that;“To establish a charge of stealing by servant and to secure a conviction under the above section, the prosecution must prove the following;a.The accused was an employee of the complainant;b.The property came into the accused possession while they were employed;c.The accused dishonestly took the property, defrauding the employer 64.The prosecution did establish by the evidence adduced and the 3rd to 5th appellants also in defence admitted that they worked at Marsabit Total service station as pump attendants. Part of their duty included to fill in reconciliation forms, where at the beginning of their shift they would note the pump meter readings and on completion of their shift would once again note the end pump meter readings. They would then reconcile the said readings to find the amount of fuel sold with the 1st appellant and sign the said report to authenticate it. 65.The audit report did establish that over the audit period from 2018 to 2021 the said reconciliation daily reports had be incorrectly computed, where the opening meter reading were not in agreement with the closing meter reading from the previous meter reading of the immediate prior shift for the same pump. This was confirmed by too by PW1 and PW3, who noted in one instant where the meter readings were inflated by 200 litres for a particular pump in one shift. 66.The audit report, produced as Exhibit 3 did reveal that the company lost Kshs.33,847,144/= due to discrepancies in the sales entries made by the 3rd to 5th appellants, and other pump attendants who did not appeal. In summary there was variance between the expected sales as computed using the pump meters and actual reported sales, and individually the appellants were accountable as follows;e.Abdi Isacko Abdi; discrepancy of 73,531 litres valued at Kshs.8,031,431/=f.Ezekiel Nambale; discrepancy of 25,671 litres valued at Kshs.2,782,385/=g.Tony Halake; discrepancy of 8,346 litres valued at Kshs.907,090/= 67.In defence the appellants did confirm the processes undertaken daily and did not rebut the evidence laid on their doorstep. Consequently, I do find that the offence of stealing by servant was proved against the 3rd to 5th appellant. 68.As regards the offence of conspiracy to commit a felony, contrary to section 393 of the Penal code, under the said section, any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done is guilty of a felony. The Oxford Advanced Learners Dictionary 6th Edition 2000 (oxford university press) defines “conspiracy” as:“a secret plan by a group of people to do something harmful or illegal.” 69.According to Archibold, Criminal pleading, evidence and practice, 2003 (Sweet & Maxwell 2003) adopting the definition as contained in the Criminal Law Act 1977 of England (at page 2689, para 33-2) “Criminal Conspiracy” was defined as a situation where a person agrees with another person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions either will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the offence or any of the offences impossible. The essential ingredient to thus prove the offence of conspiracy to commit a felony in that two or more people agree to put into effect a scheme whose ultimate aim would be the commission of a criminal offence. It will not matter that the criminal offence proposed to be done may be impossible to be undertaken. Proof of the existence of a conspiracy is generally a “matter of inference, deduced from certain criminal acts of the parties accused, done in the pursuance of an apparent criminal purpose common between them. See ”R –vs- Brisac (1803) 4 East 164 at p. 71 (as quoted at page 2692 Archibold para 33 – 11 (supra). 70.To prove a conspiracy, the prosecution had to establish that the respondents together with others, agreed by common mind to defraud the complainant. The inference must be made both from the actions of the accused and the evidence tendered in court (see Republic v Anne Atieno Abdul & Others [2017] eKLR) & Njenga & 2 others Vs republic (2005) KEHC 2904 (KLR). 71.Further Halsbury’s Laws of England Vol. 25 observes that;“It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place, it is necessary to show a meeting of the minds, a consensus to effect an unlawful purpose. 72.Apply the above factors to the case at hand, I do find that the prosecution established that Accused 1 and 2 were the stations manager and accountant respectively and part of their duty was to prepare daily/monthly sales reconciliation reports. Specifically, after the pump attendants had prepared the individual pump returns at the end of each shift, they would take the same to the 1st accused, who would go over the same and if approved the pump attendants would sign reconciliation form to signify the correctness of the data entered therein. The 1st accused would then use the same information to update his daily fuel reconciliation report on his excel sheet and forward the same to PW1 for information and the 2nd appellant for daily accounting posting. At the end of each month the 2nd appellant would also use the said reports to tabulate monthly sales and/or annual sales as the case maybe. 73.The 1st and 2nd appellant in defence also confirmed that this was the process undertaken and eventually when the stations started to run into headwinds in 2020, PW1 and PW3 noted inconsistences in the entries made in the reconciliation reports and their worst fears were confirmed by the audit report, which revealed the scale of the losses suffered as a result of inaccurate entries made in the daily reconciliation reports, which in one instant revealed a pump which could not account for 200 litres of petrol sold. 74.PW2 painstakingly went through all the relevant documents for the period June 2018 to May 2021 and in his report, he included individual pump attendants’ reports, daily reconciled report made by 1st appellant, managers monthly reconciliation report. The computed sales were done by the 1st accused by multiplying the sales in litres by the selling price and expected cash sales would be arrived at by deducting sale sold on credit, sales made by credit card, Mpesa and/or through Total BV card. Upon interrogation of these figures, they did realise that the value of sales reported and the meter readings did not tally and that the variance had been contributed to by wrong recordings and computation on the daily reconciliation reports. 