https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11597

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **CRIMINAL APPEAL NO. E032 OF 2025** **JULIUS NJUGUNA CHEGE ------------------------------------------------------- APPELLANT** **VERSUS** **REPUBLIC----------------------------------------------------------------------------RESPONDENT** **JUDGMENT** 1. The appellant in this matter moved this court vide Sections 347 and 350 of the Criminal Procedure Code, Cap 75 Laws of Kenya appealing against the conviction arising from the Judgement of the Honourable P.K. Mutai (PM) delivered on 10th June, 2025 in Nairobi MCCR/E107/2022 Republic Versus Julius- Njuguna Chege. 2. The Appellant was convicted of the offence of Trading and dealing with LPG cylinders of another licensee for gain without the license prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and in Count 11 with Transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulation Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations, 2019 as read with section 101 of the Petroleum Act. 3. The appellant set out the following grounds of appeal that:- 4. The learned magistrate erred in law and in fact in reaching the finding that the Prosecution had proved its case against the Appellant to the required standard yet the elements of both offenses had not been proved in the evidence adduced. 5. The learned magistrate erred in fact as he failed to consider that the LPG cylinders were neither presented nor produced in court for purposes of identification and inspection. 6. The learned magistrate erred in fact as he failed to consider that the LPG cylinders captured in the photographs adduced did not contain the marks placed upon them by the Investigating Officer as a way of identifying them at trial. 7. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that the Appellant was not a trader of LPG or LPG cylinders. 8. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that none of them saw the Appellant trading in the LPG cylinders. 9. The learned magistrate erred in fact by failing to consider that the LPG cylinders were not presented in court for purposes of ascertaining that they were filled with LPG. 10. The learned magistrate erred in fact by failing to consider that none of the prosecution witnesses were employees or members from the respective brand owners who could positively identify the LPG cylinders to belong to their respective brands. 11. The learned magistrate erred in fact by solely relying on a disputed inventory to find the guilt of the Appellant 12. The learned magistrate erred in fact by failing to consider that the said inventory produced by the prosecution did not capture the serial numbers of the cylinders as a way of positively identifying the cylinders. 13. The learned magistrate erred in fact by failing to consider that the certificate of production accompanying the photographs did not contain any information whatsoever relating to the cylinders whether in identification, ownership or state as to whether or not they were filled with LPG. 14. The learned magistrate erred in fact by failing to analyze the circumstances captured in the photographs in line with the witness testimonies of the chronology of events. 15. The learned magistrate erred in law and in fact in relying only on the evidence produced by the Prosecution which was insufficient to prove the guilt of the Appellant. 16. The learned magistrate erred in law in shifting the burden of proving innocence to the Appellant. 17. The learned magistrate erred in fact by completely ignoring all evidence and testimony by the Defense, and dismissing it all as mere denials. 18. The parties in this appeal agreed to dispose it by way of written submissions which this court has carefully analyzed below. **APPELLANT’S CASE** 1. The Appellant, challenged both conviction and sentence on the two counts he was found guilty of namely;- **i).** trading and dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019. **ii).** transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act. 1. The Appellant argued that the learned trial magistrate erred both in law and fact by finding that the prosecution had proved its case beyond reasonable doubt despite failure to establish the essential elements of the offences charged. 2. The Appellant further faulted the trial court for failing to consider that the LPG cylinders allegedly recovered were never physically presented or produced in court for purposes of identification and inspection and that the cylinders depicted in the photographs during trial did not bear the identifying marks allegedly placed on them by the investigating officer. 3. The Appellant further submitted that the trial court ignored testimony from prosecution witnesses who allegedly admitted that the Appellant was not a trader of LPG cylinders and that none of them had witnessed him trading in LPG cylinders. 4. It was also argued that the trial court failed to consider that the cylinders were never physically produced in court to ascertain whether they were indeed filled with LPG as alleged. 5. The Appellant additionally challenged the prosecution evidence on ownership of the cylinders, contending that none of the prosecution witnesses were employees or representatives of the respective brand owners capable of positively identifying the cylinders as belonging to those entities. 6. The Appellant further argued that the learned magistrate improperly relied on a disputed inventory which did not contain serial numbers capable of positively identifying the cylinders. 7. Further criticism was directed at the certificate accompanying the photographic evidence, which according to the Appellant failed to contain information relating to ownership, identification, or the status of the cylinders as either filled or empty. 8. The Appellant also faulted the trial court for allegedly failing to analyze the photographic evidence alongside witness testimonies and the chronology of events. 9. It was contended that the conviction was against the weight of evidence and that the trial court improperly shifted the burden of proof to the Appellant while at the same time dismissing the defence evidence as mere denials without proper consideration. 