https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10541

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **HCCRA NO. E032/2025** **JOYCE WANGUI KARIUKI………………………………..…APPELLANT** **- VERSUS -** **REPUBLIC…………………………………………………...RESPONDENT** **JUDGMENT** 1. The Appellant was charged with the offence of dealing or trading with LPG belonging to another licensee for gain without prior consent of the said licensee contrary to section 99 (i) (m) as read with section 99(l)(ii) of the Petroleum Act 2019. 2. The case proceeded into hearing after which judgment was delivered on 13th March 2025 wherein, she was found guilty and convicted for the offence of dealing or trading with LPG Cylinder belonging to another licensee for gain without prior written consent of the said licensee contrary to section 99(i)(m) as read with section 99(l)(ii) of the Petroleum Act 2019. 3. The Appellant, being aggrieved by the judgment delivered, filed the appeal dated 1st April 2025 against the said judgment and conviction. 4. According to the Appellant the appeal should be allowed for various reasons. Firstly, that the learned magistrate did not give a reasoned argument for the decision leading to the conviction of the Appellant, secondly, that the trial court did not prove the charge against the Appellant beyond reasonable doubt, thirdly that the trial court did not prove the particulars of the charge against the Appellant and lastly that the learned magistrate took account of the Appellant's Defence. 5. She prays that this court do allow the appeal, setting aside the whole judgment delivered on 13th March 2025. 6. She argues that the prosecution did not prove beyond reasonable doubt that the appellant was doing business in the manner she was charged. 7. The appeal is vehemently opposed. 8. The appellant was charged with the offence of Dealing or Trading with LPG cylinder belonging to another licence for gain without prior written consent of the said licensee contrary to section 99(1) of the petroleum act,99. The particulars were that on the 24th of April 2024 at Mununga sublocation, Gacharaigu location in Kangema Thirikwa shop within Murang'a County, the appellant was found dealing or trading three 6kgs cylinders of K-gas in without prior written consent of the Rubis Energy Kenya in contravention of said law. 9. The appellant entered a plea of not guilty. 10. After completion of trial the appellant was found guilty and was sentenced to 5 years. Having been dissatisfied with the finding and sentence, she has lodged the instant appeal. 11. To secure a conviction under the offence the prosecution had to prove the following: 1. The appellant was unlawfully dealing with petroleum gas cylinders. 2. That the appellant was unlawfully in possession of gas cylinders. 3. That the appellant had no licence in dealing with the said petroleum gas cylinders. 12. Section 99 of the Petroleum Act provides that a person who refills, rebrand, trades or otherwise deals with liquified petroleum gas cylinders of another licence for gain without the said licensees prior consent commits an offence and shall on conviction be liable to a fine of not less than ten million shillings or a term of imprisonment of not less than Five years or to such fine and imprisonment. 13. It's the evidence of prosecution witnesses that on 24th April 2025 they were doing their routine patrol as enforcement officers when the raided one shop which was manned by the appellant who was selling LPG gas cylinders of the said Rubis company for gain without the consent of the company. They arrested her and escorted her to the police station. They confiscated the cylinders. The inventory was produced in court. 14. According to the respondent, in her defence she stated that the gas cylinders were for her own use in the house as she had been left for her younger siblings to look after and which she never proofed so as the cylinders were found in the shop. The appellant witnesses all agreed that the gas cylinders were at the shop where the appellant was the owner of the shop. 15. On the issue of the sentence, Section 99 of the Petroleum Act provides that a person who refills, rebrand, trades or otherwise deals with liquified petroleum gas cylinders of another licence for gain without the said licensee prior consent commits an offence and shall on conviction be liable to a fine of not less than ten million shillings or a term of imprisonment of not less than Five years or to such fine and imprisonment. 16. Sentencing is at the discretion of the trial court and should be exercised judiciously. 17. In this particular case, the act itself has pronounced on the punishment of the offence and the trial magistrate considered the pre bail and sentenced her to minimum sentence as per the act. **Analysis;** 1. The issue for determination is whether the appeal has merit. 2. This being a first appeal, this court is guided by the principles as enunciated in the case of **Kiilu & Another v Republic [2005]1 KLR 174,** where the Court of Appeal stated thus: * 1. *“. 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.* 2. *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.”* 3. The prosecution was under a duty to prove that the Appellant was guilty of the offence of dealing or trading with LPG belonging to another licensee for gain without prior consent of the said licensee contrary to section 99(i) (m) as read with section 99(l)(ii) of the Petroleum Act 2019. 4. The prosecution did not prove that she was doing business with the cylinder. 5. The court finds that the fact that being in possession of more than one gas cylinder is not a crime under the law. 6. In this case, Section 99(1)(m) of the [Petroleum Act](https://new.kenyalaw.org/akn/ke/act/2019/2) under which Count I and Count II were brought provides that a person who refills, rebrands, trades or otherwise deals with liquefied petroleum gas cylinders of another licensee for gain without the said licensee's prior written consent commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings, or a term of imprisonment of not less than five years, or to such fine and imprisonment months or to both. 7. This Court has reviewed and relooked at the evidence of PW1 the arresting [officer. He](http://officer.he) testified that the accused was selling LPG gas of his company for gain without the consent of the company. 