Ismael v Republic (Criminal Appeal E016 of 2023) [2026] KEHC 11091 (KLR) (23 July 2026) (Judgment)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIMABU CRIMINAL APPEAL NO. E016 OF 2023 KAMUGISHA MUSTAFA ISMAEL ………………………………………………………APPELLANT VERSUS REPUBLIC ………………………………………………………..………………………… RESPONDENT (Being an Appeal against the Conviction and Sentence issued on 5th April 2023 by Kiambu Senior Resident Magistrate Court (Hon. Wilson Rading) in Criminal Case Number 2168 of 2021) JUDGMENT 1. In the lower court the appellant was charged with two counts; on count one he was charged with the offence of Stealing by Agent Contrary to Section 283 (b) of the Penal Code. The particulars of the offence were that between 8th October 2021 and 9th October 2021 at the Kenya Pipeline Company Eldoret Town Depot in Uasin Gishu County, within the Republic of Kenya, the appellant being a driver of motor vehicle registration No. KCY 135L/ZG5577 stole 44,000 litres of Motor Spirit Petroleum valued at Kshs. 5,706,800 being the property of Vivo Energy Uganda. 2. On count two he was charged with Malicious Damage to Property contrary to Section 339 of the Penal Code. The particulars of the charge were that between 8th October 2021 and 9th October 2021 at Malaba Boarder within Busia County within the republic of Kenya jointly with others not before the court, did intentionally burn a motor vehicle registration No. KCY HCCRA. NO.E016 OF 2023 JUDGMENT - Page 1 of 23 135L/ZG5577. 3. The appellant pleaded not guilty and in effort to prove the case the prosecution called 8 witnesses and after full trial the court convicted the appellant on both counts and sentenced him to 5 years on count 1 and 5 years on count 2 to be served consecutively. 4. Aggrieved by the aforesaid decision the appellant filed this appeal on 12th April 2023 raising 7 Grounds of Appeal; a. That the learned Magistrate erred in law and in fact by hearing and determining the matter when the court lacked jurisdiction in the first instance. b. That the learned Magistrate erred in law and in fact by convicting and sentencing the appellant on a defective charge sheet. c. That the learned Magistrate erred in law and in fact in admitting prosecution’s uncorroborated evidence that was marred with falsehood, discrepancies and inconsistencies. d. That the learned Magistrate erred in law and fact convicting the appellant based on his own evidence and facts as opposed to those produced and/or averred in court. e. That the learned Magistrate erred in law and fact by failing to consider that the prosecution failed to prove its case beyond reasonable doubt when defence evidence was compelling enough to cast doubt HCCRA. NO.E016 OF 2023 JUDGMENT - Page 2 of 23 f. That the learned Magistrate erred in law and fact by disregarding facts and evidence raised by the Appellant’s defense. g. That the learned Magistrate erred in law and fact by imposing harsh and capricious sentence. APPELLANT’S SUBMISSIONS 5. The appeal was canvassed by way of written submissions. The appellant submitted that the prosecution did not demonstrate that the appellant intentionally took petrol from Kenya Pipeline depot without the right to do so. He was an employee of the company discharging duties as a driver. The appellant further argued that it was not proved that he fraudulently converted the petrol for his own use. No documentation or money transaction was produced to validate the purported fraudulent transaction. In addition, no evidence was produced to support the allegation that he may have liaised with people on the ground. There was nothing shown that proved that he disconnected the surveillance system. 6. The appellant submitted that PW6 confirmed that he called to inform them that the truck was on fire. PW8 further did not investigate to find out what quantity of fuel was carried by the appellant. He did not produce any evidence to show how the fuel was processed, what type of fuel was carried and the quantities that were procured. He diverted his attention to the nationality of the appellant which was irrelevant in the circumstances. The appellant stated that he was never found in possession of stolen petrol that would infer guilt on his part. HCCRA. NO.E016 OF 2023 JUDGMENT - Page 3 of 23 7. It was the appellants argument that he was not accorded a fair trial as the court considered inadmissible evidence which led to his conviction. The videos exhibiting how the vehicle was burning should not have been admitted as they were not authenticated. There was no certificate of authenticity to show how the video was generated, stored and maintained. No evidence was produced as to which flammable substance was used to cause the fire. No evidence was produced to show whether there was an explosion. The appellant argued further that the trial court failed to notice that the figures of fuel volumes given by RIEFMS and E senor systems audit were inconsistent and unreliable since its origin was unknown. 8. The appellant submitted that there were inconsistencies with the prosecution case as it was not clear which type of fuel was procured by the appellant. It was also not clear what quantity of fuel was procured by the appellant. Some prosecution witnesses indicated that it was 44,000 litres while others indicated that it was 13,000 litres. In support the appellant cited Watu v Republic [2016] KECA 696 (KLR) where the Court held:- “The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of HCCRA. NO.E016 OF 2023 JUDGMENT - Page 4 of 23 inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.” 