10. In setting out the applicable legal principles, the Appellant submitted on the duty of a first appellate court and relied on the decision in **OKENO VS. REPUBLIC [1972] EA 32**, where the court stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters vs. Sunday Post, [1958] E.A. 424”. 1. The appellant further relied on **DAVID NJUGUNA WAIRIMU VS. REPUBLIC [2010] EKLR**, wherein the Court of Appeal held: “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. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 1. The appellant submitted that the fourteen grounds of appeal could be condensed into several broad issues for determination. 2. On the issue of burden of proof, the Appellant argued that the prosecution failed to discharge its burden to the required standard of proof beyond reasonable doubt. 3. The appellant placed reliance on **Stephen Nguli Mulili v Republic [2014] eKLR**, wherein the court upheld the principle in **DPP V WOOLMINGTON, (1935) UKHL 1** in reaffirming that the burden of proof lies with the prosecution throughout criminal proceedings. 4. The appellant also cited **FESTUS MUKATI MURWA V R, [2013] eKLR** in support of that proposition. 5. The appellant further relied on Article 50(2)(a) of the Constitution concerning the presumption of innocence and cited the decision in **Republic v Ismail Hussein Ibrahim [2018] eKLR**, where Nyakundi J approved the holding in **Bakare Versus State 1985 2NWLR**, which stated: “Beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”. 1. The Appellant submitted that the trial court departed from this doctrine by shifting the burden of proof to the defence after finding that the Appellant’s evidence did not cast doubt on the prosecution’s case. 2. According to the Appellant, the prosecution was required to prove that he was actively trading and dealing in LPG cylinders without authorization and that he was transporting more than three filled LPG cylinders without the necessary EPRA license. 3. The Appellant contended that these elements were never proved because no evidence was produced showing that he possessed any trading license, registration documents, or business enterprise connected to LPG trading. 4. It was also submitted that no physical business premises linked to LPG cylinder trade were associated with the Appellant. 5. Counsel emphasized that the arrest occurred on a roadside while the Appellant was allegedly in transit and referred to the investigating officer’s evidence indicating that the Appellant was “on the way to trade” in the LPG cylinders. 6. The Appellant also submitted that the inventory did not indicate the actual weights of the cylinders to establish whether they were filled, despite this being central to count two. 7. On the issue concerning failure to present the LPG cylinders and motor vehicle in court, the Appellant reproduced the provisions of Regulation 4(1)(2) and Regulation 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 relating to licensing requirements for LPG business and transportation of more than three filled cylinders. 8. The Appellant argued that the prosecution relied solely on photographs produced by the CSI officer and the inventory marked as PEXH 4 without producing the actual cylinders before court. 9. The Appellant submitted that although prosecution witnesses alleged the cylinders were filled, no evidence was led regarding actual weight measurements or the average weight of empty versus filled LPG cylinders. 10. Counsel argued that the only proper method of establishing whether the cylinders were filled was through scientific measurement, which was never done. 11. It was further argued that both the Appellant and DW2 had testified that the cylinders were empty at the time of arrest and that the prosecution ignored this critical aspect of the defence case. 12. The Appellant observed that the investigating officer’s testimony that the cylinders were “heavy,” was not good evidence arguing that “a hand is not a unit of measure known in law.” Counsel therefore submitted that the probative value of the photographs was greatly diminished because they could not conclusively establish the contents or weight of the cylinders. 13. The Appellant further submitted that the serial numbers of the LPG cylinders were omitted from the inventory, thereby rendering identification impossible and fatally weakening the prosecution’s case. 14. Counsel also challenged the release of the motor vehicle registration number KBP 254N to the Appellant without a court order, terming the release unprocedural and prejudicial because the court was denied the opportunity to inspect the vehicle physically, particularly in light of the defence claim that the vehicle could not carry the alleged weight of filled cylinders. 15. The Appellant cited section 177(a) of the Criminal Procedure Code regarding restoration of property taken from an accused person. 16. The Appellant maintained that photographs alone could not establish the condition, contents, or weight of the cylinders where such elements were central to the offence charged. 17. It was further argued that neither the original exhibits nor expert measurements were presented before court and consequently the conviction under count two was unsafe. 18. Addressing the allegation of trading and dealing in LPG cylinders, the Appellant referred to the testimony of PW1, Clive Mutiso, who stated that certain motor vehicles, including KBP 254N, collected empty cylinders from retailers and transported them to refilling plants. 19. The Appellant highlighted portions of PW1’s cross-examination where he admitted that he did not know whether the Appellant was a retailer and that he had only profiled the vehicle and not the driver, and had not seen the Appellant supplying cylinders to retailers. The Appellant argued that this evidence corroborated his own testimony that he was merely transporting empty cylinders to a refilling plant when arrested. 20. The Appellant further argued that the prosecution produced no trade license, photographs of business premises, or evidence linking him to any LPG trading business. 21. The appellant thus urged this court to find that the offence of trading and dealing in LPG cylinders had not been proved to the required standard. 22. On the issue of the disputed inventory, the Appellant reviewed the testimonies of PW1, PW2, and PW5 regarding preparation and signing of the inventory. 23. The Appellant emphasized that while PW1 claimed the inventory was signed in the accused’s presence and PW5 alleged the accused signed it, PW2 admitted that he only verified and signed it later and was not present during arrest or seizure. 