https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9799

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCRA/E025/2025 SAMUEL OBIERO OMINO VS ODPP **JUDGMENT** ***(Being an Appeal from the Judgment, findings an Order of Resident Magistrate, Jackline Wekesa Mukhwana in a Judgment delivered on 11th day of February, 2025, in the Senior Resident Magistrate’s Court at Kisumu Criminal Case No. E 405 OF 2021, Dickson Okange Malit and 3 Others -vs- Republic)*** **A. INTRODUCTION/ BRIEF FACTS** 1. The accused persons in the trial court, Dickson Okange Malit, Samuel Obiero Omino, Cynthia Akinyi Otieno and Mary Awino Owala, 1st-4th accused persons respectively, were all charged with conspiracy to commit a felony contrary to Section 393 of the Penal Code; *On diverse dates between 25th July 2020 and 3rd May 2021, in Kadibo Division of Nyando Sub-County within Kisumu County jointly conspired to commit a felony namely, stealing, and did stole Three hundred and Forty One Bales of Mosquito Nets valued Kenya Shillings Seventeen Million and Fifty Thousand (17,050,000/=) the property* *of Kenya Government.* The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 1/13 2. On Count II, Dickson Okange Malit, was charged with stealing by a person employed in the Public Service Contrary to Section 280 of the Penal Code; *On diverse dates between 25th July, 2020, and 3rd May, 2021, in Kadibo Division* *of Nyando Sub-County within Kisumu County being a person employed in the public service as a Clinical Officer in charge of Rabuor Sub County hospital, jointly with others not before court stole One Hundred and Sixty bales of mosquito nets valued at Kenya Shillings Eight Million (8,000,000) the property of Kenya Government which came into your possession for safe custody by virtue of employment.* 3. On count III, Cynthia Akinyi Otieno and Samuel Obiero Omino were charged with stealing by persons employed in the Public Service Contrary to section 280 of the Penal Code; *on 3rd May 2021, in Nyangande Sub County Hospital, within Kisumu County being persons employed in the public service as Public Health Officers in charge of Anti-Malaria mosquito nets distribution to the community within Kabonyo Kanyagwal area, jointly, with others not before court stole One Hundred and Eighty One bales of mosquito nets valued at Kenya Shillings Nine Million and Fifty thousand (9,050,000/=) the property* *of Kenya Government which came into your possession for distribution to the community by virtue of your employment.* 4. In the alternative Charge, Mary Awino Owala was charged with handling stolen property contrary to section 322 (1) (2) of the Penal Code; *On the 14th day of May 2021 at Obunga/ USAID Estate in Kisumu town within Kisumu County otherwise than in the course of stealing dishonestly retained nineteen bales of Kenya Government mosquito nets knowing or having reasons to believe them to be stolen property.* 5. The prosecution called a total of 12 witnesses, the case proceeded for hearing, and the learned trial magistrate, after carefully analyzing the evidence and testimonies in her judgement, pronounced herself as follows; ***The evidence adduced by the Investigating Officer is that the 4th Accused was found to be in possession of one of the missing bales of nets and was arrested. The said bales were produced as exhibits. In the absence of a reasonable explanation to show how the 4th accused*** The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 2/13 ***came to be in possession of the said bales which have been recently stolen, she is found to be guilty as charged in the alternative charge.*** ***In conclusion, in view of the above, I find the first three accused persons to be guilty in the main count together with the 2nd and 3rd counts respectively. Accused No. 4 is acquitted of the 1st count under section 215 of the CPC but convicted in the alternative charge.*** 6. The learned trial magistrate after listening to the mitigation grounds, sentenced the accused persons as follows; on Count I, each accused person with the exception of the 4th Accused is sentenced to pay a fine of Kshs. 300,000/= in default 4 years in jail; for count II, the first accused, Dickson Okange is sentenced to pay a fine of Kshs. 200,000/= in default 3 years in jail and for count III, the 2nd and 3rd accused persons are each sentenced to pay a fine of Kshs. 200,000/= in default 3 years in jail and for the alternative charge, the fourth accused is sentenced to pay a fine of Kshs. 300,000/= in default 4 years in jail. 7. Samuel Obiero Omino and Cynthia Akinyi Otieno (2nd and 3rd Accused respectively), being dissatisfied with the judgment of the trial court appealed on the same, hence the appeal at hand. The following grounds were raised for appeal; *1. The trial court erred in both law and facts in failing to appreciate evidence of fabrication thereby failing to independently, re-evaluate and analyze the evidence on record as to arrive at its own findings* *a. The Appellant Cynthia Akinyi Otieno had no burden of proving her innocence.* *b. The Circumstances leading to the incident is shrouded in unconfirmed reports, inventory and events.* *2. The trial is a nullity and or void given that the court failed to appreciate the background of the matter as to who stands to benefit from the confinement of the Appellant.* *3. The evidence on record was not sufficient to attract the conviction and sentence given that;-* *a) The issue of the occurrence of the offence was not established beyond reasonable doubt.* *4. The circumstancial evidence relied upon by the prosecution fell below the legal threshold of such evidence and thus could not have been the* The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 3/13 *basis of a sound conviction in the circumstances.