9. In his defence the appellant argued that he gave cogent testimony as he narrated to the court the entire process he undertook. He confirmed that he was transporting 44,000 litres of petrol and not diesel or kerosene and after loading the petrol he went to stabilization and calibration which involved a driver to dip a stick into the petrol already in the compartments to confirm the variation in temperature. The variance in density meant that it was only 43,924 litres of petrol transported from Kenya Pipeline a fact that was not rebutted by the prosecution. The appellant contended that the burden was on the prosecution to prove his guilt by producing compelling evidence which was not evident in this case. 10.The appellant in his supplementary submissions argued that the trial court did not have jurisdiction to hear and determine the matter. The appellant indicated that the alleged offence was committed in Uasin Gishu while the trial was conducted in Kiambu Law Courts. He argued that the court’s failure to establish or consider its jurisdiction before proceeding was a fundamental error that rendered the entire trial a nullity. The right to fair trial under Article 50(2) of the Constitution of Kenya includes the right to have adequate time and facilities to prepare a defence and to adduce and challenge evidence. The appellant being tried in a court outside the jurisdiction where the alleged offence occurred created logistical and HCCRA. NO.E016 OF 2023 JUDGMENT - Page 5 of 23 financial difficulties making it harder to summon witnesses who may be located far away. RESPONDENT’S SUBMISSIONS 11.The respondent alternatively submitted that the trial court had jurisdiction to hear and determine that matter on the basis of Section 72 of the Criminal Procedure Code which provides; “When a person is accused of the commission of an offence by reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.” 12.It was the prosecutions argument that while the offences occurred in Uasin Gishu County, they were investigated and charged in Kiambu where the appellant was arrested and Key witnesses resided. It thus vested the jurisdiction in Kiambu Court and the case was properly instituted and tried. 13.The prosecution submitted that they proved their case to the required standard. On count one the appellant was employed as a truck driver by Sibed Transport Company who has been contracted by Vivo Energy Uganda. Thus, Sibed Transport Company were agents of Vivo Energy and this an agency relationship was established. The appellant then came into possession of the petroleum as a result of the relationship. The prosecution argued that while there was no eye witness the circumstantial evidence brought out was sufficient to infer guilt on the part of the appellant. HCCRA. NO.E016 OF 2023 JUDGMENT - Page 6 of 23 14.On the second count the prosecution argued that ownership need not be strictly proved if the damage is established unlawful. The intent must be inferred from circumstances and failure to prove ownership id not fatal of other elements are met. The issue of a faulty braking system was never raised by any of the prosecution witnesses and the truck that the accused had was not one that had any mechanical issues or pending any service. In any case he would have reported this to be the case which he did not. 15.On the sentence the prosecution argued that the sentences issued were proportionate to the offences’ gravity as there was a substantial loss of Kshs. 5,706,800 plus vehicle destruction. In its sentencing ruling the trial court was guided by the Judiciary Sentencing Policy Guidelines, the mitigation offered by the accused as well as the facts of the case on arriving at the sentence. ANALYSIS AND DETERMINATION 16.I have considered the evidence of both the prosecution and the appellants and the issues for determination raised in this appeal are; a) Whether the trial court had jurisdiction to hear and determine the matter? b) Whether the prosecution proved Stealing by Agent Contrary to Section 283 (b) of the Penal Code to the required standard? c) Whether the prosecution proved malicious damage to property contrary to section 339 of the Penal Code to the required standard? HCCRA. NO.E016 OF 2023 JUDGMENT - Page 7 of 23 17.As this is the Appellant's first appeal, the role of this appellate Court is to re-evaluate the evidence and come to own conclusion, except to give allowance of the fact that it never heard the witnesses. In Okeno v R [1972] EA 32 at pg. 36 the Court stated, inter alia: “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 v R [1975] EA 336). 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.” 18.Similarly, the Court of Appeal held in Kiilu & Another v Republic [2005] KECA 335 (KLR) that; “An appellant on a first appeal was entitled to expect that 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 had to itself weigh conflicting evidence and draw its own conclusions.” 