24. The Appellant reiterated his own evidence denying participation in preparation of the inventory and denying that the signature appearing thereon was his. Reference was made to Defence Exhibit 1 containing the Appellant’s signature as appearing on his national identity card. 25. The Appellant argued that once the signature was disputed, the burden shifted to the prosecution to call a document examiner to establish that the signature on the inventory belonged to the Appellant. 26. Counsel further submitted that the placement of the signature on top of the Appellant’s identification number suggested that it had been inserted as an afterthought, and urged the court to interpret that inconsistency in favor of the Appellant. 27. On whether the trial court considered the defence evidence, the Appellant submitted that the learned magistrate dismissed the defence as shallow and unbelievable without properly evaluating it. 28. Counsel emphasized that both DW1 and DW2 gave sworn testimony which was subjected to cross-examination and therefore carried significant probative value. 29. The Appellant maintained that the trial court failed to address contradictions in the prosecution case regarding the weight and serial numbers of the cylinders and further failed to consider that the Appellant had disowned the signature on the inventory. It was argued that the prosecution ought to have called a document examiner to clarify that issue. 30. In conclusion, the Appellant submitted that the conviction was unsafe due to alleged gaps, contradictions, inconsistencies, and falsehoods in the prosecution case. Counsel argued that the evidentiary burden had not been discharged and that the photographic evidence relied upon lacked conclusive probative value. 31. It was further submitted that even the trial magistrate acknowledged contradictions in the prosecution case and therefore the evidence ought not to have sustained a conviction. This court was consequently urged to quash the conviction, set aside the sentence, and set the Appellant at liberty. **RESPONDENT’S CASE** 1. The Respondent began by outlining the background of the matter, stating that the Appellant had been charged with two offences, namely dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and transporting LPG cylinders without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act 2019. 2. The Respondent submitted that the prosecution had called five witnesses after which the Appellant was placed on his defence. 3. It was stated that at the conclusion of the trial, the learned magistrate convicted the Appellant on both counts and sentenced him to a fine of Kshs. 10,000,000 in default to serve three years’ imprisonment. 4. The Respondent urged the court to find that the appeal lacked merit and dismiss it in its entirety. 5. The Respondent identified three issues for determination by the appellate court, namely whether all the ingredients of the offences had been proved, whether PW1 was a competent witness, and whether material witnesses had not been called. 6. On the question of whether the ingredients of the offences had been established, the Respondent reproduced section 99(1)(m) of the Petroleum Act 2019, which criminalizes refilling, rebranding, trading, or otherwise dealing with LPG cylinders of another licensee without prior written consent. 7. The Respondent also reproduced Regulation 17 of the Petroleum (Liquefied Petroleum Gas) Regulations concerning transportation of more than three filled cylinders without a valid license, Regulation 2 concerning undertaking LPG business without a valid license, Regulation 4 concerning unauthorized refilling of cylinders, and section 13(1) of the Regulations prohibiting filling LPG cylinders without authority from the brand owner. 8. The Respondent further referred to the Fifth Schedule to the Regulations providing for a penalty of not less than Kshs. 10,000,000 or imprisonment for five years for unlawful refilling, trading, or rebranding of cylinders without the brand owner’s consent. 9. The Respondent submitted that the essential ingredients requiring proof were trading or dealing with gas cylinders and lack of authority from the respective brand owners. 10. It was submitted that PW1 had testified that during a routine compliance check in Kawangware he investigated and established that gas cylinders were being illegally refilled. 11. PW1 allegedly identified motor vehicle registration number KBN 254P as supplying LPG cylinders and trailed it before intercepting it together with DCI officers. 12. The Respondent submitted that the officers found a large number of various brands of LPG cylinders in the vehicle without seals as reflected in the inventory produced before court. 13. Addressing the Appellant’s defence that he was merely transporting the cylinders and was not in possession of them, the Respondent submitted that the argument was contradicted by the evidence on record. 14. It was argued that possession of the cylinders was actual and undisputed because the cylinders were found in a vehicle owned by the Appellant and being driven by him at the time of arrest. 15. The Respondent argued that ownership and control of the vehicle constituted actual possession of its contents and that the Appellant could not distance himself from the LPG cylinders found in his own motor vehicle. 16. The Respondent further challenged the Appellant’s claim that he was merely an innocent transporter. Reliance was placed on the evidence of DW2, who according to the Respondent witnessed both the loading and offloading of the LPG cylinders into and from the Appellant’s vehicle. 17. It was submitted that DW2’s testimony elevated the Appellant’s role from passive transporter to active participant in the illegal refilling and distribution chain. The Respondent argued that the Appellant’s presence during both loading and offloading of the cylinders was inconsistent with innocence and instead demonstrated active participation in the unlawful enterprise. 18. The Respondent additionally argued that the circumstantial evidence against the Appellant was overwhelming. 