8. During cross examination, the witness testified that he did not see the accused person selling the cylinders. 9. PW 2 testified that he found the gas cylinders, inspected them and found that they had expired and that the accused was operating without the consent of the company and without a valid license and seal of the company. 10. She testified that she found the gas cylinders were not as they should be. 11. The witness testified that the accused was operating the business of selling Rubis gas without the company's consent. 12. According to PW 2 a gas cylinder for K gas has an original seal that is red in colour Produced as exhibit 3. 13. He testified that one cylinder serial No.45449 was expired for it is dated 2010 but it was tested in 2010.According to the witness cylinder serial No.130939 was tested in 2007 meaning it is expired. The other Cylinder serial number was not clear but it was tested in 2016 therefore valid. 14. On cross examination, the witness testified that he did not see the accused person selling the gas. 15. According to PW 3, the gas was outside the shop and they did not find a banner outside the shop. They testified that they did not find anybody purchasing the gas. One is left to wonder how the court arrived at the conclusion that the offence was committed. 16. During the hearing of the defence case, DW2, the Child who was aged 12 testified that five officers went to the premises. She testified that they were not selling gas. 17. The Witness testified that the cylinders were outside and that the father had sent gas cylinders to them. 18. According to DW3 they went to their sisters/accused place on 24th April 2026 and found that there was no gas as a result of which they called their father who sent gas to them, which was kept outside the sister’s shop. 19. The children testified that they had gone home for holidays. 20. DW4 the accused’s father testified that he had sent the gas to be used by the children during the holidays. 21. During cross examination he confirmed that he sent three cylinders because it was the holidays and, in any event, he used to send to her from the Thika because there was nowhere to refill gas where she lived. 22. Though there might be minor inconsistencies of the school opening dates that on its own cannot water down the children’s evidence which is otherwise consistent and credible. 23. In so holding I am guided by the case of **The Uganda Court of Appeal in Twehangane Alfred vs Uganda where** it was held that it is not every contradiction that warrants rejection of [evidence. It](http://evidence.it/) was held that: - *"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. (Emphasis ours).* 1. It is this court's finding that minor contradictions cannot displace a conviction. They do not affect the main substance of the Defence case. 2. On another front, Pw2 testified that a k gas cylinder has an original seal that is red in colour.I have looked at the K Gas Rubis seal and noted that it has a green sticker with a serial No.100000003304064. 3. The court further notes that the prosecution witnesses did not tell the court that the seal usually has a serial number. 4. The court has taken time to look at the seal and it is satisfied that it creates glaring gaps and doubts in the prosecution case. 5. The prosecution has not created any linkage between the seal and the [cylinders. If](http://cylinders.if) there is anything, then the same are remote entries which the prosecution left as hanging none consequential and incomplete pieces of an unresolved puzzle. This left the prosecution case with doubts and the trial court fell into error in arriving at a decision that the prosecution had proven its case beyond reasonable doubt. 6. In another dimension the prosecution should have produced transactions or witnesses like gas suppliers’ details, receipts, bank or Mpesa statements, gas delivery notes, Local purchase orders to show that the appellant was doing business with the gas cylinders. None was produced. 7. I have also looked at the inventory of the seized cylinders dated 24th April 2024 that was produced by the [prosecution. In](http://prosecution.in) the description of the cylinders part it simply says 6KG’s K gas cylinder. It does not describe the gas cylinders colours nor the or height. The description cannot be simply cylinders and no more. Further, in an event, the inventory does not say where the items were seized. 8. The inventory does not give the names of any witnesses who witnessed the seizure exercise being executed, the other witnesses would have given the inventory weight. 9. No sample license was produced by the complainant to show the kind of license that they normally issued. 10. The court further notes that the prosecution did not produce a cylinder that Rubis would have called a genuine cylinder. That would have assisted the court in appreciating how the 3 cylinders in this case were not genuine. 11. Inconsistencies in the dates of the school term in the defence case cannot overwhelm the substantive justice. They are minor in nature. 12. In ever, the burden of proof in criminal cases is always on the prosecution. 13. The court is unable to establish how the court arrived at the persuasion and the conclusion that the prosecution had made out a case that was beyond reasonable doubt. **Determination** 1. The appeal has merit. The prosecution did not prove its case beyond reasonable doubt. **Order:** The appeal is allowed. **Dated, Signed and Delivered Virtually at Eldoret this 14th day of July 2026.** **……………………………………** **J. CHIGITI (SC)** **JUDGE** ***In the presence of:*** ***Joyce Kariuki in person*** ***Mwakio for state***