19.In other words, the first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is the function of this court as a first appellate court to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then HCCRA. NO.E016 OF 2023 JUDGMENT - Page 8 of 23 can it decide whether the magistrate’s findings should be supported. In doing so, if should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses. I now turn to the evidence adduced before the court. 20. PW1 Bernard Mwangi testified that the company put in place a tracking system which tracked the vehicles through OBC tracking. He indicated that that the system included KRA Gadgets that check the fuel system, training of drivers, fire prevention and first aid. He further indicated that BSmart monitors the system and that KCY 135L/ZG 5577 was assigned to the appellant to go to Eldoret Kenya Pipeline depot to load. On cross examination PW1 stated that there were four people monitoring the systems at any given time. At the time of loading the system indicated that it was working and then the system together with the cameras disconnected after a few kilometres, 15 minutes before the before incident around Malaba Town. 21.PW2 Mohamed Yusuf Adan told the court that he was the Operations Manager at Sibed Transport Company and that on 8th October he was together with PW1 in Mombasa when he was called by the appellant and informed that Vehicle Registration No. KCY 135L was burning. PW2 informed the court that the appellant informed him that the issue was caused by the truck’s brakes and that the fire broke out when the truck was parked. He advised the appellant to call the fire brigade and police as per procedure. It was PW2’s testimony that the fire brigade report stated that the truck was not full. He further indicated that if the truck had 44,000 HCCRA. NO.E016 OF 2023 JUDGMENT - Page 9 of 23 litres of fuel, then the explosion would have been bigger. 22.PW3 Mohamed Said Ishmael told the court that he was the managing director of Sibed Transport Company which operated a fleet of 400 units fitted with monitoring system which includes security videos. He added that before a driver is given a vehicle, they are given a member driver and are told not to interfere with the cameras. On 9th October 2021 he was informed of the incident. He testified that each tanker is fitted with a seal to show much fuel it has. On 9th October 2021 at 13:32 Hrs, the fuel sensor system indicated that it had 13 litres of fuel. It was indicated on record that at Kenya Pipeline Company depot 13,000 litres were loaded as opposed to the required order of 44,000 litres. 23.PW3 testified that the appellant has disconnected all the tracking units and cameras and put them back after the incident. On cross examination PW3 stated that pre departure inspection was mandatory and the appellant may have facilitated the people on the ground to avoid it. By the time of leaving the depot the truck had 13,000 litres which the appellant was support to verify compliance. He told the court that the accused drove slowly towards Malaba Border saying that there was something wrong with the vehicle. The appellant proceeded with the trip against the advice and direct instructions of his superiors. 24.PW3 was recalled to produce video recordings relating to the incident. The first video showed the truck burning with what appeared to be diesel and HCCRA. NO.E016 OF 2023 JUDGMENT - Page 10 of 23 kerosene as opposed to super petrol. The second video showed the truck not burning and that the fire could be managed and did not show the appellant climbing to open the manhole. The third video according to PW3 showed the appellant carrying kerosene jerricans which was used to ignite the fire. The fourth videos showed people talking to the accused after he had connected back the cameras. On cross examination PW3 indicated that the videos had no time stamps and they had been circulating via social media after the incident. 25.PW4 Joseph Muchiru a director at Bsmart Technologies Limited testified that there is a pre departure check procedure before a vehicle starts its journey. When the transporter is given an order to load then it goes to Bsmart to do a pre departure check to confirm all the Efuel sensors are working well. When confirmed the river goes to the oil depot to load then a KRA order will do an activating which starts the trip. PW4 indicated that as regards the subject truck he indicated that they did not conduct a pre departure check. PW4 testified further that during the fire incident the video surveillance system was disconnected and the device did not have an internal memory. 