19. It was submitted that the vehicle had been tracked from an illegal refilling site, intercepted while in possession of the LPG cylinders, and that the Appellant’s own witness had placed him at both the loading scene and the subsequent raid. 20. According to the Respondent, this chain of evidence irresistibly pointed to the Appellant’s guilt and was inconsistent with the theory that he was merely an innocent transporter. 21. In support of the use of circumstantial evidence, the Respondent relied on the case of **Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR**, where the Court of Appeal stated: “However, it is a truism that the guilt ofan accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -"It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial."” 1. The Respondent further reproduced the principles set out in the same case regarding the threshold for reliance on circumstantial evidence, namely that the circumstances relied upon must be cogently and firmly established and must point irresistibly to the guilt of the accused person. Reference was also made to **Abanga alias Onyango v R Cr. App. No. 32 of 1990**. 2. On admissibility of documentary evidence, the Respondent submitted that the trial court correctly relied on the certified photographs produced as PEXH 3 depicting the LPG cylinders and the motor vehicle. 3. The Respondent argued that the Appellant’s objection regarding failure to physically produce the cylinders and motor vehicle was unfounded in light of sections 76 and 106B of the Evidence Act, which permit reliance on demonstrative evidence such as photographs where properly certified. 4. It was submitted that the photographs had been authenticated and accurately depicted the cylinders and vehicle in question. 5. According to the Respondent, the trial court was therefore justified in relying on the photographs to conclude that the cylinders were recovered from the Appellant and that the vehicle had been used in commission of the offences charged. 6. The Respondent further submitted that the trial magistrate properly found the Appellant guilty because the evidence demonstrated that he actively aided commission of the offences by collecting LPG cylinders for purposes of unlawful refilling without the authority or consent of the brand owners. 7. It was argued that the Appellant’s conduct was not that of an innocent bystander but rather an active participant in the unlawful trade. 8. The Respondent maintained that the certified photographs sufficiently demonstrated that the cylinders were recovered from the Appellant and that the vehicle involved was connected to the offences despite not being physically produced in court. 9. Regarding the competency of PW1, the Respondent submitted that PW1, Clive Mutiso, was an employee of the Petroleum Institute of East Africa working in investigations and compliance and that PIEA represented eleven licensed LPG traders who had donated powers of attorney to the institute. The Respondent pointed out that twelve powers of attorney were produced in evidence as PEXH 2 at pages 15 to 62 of the record of appeal. It was submitted that the powers of attorney authorized PIEA to act on behalf of the victims in anti-counterfeit enforcement matters and related prosecutions. 10. The Respondent further submitted that PW1 gave direct evidence regarding his investigations and the complaints he had received concerning illegally refilled cylinders in Kawangware. 11. PW1 allegedly established that the cylinders lacked seals and identified the vehicle supplying LPG cylinders in the area. It was also submitted that PW1 established from the affected brand owners that no authority had been issued permitting refilling or sale of their cylinders. The Respondent therefore argued that PW1’s evidence was direct evidence arising from investigations conducted pursuant to valid powers of attorney and could not be dismissed as hearsay. 12. On the issue of failure to call material witnesses, the Respondent addressed the Appellant’s complaint that the prosecution failed to call brand owners, EPRA officers, and drivers of vehicles ferrying cylinders. 13. The Respondent relied on section 143 of the Evidence Act, which provides that no particular number of witnesses is required to prove any fact.The Respondent also relied on **Sahali Omar Versus Republic (2017) eKLR**, where the Court of Appeal held: “The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” 1. In conclusion, the Respondent submitted that the prosecution called sufficient witnesses who established the offences beyond reasonable doubt and that the prosecution was not obligated to call every conceivable witness. The court was therefore urged to dismiss the appeal and uphold both conviction and sentence imposed by the trial court. **ANALYSIS AND DETERMINATION** **DUTY OF THE FIRST APPELLATE COURT** 1. The duty of the first appellate court was succinctly elucidated in the case of **OKENO VS. REPUBLIC [1972] EA 32**, where the court stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters vs. Sunday Post, [1958] E.A. 424”. 1. This court abiding by that duty, examined the record of the lower court and subjected the evidence to a fresh and exhaustive re-evaluation to determine whether the evidence relied on by the trial court to convict the appellant was sufficient to establish the offenses he was charged with beyond a reasonable doubt. **WHETHER THE PROSECUTION ESTABLISHED ITS CASE BEYOND A REASONABLE DOUBT** 1. The prosecution called five witnesses in support of the case against the appellant. 2. PW1 Clive Mutiso, testified that he was the Head of Investigations and Compliance at the Petroleum Institute of East Africa (PIEA). 3. He produced his certified job identification card as PEXH 1. He explained that PIEA represented twelve member companies owning different LPG cylinder brands and had been granted powers of attorney by those companies to undertake brand protection, investigations, regulatory complaints, and court testimony on their behalf pursuant to the Petroleum Act 2019 and Legal Notice No. 100 of 2019. 4. He named the companies and brands as follows: Excellent Logistics (E-gas), Hashi Energy Limited (Hashi Gas), Total Kenya PLC (Total Gas), Vivo Energy Kenya Limited (Shell and Afri Gas), Rubis Energy Kenya Limited (K-Gas), Lake Gas Limited (Lake Gas), Ola Energy Kenya Limited (Mpishi cylinders), Galana Oil Kenya Limited (Del Gas), Proto Energy Limited (Progas and C-Gas), Tosha Petroleum Limited (Tosha Gas), Hass Petroleum Kenya Limited (Hass Gas), and National Oil Corporation Kenya (Super Gas and custodians of Gas Yetu cylinders). He produced twelve certified copies of powers of attorney and trademark certificates as PEXH 2. 