75.It goes without saying that these variations could not have passed the eagle eyes of the 1st and 2nd accused unless they choose to look away, and thus by not raising any complaint despite dealing with the data on daily basis, they were complicit in abetting the actions of the 3rd to 5th appellants. Thus the only logical conclusion that can be arrived at was that the 1st and 2nd appellant were complicit and in concert with the pump attendants in defrauding the complainant of his business profits. 76.In defence both the 1st and 2nd appellant went at length to deny any wrong doing, In particular they stated that the PW3 was the overall station manager, while the pump attendants reported to one Frida Salah who was their immediate supervisor and they would reconcile their accounts with her. They further stated that the audit done was incomplete and unreliable because the said auditor did not use the “black book” to reconcile his findings. In other words, the meter variances (which PW2 exclusively used) had to tally with dip variances and the auditor’s failure to use this very critical sub set of data was to their detriment. 77.First and foremost, the prosecution evidence that Frida salah, exclusively dealt with sales of lubricants was not displaced and both prosecution and defence evidence converged on the point that it was the 1st appellant who would on daily basis reconcile the pump meter readings with individual pump attendants and report to PW1. He would then forward his report to the 2nd appellant for daily and monthly sales reporting. 78.Secondly, the 1st appellant in his evidence in chief did confirm that they gave the auditor, “all of the vendors invoices, delivery books, sales records (master stock control book (black book), financial documents, bank statements, cash/cheque sales figures, Total BV card sales report, Mpesa statement and outstanding creditors report. All these documents were to prove purchase and reconciliation and further, he did send the auditor WhatsApp and email communication, which was produced into evidence as Exhibit 6. They cannot then turn around and purport to poke holes into the said audit report, which, with pin point accuracy detailed where the losses arose from. 79.The appellants also faulted the trial magistrate for failing to note the contradiction and inconsistencies from the prosecution witnesses that were the nucleus of this matter. It was clear from the evidence of the 3rd to 5th appellant and the 7th defence witness that they had been coerced to frame the 1st and 2nd appellant since they were, “gurales”, which is a common slung used locally to refer to persons from other tribes that do not share the language of the indigenous communities of Borana, Rendile or burji. 80.In the case of Twehangane Alfred vs Uganda (Cr.App.No.139 of 2001(2003) UGCA it was held that it is not every contradiction that warrants rejection of evidence. The court delivered itself thus:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” (see; Uganda Vrs Rutaro (1976) HCB; Uganda Vs George w. Yiga (1979) HCB 217 & Philip Nzaka Watu V Republic (2016) CR APP 29 OF 2015) 81.In this case, I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were minor inconsistencies in the evidence of some of the witnesses, which is common, I am unable to find that the same were material enough to warrant interference with the decision. Secondly the issue of ethnic bias also does not arise, as the 3rd to 5th appellants were charged based on the findings of the same audit report undertaken by PW2. 82.Finally, on whether the trial Magistrate erred in admitting electronic evidence, produced into evidence without electronic certificate to certify the authenticity of the said evidence contrary to Section 78A and 106B of the Evidence Act, Cap 80 laws of Kenya , it is my finding that before the trial commenced the appellants were granted ample time to go through the prosecution documents, especially the bulky audit report and at one point even granted permission to visit the petrol station and be granted access to the quick book and master control book. 83.During the trial, the appellants advocate did not object to have the bundle of emails and WhatsApp communication (Exhibit 6) to be admitted into evidence, and indeed, the 1st appellant also confirmed that he was the one who extracted the said electronic data and handed it over to PW2. They therefore did not raise any objection to its production into evidence without compliance with Section 78A and 106B of the Evidence Act, Cap 80 laws of Kenya. No determination was made on this issue by the trial court and it therefore cannot be raised through the back door at the appeal stage. Sentencing 84.Finally on sentencing, the principles guiding interference with sentencing by the appellate court were properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that;“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. 85.The Appellants were all convicted and each sentenced to pay a fine of Kshs.500,000/= or in default to serve two (2) years imprisonment. It has, not been shown that sentence passed was manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle and thus I do find that there is no basis for interfering with the discretion of the trial court on sentence F. Disposition 86.The upshot, having considered the evidence adduced by the parties at trial and submissions made, I do find that the Appeal lacks merit on both conviction and sentence and the same is dismissed. 87.The Appellant’s Bond earlier issued pending this Appeal is hereby cancelled and they shall pay the fine levied and/or serve the sentence earlier passed by the trial Magistrate Hon S.K Arome (PM) in Marsabit Spmcr No E362 OF 2021 dated 14th October 2024. The period of two months spent in custody until their release on bond pending Appeal on 11.12.2024 will be taken into account and they shall be given benefit of the said time (two months) already served under Section 333(2) of the criminal procedure code. 88.Right of Appeal 14 days. 89.It is so ordered JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 8TH DAY OF JULY, 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 8TH Day of JULY, 2026.In the presence of:-………………………………………..Appellants………………………………….For O.D.P.P………………………………….Court Assistant