26.PW5 Paul Musembi testified that he worked in the Fire Brigade Department in Nairobi and that he had received communication from Sibed Transport Company to investigate the type of fire and probable cause of the fire. He travelled to Busia and did his report based on the videos that were supplied to him. It was his testimony that one can tell the substance that is burning by examining the smoke. In his report, he indicated that this HCCRA. NO.E016 OF 2023 JUDGMENT - Page 11 of 23 was a cased of suspected arson and the truck was not full because it did not explode. On cross examination he stated that he is an expert of fire and not petroleum and that a fuel taker would explode if full and his concern was mainly about the fire. 27.PW6 Peter Maweu Kimuli testified that worked at Sibed Transport Company in Eldoret which involved making sure that the vehicles have orders and are on the queue. On 8th October 2021 KCY 135L/ZG 5577 was assigned to the appellant. PW6 explained to the court the process of clearance from beginning to the end. PW6 indicated that on 8th October 2021 he got an order from Vivo still for PMS where Vivo Energy Uganda Limited wanted 44,000 litres of Super Petrol. The documents were given to the appellant who went to load fuel. 28.PW7 C.I Catherine Lumaria testified that she is attached to the DCI Forensics Laboratory which entails analysis of electronic media in form of computer disks, mobile devices and computer incident responses. They received an 8GB Flash Disk which they were to extract the videos and images and other relevant information. PW7 produced the exhibit containing the forensic reports and on cross examination indicated that the CD’s had 58 images and 6 videos which she copied into the CD. 29.PW8 Corporal Stephen Manyala testified that he is from DCI headquarters and that on 18th October 2021 they received a complaint from PW3 that truck KCY 135L/ ZG 5577 driven by the appellant was to carry 44,000 litres of Super Petrol that was to be delivered to Vivo Energy Uganda. The HCCRA. NO.E016 OF 2023 JUDGMENT - Page 12 of 23 complainant alleged that only 13,000 litres of petrol was loaded onto the truck and provided a sheet of what was contained therein. Investigations commenced where they visited KPC Eldoret and found that the CCTV cameras did not capture what happened. He indicated that the procedures at the depot had deficiencies. 30.PW8 testified that on investigating the appellant he found that he had documentation indicating that he was a national of 3 countries being Uganda, Tanzania and Rwanda bearing different dates of birth. On further investigation he got feed back from the Ministry of foreign affairs Rwanda that the ID’s were genuinely issued and that the appellant was a citizen of Rwanda. PW8 testified further that at the time of the fire investigation the truck was carrying kerosene and diesel as opposed to the super petroleum that was to be delivered to Vivo Uganda. That the failure to carry out pre departure check was meant to cover his tracks. 31. The trial court noted that at the hearing a truck similar to the subject truck herein was availed and the court took its time to inspect the same. A further experiment was done where there was a demonstration of how different fuel burn in this case Petroleum, Kerosene and Diesel. 32.DW1 Kamugisha Mustapha testified that he was born in Tanzania by parents holding Rwandan Citizenship. He worked for Sibed in Kenya as driver for almost 4 years. He has been a truck drive since 2019 and has a certificate of good standing. DW1 reiterated the process of entry into the KPC depot which started by producing his identification at the gate. He HCCRA. NO.E016 OF 2023 JUDGMENT - Page 13 of 23 indicated that the subject truck was loaded with 44,000 litres where compartment 1 was loaded with MSP 15,000 litres. Compartment 2 MSP 6,000 litres, compartment 3 MSP 6,000 litres, Compartment 4 MSP 6,000 litres, Compartment 5 MSP 6,000 Litres and Compartment 6 MSP 5,000 Litres. 33.DW1 testified that he developed mechanical problems on the trip to Busia to which he called the safety manager who advised him to reduce the speed, he was advised to open the wheel as the lining brace could be the problem. He did so and sent the video and photo. He told to proceed and he reached Webuye weighing bridge where there was a manual weighing bridge as the digital one was not working. He then proceeded to Malaba where after inspection he found that there were wires mid bailing. He asked for help. As the fire soaked the truck, he climbed up to open the top compartment while other people assisted him to lower the other tyres. At this point DW1 indicated that he was carrying 43,924 litres of fuel as compartment 1 showed 14,972 litres, Compartment 2 showed 5,987 litres, Compartment 3 showed 5,961 litres, compartment 4 showed 5,992 litres, compartment 5 showed 5,988 litres and compartment 6 showed 4,993 litres. 34.DW1 testified that there was no explosion when the truck caught fire as the fuel was vapour. He was able to open the compartments and as such there was no vapour to enable the explosion. The fire was caused by a mechanical problem that was caused by a workshop manager. DW1 told the court that he was informed that he would continue to work as the fault HCCRA. NO.E016 OF 2023 JUDGMENT - Page 14 of 23 was not on him. 35.DW1 I testified that he did not burn the vehicle and the fire was caused by a mechanical problem being the poor braking system. On cross examination he indicated that he did not tell the investigator that he had other citizenship and that he has not been trained as a mechanic. 