5. PW1 stated that his duties involved compliance checks on LPG cylinders in the market to ensure that cylinders were refilled only by authorized brand owners, were within their revalidation period, and complied with regulatory standards. 6. He testified that in January 2021, while conducting compliance checks in Kawangware and Dagoretti, he discovered that retailers and wholesalers were heavily stocked with illegally refilled cylinders, many of which were defaced, lacked seals, and were past their revalidation dates. 7. The witness did not name the retailers and wholesalers that he said were heavily stocked with illegally refilled cylinders. 8. The witness did not also tell the court the action he took against such traders if at all there was any action taken either by himself or the Petroleum Institute of East Africa, 9. The witness did not also tell the court whether he reported those traders to the police, the brand owners or his institute for action yet it was his responsibility as per his testimony to carry out inspections and enforcement on behalf of the brand owners. 10. The evidence of the witness therefore indicates that he knew the retailers and wholesalers involved in the illegal trade but elected not to identify them to the court during his testimony. 11. The witness went on to state that his investigations established that motor vehicles collected empty cylinders from retailers, took them to unauthorized refilling plants, and returned them already filled for distribution to retailers. 12. The witness did not say how many vehicles, their registration numbers or even the owners. 13. He however, stated that one such vehicle identified was a white van registration number KBP 254N, which was allegedly seen going to unauthorized refill plants known as Keto Gas and Kaka Gas. PW1 testified that neither facility had authorization from any of PIEA’s members to refill their cylinders. 14. The evidence of Pw1 therefore does not establish that the appellant was trading or dealing but his role according to Pw1 was to transport the cylinders. 15. The offense in Count 1 created under Section 99(1) (m) of The Petroleum Acr 2019, involves refilling, rebranding, trading, or otherwise dealing with liquified gas. 16. A reading of the Section reveals that for a conviction under that provision of the law to be said to be safe, the prosecution must be able to prove one of the elements specified thereunder. 17. The accused must be shown to have been, at the time of the commission of the offense, doing any of the matters specified under subclause (m). Pw1 did not say that he witnessed the appellant refilling the liquified gas. 18. He also did not state that the appellant was engaged in rebranding or trading. The evidence of the witness therefore fell short of establishing any of the key ingredients of the offense under that section. 19. If the appellant was involved in the collection of empty cylinders for refilling, that cannot amount to refilling, rebranding or trading. 20. The fact that Pw1 admitted that the appellant was involved ion collecting empty cylinders goes to support the defense by the appellant that at the time of the arrest he was simply transporting empty cylinders. 21. It is baffling to this court that Pw1 who stated that he had the mandate to combat the illegal trade in liquified gas could leave identified retailers and wholesalers and waylay an innocent transporter on the way yet Section 99(1) (l) contains a very explicit provision for dealing with persons who own or operate an unlicensed petroleum or gas storage, filing or handling facility. 22. The appellant was not said to have owned or operated any such facility thus one can only wonder Pw1 targeted him for arrest and not the actual dealers whom he admitted knowing. 23. The evidence of Pw1PW1 was that upon checking EPRA’s records, he established that motor vehicle KBP 254N was not licensed to transport LPG cylinders. He then reported the matter to officers at Parklands Police Station attached to the Anti-Counterfeit and Anti-Contraband Unit on 28 January 2022. 24. Together with enforcement officers, they trailed the motor vehicle after observing it collect empty cylinders before proceeding to Keto Gas in Gitaru for refilling. 25. The evidence of Pw1 therefore corroborated that of the appellant that at the time of arrest he was in possession of empty gas cylinders. 26. The appellant testified that he simply hired to transport cylinders and that the cylinders were empty thus the offence of transporting liquified gas without a licence could not have been established. 27. The intention of the law cannot have been to criminalize transporting empty cylinders otherwise the words “liquified gas’’ would not have been included in the wording of the law. If that were to be so very many innocent men would find themselves in trouble with the law for transporting empty gas cylinders. 28. PW1 stated that photographs were taken by Scene of Crime officers in his presence. The six photographs were marked PMF1 3 (1–6). Photographs 1 and 2 depicted the loaded vehicle and its registration number, photographs 3 to 5 showed the cylinders arranged according to brands after offloading, and photograph 6 showed the rear loading area of the vehicle after offloading. 29. The cylinders were however not produced in evidence and the trial court was not told what became of the cylinders. The omission to produce the cylinders in evidence left a gaping hole in the evidence tendered by the prosecution in view of the fact that the appellant contended that he was transporting empty cylinders. 30. The production of the actual cylinders would have been important so as for the court to ascertain whether the cylinders were indeed filled with liquified gas or that they were empty since the appellant had denied ferrying any cylinders filled with gas. 31. The burden of proof in all criminal cases remains with the prosecution throughout the prosecution. It was incumbent upon them to prove that the appellant was dealing with liquifies gas without a licence and that he was involved in transporting the same without the necessary licence. 