* *5. The learned trial magistrate did not comply with section 169 of the Criminal code writing the judgement.* *6. The sentence imposed is manifestly high, harsh and excessive in the circumstances.* 8. This is the first appellate court and as held in the matter of **Okeno v R (1972) EA 32, the Court of Appeal for East Africa** laid down that**“*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 but bearing in mind that it never saw the witnesses testify.*** **B. SUBMISSIONS BY PARTIES** **Appellants’ Submissions** 9. Aggrieved by the decision of the trial court, the Appellants filed their written submissions dated 18th May 2026, in which they identified the following issues for determination: a. Whether or not the prosecution has proved its case beyond reasonable doubt against the Appellants on both counts. b. Whether the sentence should be set aside. 10. With respect to Count I, namely Conspiracy to Commit a Felony Contrary to Section 393 of the Penal Code, the Appellants submitted that the prosecution failed to establish the essential elements of the offence. They relied on ***Lawrence Gitau Karanu v Republic (2020) eKLR***, where the court held that the central ingredient of the offence of conspiracy is the existence of an agreement or meeting of minds between two or more persons to commit an unlawful act. 11. The Appellants contended that it was incumbent upon the prosecution to prove that they, together with their co-accused persons before the trial court, had formed a common design and agreed to steal the mosquito nets, thereby giving rise to the alleged conspiracy. The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 4/13 12. The Appellants further addressed the issue of common intention under Section 21 of the Penal Code. They submitted that none of the twelve prosecution witnesses adduced evidence demonstrating a meeting of minds among the four accused persons or establishing that they acted pursuant to a common intention to steal the mosquito nets in question. 13. Regarding Count II, namely Stealing by a Person Employed in the Public Service Contrary to Section 280 of the Penal Code, the Appellants submitted that the prosecution failed to prove that the mosquito nets allegedly stolen had been supplied by KEMSA and remained in stock between 25th July 2020 and 3rd May 2021. They argued that the prosecution only produced a letter dated 11th May 2021 from the DCIO, Nyando Sub-County, nineteen bales of mosquito nets marked as PEXH 2, and Form S11 Serial No. 98870 marked as PEXH 3. According to the Appellants, these documents originated from Nyabondo Sub-County Hospital and did not bear their names. Consequently, they submitted that no evidence was tendered to establish any supply of the mosquito nets to either Rabuor or Nyang'ande Health Facilities. 14. The Appellants further submitted that, although it was not disputed that they were employees of the Kisumu County Government, the prosecution failed to establish that the alleged stolen mosquito nets were government property. They maintained that no evidence was produced to show that KEMSA had supplied mosquito nets to either Rabuor or Nyang'ande Sub- County Hospitals. 15. In conclusion, the Appellants urged this court to find that the prosecution failed to prove the charges against them beyond reasonable doubt. They therefore prayed that the appeal be allowed, the convictions quashed, and the sentences set aside. **Respondent’s Submissions.** 16. In response to the Appellants' submissions, the Respondent identified the following issues for determination: a. Whether the prosecution proved its case against the Appellants beyond reasonable doubt; and b. Whether there were any material inconsistencies in the prosecution's case. The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 5/13 17. The Respondent relied on Section 347 of the Penal Code and further cited Rebecca Nabutola & 2 Others v Republic, Criminal Appeal No. 232 of 2012, in which the court held that, to establish the offence of conspiracy to defraud, the prosecution must prove the existence of an agreement and an intention to defraud. 18. On the element of the existence of an agreement, the Respondent submitted that the Appellants, together with the 1st and 3rd accused persons before the trial court, colluded and conspired to steal the mosquito nets. It was submitted that the evidence adduced by the prosecution witnesses demonstrated that the Appellants, the 1st accused, and the 3rd accused were together when they collected the mosquito nets for distribution. 19. The Respondent pointed out that PW4 testified to having seen the Appellants and the 3rd accused engage in a conversation shortly before the mosquito nets earmarked for distribution disappeared. Further, PW5 testified that the Appellant, who was the 1st accused before the trial court, reported to the hospital on 3rd May 2021, the day scheduled for the distribution of the mosquito nets, and opened the store despite being on study leave. 20. According to PW5, the Appellant thereafter declined to sign Form S11, alleging that some bales of mosquito nets had been stolen, notwithstanding the fact that he was the custodian of the store keys. The Respondent submitted that these circumstances demonstrated a coordinated plan between the Appellant and the 1st accused and were indicative of an agreement to steal the mosquito nets during the distribution exercise. 