36.The trial court after analysing the facts of the case found that the prosecution had proven their case beyond any reasonable doubt and convicted the appellant and sentenced the accused to 5 years on count 1 and 5 years on count 2 to be served consecutively. WHETHER THE TRIAL COURT HAD JURISDICTION 37.It is the appellants argument that the lower court did not have territorial jurisdiction to hear and determine the matter herein. He argued that the alleged offense occurred in Uasin Gishu and Busia counties yet the trial was conducted in Kiambu. The prosecution alternatively argued that while the offenses occurred in Uasin Gishu County they were investigated and charged in Kiambu where the appellant was arrested and key witnesses resided. 38.Section 72 of the Criminal Procedure Code makes provision for trials at the place the act was done or where the consequences of the offence ensues. It states as follows:- “When a person is accused of the commission of an offence by HCCRA. NO.E016 OF 2023 JUDGMENT - Page 15 of 23 reason of anything which has been done or of any consequence which has ensued, the offence may be tried by a court within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.” 39.In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR, the Supreme Court stated thus - “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011 where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be HCCRA. NO.E016 OF 2023 JUDGMENT - Page 16 of 23 within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” 40.It is the view of this court that the trial magistrate properly assumed territorial jurisdiction based on Section 71 of the Criminal Procedure Code. While the offense was committed in Busia County the appellant was arrested in Kiambu county which is within the jurisdiction of Kiambu Court according to Section 71 which provides; “Subject to the provisions of Section 69, and of the powers of transfer conferred by Sections 79 and 81, every offence shall ordinarily be tried by a court within the local limits of whose jurisdiction it was committed, or within the local limits of whose jurisdiction the accused was apprehended, or is in custody on a charge for the offence, or has appeared in answer to the summons lawfully issued charging the offence.” 41.Further the provisions of Section 380 of Criminal Procedure Code provide as follows- “No finding, sentence or order of a criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed took place in a wrong area, unless it appears that the error has occasioned a failure of justice.” 42.It is the view of this court that the appellant has failed to demonstrate how the hearing of this matter in the lower court resulted in a failure of justice and consequently based on the above provisions this court finds that the trial court had jurisdiction to the entertain the matter. HCCRA. NO.E016 OF 2023 JUDGMENT - Page 17 of 23 WHETHER THE PROSECUTION PROVED STEALING BY AGENT CONTRARY TO SECTION 283 (B) OF THE PENAL CODE 43.Section 283 of the Penal Code provides that; [283[. Stealing by agents, etc. If the thing stolen is any of the things following, that is to say— a) property which has been received by the offender with a power of attorney for the disposition thereof; b) property which has been entrusted to the offender either alone or jointly with any other person for him to retain in safe custody or to apply, pay or deliver for any purpose or to any person the same or any part thereof or any proceeds thereof; c) property which has been received by the offender either alone or jointly with any other person for or on account of any other person; d) the whole or part of the proceeds of any valuable security which has been received by the offender with a direction that the proceeds thereof should be applied to any purpose or paid to any person specified in the direction; e) the whole or part of the proceeds arising from any disposition of any property which has been received by the offender by virtue of a power of attorney for such disposition, such power of attorney having been received by the offender with a direction that such proceeds should be applied to any purpose or paid to HCCRA. NO.E016 OF 2023 JUDGMENT - Page 18 of 23 any person specified in the direction, the offender is liable to imprisonment for seven years. 44.The court of appeal in Ong’are Moguche v Republic [2019] KECA 323 (KLR) stated that; “The appellant was charged with stealing by agent contrary to Section 283 of the Penal Code. In our considered view, a charge under Section 283 of the Penal Code must be read together with the definition of theft in Section 268 of the Penal Code. The ingredients of the offence of stealing by agent include: i) There must be a property that is stolen within the definition and meaning of stealing as per Section 268 of the Penal Code. ii) There must be an agency relationship between an accused person and the complainant. iii) The property stolen must have been received by the accused person in any of the circumstances enumerated under paragraphs (a) to (e) of Section 283 of the Penal Code.” 45.On whether the appellant was an agent, it is not disputed that the accused was employed as a truck driver by Sibed and was assigned with transporting 44,000 litres of Super Petrol to Vivo Uganda. As a driver he was entrusted with passion of fuel with a specific purpose and therefore the relationship between the accused and Sibed satisfies the agency requirement. 