32. In **Woolmington vs DPP (1935) AC 462** the standard of proof which is required of the prosecution is that of “beyond any reasonable doubt”. The same position was restated **in Miller vs Ministry of Pensions, [1947] 2All ER** **372**. The question begging for an answer in the present case therefore is whether the ingredients of the offenses that the appellant was charged with were proven to the required standards. 33. The view of this court is that the prosecution failed to prove their case beyond a reasonable doubt. There was no evidence of trading adduced against the appellant and the prosecution witnesses, in particular Pw1, admitted that he knew the persons who were involved in the illegal trading but chose to pursue the appellant who was providing transport. 34. In **Kuria & 3 Others vs. Attorney General [2002] 2 KLR 69,** the court held that;**- “….the machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and individual vendetta. It is through this mandate of the court to guard its process from being abused or misused or manipulated for ulterior motives that the power of judicial review is invariably invoked so as to zealously guard its (the Court’s) independence and impartiality (as per section 77(1) of the Kenya Constitution in relation to criminal proceedings and section 79(9) for the civil process). The invocation of the law, whichever party in unsuitable circumstances or for the wrong ends must be stopped, as in these instances, the goals for their utilisation is far that which the courts indeed the entire system is constitutionally mandated to administer...** 35. PW1 in his evidence stated that the appellant had been involved in other cases thus it would appear even as the witness pursued the appellant to the point of arrest, he was pre-determined to have him prosecuted no matter the result and that goes to explain why the actual dealers known to Pw1 were not arrested and prosecuted alongside the appellant. 36. The prosecution of the appellant seems to have been pursued selectively and was clearly divorced from the goal of vindication of crime. It leaves this court baffled how Pw1 could simply pursue a person who was involved in transport business and avoid the arrest and prosecution of the actual dealers even after admitting that he knew them. 37. The case against the appellant on transporting liquified gas would have been solid had the prosecution not botched its own case by failing to produce the filled cylinders if. The deafening silence on what became of the seized cylinders left this court wondering whether the prosecution ever wanted the truth to ever come about whether the appellant was found in possession of filled cylinders. The prosecution owed the court an explanation as to what became of the cylinders. 38. Photographic evidence would only suffice to show cylinders but possession of gas cylinders alone would not constitute an offence without evidence that they were filled with gas. 39. The matter of the cylinders becomes even more critical when one considers the fact that the court was not involved in their disposal if indeed, they had any gas in them. 40. The appellant having said that the cylinders were empty at the time of interception, the evidence introduced doubt into the prosecution’s case who chose to rely on secondary evidence in the form of photographs other than the primary evidence of the gas cylinders. 41. It may be argued that to preserve the cylinders for production in court is tricky and dangerous but that does not lessen the prosecution’s duty to tender the best evidence. 42. Dangerous exhibits should immediately after seizure be brought to the attention of the court and a priority hearing to admit such evidence secured before their disposal. Where the investigating officer decides to deal with the exhibit excluding the court, then the prosecution assumes the risk of damaging their own case once a defense such as the one offered by the appellant is tendered. 43. I have noted from the record that there was no explanation offered for the none production of the cylinders thus the doubt introduced by the appellant in his defense should have gone to him. The defense raised a reasonable doubt as to the guilt of the appellant. 44. The standard and burden of proof is upon the prosecution to prove all the ingredients beyond all reasonable doubt. The High Court in Eldoret in [*Republic v Koech & Another*](https://kenyalaw.org/akn/ke/judgment/keelc/2024/212) (Criminal case 63 of 2019) [2024] KEHC 13581 (KLR) while reiterating the English law position on the principle of ‘reasonable doubt’ emphasized as follows: “It is the business of the prosecution to bring home the guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man may honestly and conscientiously entertain.” 45. In **Kioko versus Republic (1983) KLR 289**, the court of appeal held that the law does not require the accused to prove his innocence save in a few exceptional cases under Section 111 of the [Evidence Act](https://kenyalaw.org/akn/ke/judgment/keca/2018/743). The test remains that of beyond reasonable doubt not of any doubt at all. 46. The appellant dealt a fatal blow upon the prosecution’s case through his defense and the evidence of his witness by stating that he was carrying empty cylinders and the prosecution did not produce the cylinders before the court. 47. PW1 during cross examination stated that he did not know whether the accused was a retailer or owned a refilling plant. He clarified that he profiled the motor vehicle rather than the driver and admitted that he did not personally witness the accused supplying retailers. 48. The evidence of the witness cleared any doubt that the appellant may have been involved in the trade or dealing with petroleum gas. The evidence of Pw1 in that regard therefore rendered the conviction of the appellant on Count 1 unsafe. 49. Pw1 testified that under Legal Notice No. 100 of 2019, possession of more than three filled cylinders exceeding 80 kilograms of LPG deemed one to be a trader. 50. The prosecution should therefore have established beyond doubt that the appellant had in his custody more that 3 (three) filled gas cylinders at the time of arrest in order for him to be deemed to be a trader. 51. PW1 confirmed that the cylinders had been inventoried and photographed before storage and that the investigating officer remained the custodian of the exhibits. The investigator therefore should have ensured that the filled cylinders if any were produced for inspection by the court. He omitted to do so. 52. PW2, Erick Manyara, stated that he worked with the Energy and Petroleum Regulatory Authority (EPRA) as a Surveillance and Enforcement Officer with Staff Number 192. 