[2025] KEHC 4204 (KLR)

Gitau v Republic (Criminal Appeal 114 of 2023) [2025] KEHC 4204 (KLR) (Crim) (3 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4204 (KLR)

Republic of Kenya

In the High Court at Nyandarua

Criminal

Criminal Appeal 114 of 2023

KW Kiarie, J

April 3, 2025

Between

Zachary Mwangi Gitau

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal Case No. E4321 of 2021 of Senior Principal Magistrate’s Court at Engineer by Hon. Daffline Nyaboke Sure–Senior Resident Magistrate)

Judgment

1. Zachary Mwangi Gitau, the appellant, was convicted of vandalism of energy equipment contrary to section 169 (1) (b) of the Energy Act No. 1 of 2019.

2. The particulars of the offence were that on various dates between October and December 2021, at Nyandarua Central sub-county, within Nyandarua County, they jointly, with others not before the court, wilfully and unlawfully vandalized transformers G/No. 15453 of 100KVA, N/94827 of 50KVA, and G/No. R146099, all valued at Kshs. 1. 3 million, the property of Kenya Power and Lighting Company.

3. He was also convicted in count two of stealing energy equipment contrary to section 169 (1) (c) of the Energy Act No. 1 of 2019.

4. The particulars of the offence were that on various dates between October and December 2021, at Nyandarua Central sub-county, within Nyandarua County, they jointly, with others not before the court, wilfully and unlawfully stole copper windings and transformer oil from transformers G/NO. 15453 of 100KVA, N/94827 of 50KVA, and G/No. R146099, all valued at Kshs. 1. 3 million, the property of Kenya Power and Lighting Company.

5. The appellant was sentenced to pay a fine of Kshs 5 million on each count or serve ten years in imprisonment in default. The sentences were ordered to run consecutively. He has appealed against both conviction and sentence. He was in person and raised the following grounds of appeal:a.The learned trial magistrate erred in law and fact when he convicted the appellant in a prosecution case where the vandalism charge was not proven.b.The learned trial magistrate erred in law and fact when he convicted the appellant in the prosecution case, as the appellant was not found in possession of the alleged vandalism items.c.The learned trial magistrate erred in law and fact by applying the wrong standard of proof in criminal cases, namely a standard of probability instead of the reasonable doubt standard.d.The learned trial magistrate erred in law and fact by convicting the appellant but did not consider the appellant’s defence.

6. The state opposed the appeal through M/s Mogoi Lilian, prosecution counsel. It was contended that the prosecution proved its case to the required standards and that the appeal lacked merit.

7. This court is an appellate court. As expected, I have carefully reviewed and assessed all the evidence presented to the lower court, keeping in mind that I did not witness any of the witnesses testify. Therefore, I will follow the well-known case of Okeno vs Republic [1972] E. A 32 to guide my decision-making process.

8. It was erroneous and prejudicial to charge the appellant with the offences of vandalism and theft. While an element of vandalism is involved in the act of stealing, they should have chosen which offence to pursue. The Act defines “vandalise” as follows:“Vandalise" means to commit any wilful, negligent, reckless or malicious act which destroys or damages energy infrastructure;In Black's Law Dictionary, "vandalism" is defined as:…the willful or ignorant destruction of public or private property, especially of artistic, architectural, or literary treasures.

9. In this case, I will endeavour to determine which of the two offences was proven.

10. The appellant was connected to the offence by two jerry cans containing oil that turned out to be transformer oil. The evidence of PC Kevin Ochieng (PW1) was that they were tipped off about the appellant, who was seen carrying two jerry cans. They tracked him, and upon arresting him, he led the police officers to the hotel, where two jerry cans containing oil were recovered. Later, he led them to his house, where they saw evidence of an oil spill on the floor. This was the gist of the evidence of PC Thomas Wayu (PW2). This witness added that they recovered a pipe used for siphoning oil, a red hacksaw, insulated pliers, an improvised link stick used for disconnecting high-voltage power, and a wire cutter, among other items.

11. The Court of Appeal in the case of Court in Karukenya & 4 Others vs Republic [1987] KLR458 held that the evidence of an accused that leads to the recovery of an exhibit is admissible. The evidence of recovery of the exhibits is admissible.

12. Richard Kimutai Langat (PW5) examined the oil in the two jerry cans and concluded that the oil was transformer oil.

13. Zachary Mwangi Gitau, the appellant, denied involvement in the offence. He argued that PC Ochieng falsely implicated him after he refused to steal from the store he managed, as PC Ochieng had desired. He threatened him with dire consequences, but this was an afterthought. PC Ochieng was not challenged with these facts.

14. The evidence adduced against the appellant was watertight. The prosecution proved the theft offence. Based on my earlier observation, I will quash the conviction in count one and set aside the sentence.

15. Section 169 (1) (c) of the Energy Act No. 1 of 2019 provides:A person who wilfully—(c)steals or attempts to steal any energy equipment or appliance or handles any energy equipment or appliance (otherwise than in the course of stealing) knowing or having reason to believe the equipment or appliance may be stolen, or dishonestly receives or retains the equipment or appliance, or dishonestly undertakes, or assists in its retention, removal, disposal or realization by or for the benefit of himself or another person or if he arranges to do so;commits an offence which is deemed to be an economic crime and shall, on conviction, be liable to a fine of not less than five million shillings or to a term of imprisonment of ten years or to both such fine and imprisonment.

16. The sentence in count two will remain undisturbed. I have noted that the trial magistrate factored in the days the appellant spent in remand.

17. The appeal has succeeded to that extent.

DELIVERED AND SIGNED AT NYANDARUA THIS 3RD DAY OF APRIL 2025KIARIE WAWERU KIARIEJUDGE