46.On whether the 44,000 litres of petrol was received by the accused, on examination of the record PW4 indicated that the Pre departure check was HCCRA. NO.E016 OF 2023 JUDGMENT - Page 19 of 23 not done on the subject truck which would have confirmed that the truck was loaded with the 44,000 litres. The appellant in his testimony however admitted that he did indeed receive the 44,000 litres which were loaded into the truck and thereafter he proceeded with his trip. This court finds that this requirement was met as the appellant acknowledged receiving the consignment, based on the evidence produced the delivery was scheduled and the vehicle was dispatched for that purpose. 47.On whether the appellant dishonestly converted the fuel, the prosecution mainly relied on circumstantial evidence. They argued that the appellant intentionally failed to conduct the Pre departure check, the fire happened before delivery, PW5 indicated that the fire was arson and that the truck cameras stopped working during the incident and later resumed after the fire. 48.The court of appeal in Sawe v Republic [2003] KECA 182 (KLR) held that: “In our judgment, the evidence does not satisfy the legal requirements of circumstantial evidence to warrant or justify the conviction of the appellant on the basis of the evidence on the record. We are, therefore, unable to uphold the conviction entered by the learned trial judge. We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The prosecution must prove the case against the accused beyond any reasonable doubt. As this HCCRA. NO.E016 OF 2023 JUDGMENT - Page 20 of 23 Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No. 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge’s view that the prosecution had proved its case against the appellant beyond any reasonable doubt.” 49.This court is cognisant of the fact that the circumstances surrounding the disappearance of fuel and the destruction of the truck raise suspicion as the accused was in possession of the cargo, the truck was destroyed before delivery and the fuel appears not to have been present at the time of the fire. Suspicion however cannot replace proof. The prosecution did not give evidence before the court demonstrating how the accused removed the fuel, participated in its removal or benefited financially. There was further no evidence connecting the accused to any person who may have assisted in the alleged theft. 50.This court therefore finds that although the prosecution established that a pre departure check was not done and that the appellant was entrusted with the fuel, it failed to prove beyond reasonable doubt that he dishonestly converted it. The circumstantial evidence that was relied on by the prosecution did not form a complete chain pointing to the accused guilt. The charge of stealing by agent was therefore not sufficiently proved. WHETHER THE PROSECUTION PROVED MALICIOUS DAMAGE TO PROPERTY CONTRARY TO SECTION 339 51. Section 339 of the Penal Code provides as follows; HCCRA. NO.E016 OF 2023 JUDGMENT - Page 21 of 23 [339]. Malicious injuries to property (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years. 52.The high court in Chuchu v Republic [2018] KEHC 9710 (KLR) held that to prove malicious damage under Section 339 there should be; i) proof of ownership of the property. ii) proof that the property was destroyed or damaged. iii) proof that the destruction or damage was occasioned by the accused. iv) proof that the destruction was willful and unlawful. 53.The prosecution relied on circumstantial evidence and argued that the appellant was in possession and control of the truck at the time of the incident. The prosecution also relied on the fact that the surveillance cameras were disabled during the incident and resumed working after the fire was put out. They argued that the issue of the faulty braking system was not raised by any of the prosecution witnesses and that the subject truck did not have any mechanical issues or pending any service. 54.This court has considered these circumstances and although the accused was the driver in the present case and in full control of the truck the prosecution failed to provide evidence that showed that the accused was seen setting the truck of fire, found in possession of materials used to start the fire or deliberately interfered with the surveillance cameras. They also did not provide evidence that the appellant arranged for a third party to HCCRA. NO.E016 OF 2023 JUDGMENT - Page 22 of 23 destroy the truck or that he benefitted from the destruction. The evidence by PW5 indicated that the fire was deliberate but did not prove that it was the appellant that caused it. Consequently, this court finds that the prosecution failed to prove malicious damage to the required standard. 55.In light of the above the appeal dated 12th April 2023 is allowed and the conviction and sentence issued on 5th April 2023 in Criminal Case Number 2168 of 2021 is hereby set aside and substituted with an acquittal on both counts. 56.The Appellant is to be set at liberty immediately, unless otherwise lawfully held. Orders accordingly, filed closed accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 23RD DAY OF JULY 2026. …………………………………………………………… BAHATI MWAMUYE MBS JUDGE In the presence of: Mr. Ogonji for the Appellant Appellant is present at Ruiru Prison Ms. Muriu for the Respondent Court Assistant - Martin HCCRA. NO.E016 OF 2023 JUDGMENT - Page 23 of 23