53. On 1 February 2022, EPRA received a request from DCI Parklands to assist in investigations concerning an impounded vehicle allegedly involved in dealing with branded LPG cylinders without authorization. PW2, together with another officer, Edwin Njiru, visited DCI Headquarters where they found motor vehicle KBP 254N loaded with assorted branded LPG cylinders. 54. PW2 testified that upon checking EPRA licensing records, he established that motor vehicle KBP 254N was not licensed to transport LPG cylinders and that the accused, Julius Njuguna Chege, was not authorized to transport LPG cylinders by road. He confirmed the inventory dated 28 January 2022 marked PMF1 4 and identified the photographs marked PMF1 3 (1–6). 55. The evidence of the witness did not assist the court in anyway other that confirming the arrest of the appellant. 56. PW3, Chief Inspector Julius Ephraim Irungu, testified that he was attached to the National Forensic Laboratory at DCI Headquarters as a forensic CSI and chemistry expert. He stated that he held a Bachelor of Science degree in Analytical Chemistry from Moi University, had served as a police officer for eleven years, and had six years’ experience as a forensic expert. He further testified that he was gazetted by the Office of the Director of Public Prosecutions under Gazette Notice No. 1145 dated 19 January 2023. 57. The witness simply produced the photographs that he took but did not say anything on the appellant’s alleged involvement in dealing or trading with liquefied gas. 58. PW4, No. 85788 PC Evans Randu, testified that he was previously attached to DCI Parklands before being stationed at DCI Pokot Central. He stated that on 28 January 2022, while in the company of fellow officers and officers from PIEA, they intercepted motor vehicle KBP 254N, a white Toyota TownAce, at Uthiru Market. 59. The vehicle was being driven by the accused and was loaded with various LPG cylinders of different brands. The accused was asked to produce consent from the cylinder owners authorizing him to trade in the cylinders and also a license from EPRA authorizing transportation of LPG cylinders, but he failed to produce either. 60. During cross-examination, PW4 admitted that he did not know whether the accused was selling the cylinders and only confirmed that he was transporting them. 61. He stated that the investigating officer would determine whether the accused was trading in the cylinders. He further admitted that the motor vehicle had not been produced in court although it ought to have been brought as evidence. He stated that he did not personally offload or mark the cylinders and did not participate in preparing the inventory, but witnessed the process in the accused’s presence. 62. The witness just like Pw2 and 3 did not link the appellant to any form of trading or dealing. 63. The evidence of this witness taken together with that of Pw1 left the court without any evidence of dealing or trading. The conviction of the appellant in count 1 was therefore not supported by any evidence. 64. PW5, No. 83034 Commander Paul Mutethia, testified that he was formerly attached to DCI Parklands and was the investigating officer in the matter. He stated that upon intercepting the accused, they found the vehicle loaded with LPG cylinders of different brands. The accused failed to produce documents authorizing him to trade in the cylinders or a valid EPRA license authorizing transportation of LPG cylinders. The accused was arrested and escorted to DCI Headquarters where Scene of Crime personnel photographed the vehicle and cylinders. 65. PW5 testified that he prepared the inventory dated 28 January 2022, later produced as PEXH 4. He listed the cylinders recovered as including eighteen 6kg K-Gas cylinders, six 13kg K-Gas cylinders, fourteen 6kg Total Gas cylinders, three 13kg Total Gas cylinders, seven Hass Gas cylinders, three 13kg Afri Gas cylinders, three 6kg Sea Gas cylinders, one 6kg cylinder and one 13kg Hola Mpishi cylinder, three Cili Gas cylinders, seven Mid Gas cylinders, three Dela Gas cylinders, one Hass Gas cylinder, one Wanjiku cylinder, one oval tanker cylinder, one Orange Gas cylinder, one Energy Gas cylinder, another Orange Gas cylinder, and one defaced cylinder. 66. PW5 further testified that he wrote to the National Transport and Safety Authority seeking ownership details for motor vehicle KBP 254N. He received a report dated 14 March 2022 confirming that the registered owner was Julius Njuguna Chege. The request letter marked PMF1 6 was produced as PEXH 6, while the NTSA report was produced as PEXH 5. PW5 identified the accused in court as the person arrested and later charged. 67. During cross-examination, PW5 stated that the information leading to the arrest had been received from complainant personnel including Clive Mutiso Pw1. 68. He confirmed that the accused was found transporting assorted filled cylinders and was allegedly on his way to trade with them. He clarified that he personally prepared the inventory at DCI Headquarters while PW1 and PW4 witnessed the process. He stated that the cylinders were filled, although it was not possible to determine that from photographs alone. 69. The admission by Pw5 that it was not possible to determine from the photographs to tell whether the cylinders were filled exposed the weakness of the prosecution’s case in regard to the charge of transporting liquified gas cylinders, it would have been easy for the court to confirm the status of the cylinders had the prosecution produced the in evidence since the evidence was contradictory in this regard and the defence alluded to the cylinders being empty at the time of interception. 70. PW5 admitted that the motor vehicle had been released to the accused after photographs were taken and that no formal court application for its release had been made. He stated that the photographs were considered sufficient evidence. The witness confirmed through his evidence that the investigating officer chose to decide on what evidence he considered relevant and what to exclude. 71. The law under Section 121 of the **Criminal Procedure Code** provides;- **S.121 Detention of property seized** **(1)** **When anything is so seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation**. **(2)** If an appeal is made, or if a person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial. **(3)** If no appeal is made, or if no person is committed for trial, the court shall direct the thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise. 1. The legislature in its wisdom so the need to empower the police to detain properties seized for purposes of their presentation in court as evidence. Where the case against the accused person turns on the evidence of the thing seized, the arresting officer and the investigator are under duty to present that thing in court during the trial and any failure to do so must be sufficiently explained otherwise the omission to present such an exhibit would be presumed to be that, had the exhibit been presented, it would have worked against the prosecution case. 2. DW1, Julius Njuguna Chege, the accused person, who gave sworn evidence before the court. 3. The accused stated that on the material day he had been contacted by one of his customers to collect gas cylinders from the customer’s residence for transportation to Industrial Area for refilling, which he claimed was part of his regular transport business. 4. He maintained that all the cylinders found in the vehicle were empty and belonged to members of the Petroleum Institute of East Africa. He denied being in possession of the cylinders for purposes of trade and insisted that he was merely transporting them. 5. DW1 testified that after his arrest he was taken to DCI Headquarters where the motor vehicle was offloaded. 6. According to him, all the cylinders were empty at the time. He further stated that the cylinders had been marked using a marker pen to identify them and that he personally placed tick marks on the cylinders. 7. Upon being shown the photographs earlier produced in court, he stated that he could not see the marks he had allegedly placed on the cylinders and further claimed that he had not been present when the photographs were taken. 8. He also stated that the physical cylinders had not been produced before court and that the motor vehicle was no longer at DCI custody because officers later realized that the cylinders were empty and released the vehicle to him after two days. 9. The evidence of the release of the motor vehicle to him remained uncontroverted and the investigating officer did not explain why the vehicle was released before production if indeed it had been used as an instrumentality of crime in the commission of the offences the appellant faced. 10. The accused further challenged the inventory produced by the prosecution, stating that it had not been prepared in his presence. He denied signing the inventory and asserted that the signature appearing on the document was not his. In support of that claim, he referred to his identity card signature, which was produced as Defence Exhibit 1 (DEXH 1). 11. During cross-examination by the prosecution, DW1 admitted that he worked in the transport industry and that he transported cylinders for customers depending on orders received. 12. He confirmed that on 28 January 2022 he had been in Dagoretti collecting cylinders from one of his clients and admitted that he had collected between fifty and sixty cylinders. He stated that the cylinders were EDA cylinders and insisted that all were empty. He further admitted that he was using motor vehicle registration number KBP 254W, which he acknowledged was the same vehicle appearing in the prosecution photographs and that the vehicle was registered in his name. 13. DW1 testified that he had collected the cylinders from one Josephat Kioko, although he admitted that there was no written contract for the transport arrangement and that the agreement was purely oral. 14. He also acknowledged hearing prosecution testimony that full cylinders were required to have seals. He maintained that his vehicle could not carry the alleged load described by the prosecution because of weight limitations and reiterated that he had never signed the inventory document. 15. During re-examination by the defence, DW1 stated that the EDA cylinders had never been returned to him after the arrest. 16. The prosecution did not tell the court either what became of the cylinders they had impounded from the appellant. 17. He further testified that his vehicle was only permitted to carry 600 kilograms, whereas the combined weight of filled gas cylinders and gas contents would exceed 1,000 kilograms. He therefore maintained that the vehicle could not have been carrying filled cylinders as alleged by the prosecution. 18. The evidence of the appellant on the matter of weight was critical considering that the motor vehicle used to transport the cylinders was not produced and so were the cylinders. The issue he raised about the capacity of the motor vehicle was relevant and the court would have been able to ascertain whether the vehicle used had the capacity to carry as many cylinders full of gas. 19. The omission by the prosecution was fatal for the issue of weight cast doubt as to whether the vehicle had capacity to carry such weight thus the charge of transporting liquified gas in the absence of positive evidence that the cylinders were filled with gas would not hold. 20. The prosecution ought to have proved beyond doubt that the number of cylinders recovered fully filled with gas would have been able to be transported using the motor vehicle that the appellant had. 21. The prosecution failed to establish this key aspect thus the conviction for transporting liquified petroleum without a licence was not proved. 22. The prosecution did not establish its case beyond a reasonable doubt in both counts thus the conviction was unsafe. 23. Upon an exhaustive examination of the defence tendered by the appellant and his witness against the evidence by the prosecution, this court finds that the appeal has merit and is hereby allowed. The conviction against the appellant on both counts is quashed and the sentence set aside. 24. The appellant shall immediately be set at liberty unless otherwise lawfully held. 25. It is so ordered. **DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 27TH day of JULY 2026**. **A. M. MUTETI** **JUDGE** **In the presence of:** Court Assistant: Habiba Kung’u for Appellant Mogere/Naulikha for Respondent Appellant present