21. Regarding the element of intention to defraud, the Respondent submitted that PW6 handed over 403 bales of mosquito nets to the Appellant and the 3rd accused after they had jointly verified the stock. The two thereafter signed Form S11 acknowledging receipt of the 403 bales. The Respondent argued that their subsequent claim that some of the mosquito nets were missing was clear evidence of an intention to fraudulently deprive the rightful owner of the mosquito nets supplied by KEMSA. The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 6/13 22. The Respondent further submitted that the Appellant and the 3rd accused used a hospital ambulance to transport the mosquito nets for distribution. It was also submitted that, during the opening of the store, the Appellant was assisted by the 3rd accused and other health workers in removing the mosquito nets from the store, thereby demonstrating their active involvement in the handling and distribution of the stock. 23. In conclusion, the Respondent submitted that the appeal lacks merit and should be dismissed in its entirety. The Respondent urged the court to uphold both the conviction and the sentence imposed by the trial court. **C. ISSUES FOR DETERMINATION** 24. In line with the submissions from both the Appellants and the Respondent, the issues for determination that arise from the foregoing are as follows; i. Whether the Prosecution proved the Offence of Conspiracy to Commit a Felony Contrary to Section 393 of the Penal Code, beyond reasonable doubt ii. Whether the Prosecution proved the Offence of Stealing by Persons Employed in the Public Service Contrary to Section 280 of the Penal Code beyond reasonable doubt iii. Whether the Conviction was sound iv. Whether the Sentences Imposed should be upheld **D. ANALYSIS AND DETERMINATION** **(i) Whether the Prosecution Proved the Offence of Conspiracy to Commit a Felony Contrary to Section 393 of the Penal Code Beyond Reasonable Doubt** 25. The Appellants were convicted on Count I for the offence of conspiracy to commit a felony contrary to Section 393 of the Penal Code. Section 393 of the penal Code reads as follows, *any person who conspires with another to commit any felony or to do any act in any part of the world which if done in Kenya would be a felony, and which is an offence under the laws in force in* The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 7/13 *the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years or, if the greatest punishment to which a person convicted of the felony in question, is liable is less than imprisonment for seven years then to that lesser punishment.* 26. The burden rested upon the prosecution to establish beyond reasonable doubt that the Appellants entered into an agreement or common design with the other accused persons to commit the offence of stealing the mosquito nets. 27. Section 393 of the Penal Code criminalizes an agreement between two or more persons to commit a felony. The essence of the offence is therefore the existence of an agreement or meeting of minds directed towards the commission of an unlawful act. 28. In **Christopher Wafula Makokha v Republic [2014] eKLR**, the court, while citing Archbold's Criminal Pleading, Evidence and Practice, observed that: *The offence of conspiracy cannot exist without the agreement, consent* *or combination of two or more persons ... there must be agreement ... proof of existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused done in pursuance of an apparent criminal purpose in common between them.”* 29. Similarly, in **Republic v Anne Atieno Abdul & Others [2017] eKLR**, the court held that: *“Itis not enough that two or more persons pursued the same unlawful* *object at the same time or in the same place, it is necessary to show a meeting of the minds, a consensus to effect an unlawful purpose.”* 30. The court in **Abdi & Another v Republic (Criminal Appeal No. E033** **of 2020)** further acknowledged that conspiracy is ordinarily proved through circumstantial evidence and observed that: *“The intention of the conspirators cannot be supported by direct evidence ... The knowledge and involvement in the offence can be inferred from the conduct of the parties with a common desire to* The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 8/13 *commit a criminal act.”* 31. Guided by the foregoing authorities, the issue before this court is whether the evidence presented by the prosecution established the existence of a meeting of minds or common design between the Appellants and the other accused persons. 32. The evidence of PW1, PW2 and PW3 established that after reconciliation of stock records, it was discovered that 160 bales allocated to Rabuor and 181 bales allocated to Nyang'ande could not be accounted for. The prosecution therefore established that mosquito nets were missing. 33. However, the mere disappearance of the mosquito nets did not by itself prove the existence of a conspiracy. The prosecution was required to demonstrate that the Appellants and the other accused persons had agreed to steal them. 34. PW4 testified that he saw the 1st accused person speaking with the 1st Appellant (the 3rd accused before the trial court) before the store was opened. However, he did not hear the contents of their conversation and could not tell the court what was discussed. The evidence therefore only established that the two officers spoke to each other. 35. Applying the principles in **Republic v Anne Atieno Abdul & Others (supra)**, the fact that two officers involved in the same distribution exercise were seen talking cannot, without more, establish a meeting of minds to commit a felony. 36. PW5 testified that he found the 2nd Appellant together with the 1st accused and that they counted the mosquito nets in the stores. He further testified that the 1st accused declined to sign the S11 forms. While this evidence may raise concerns regarding accountability of the mosquito nets, it does not establish an agreement to steal them. 37. PW10 testified that he saw the 1st and 2nd Appellants transporting mosquito nets in an ambulance on 25th July 2020. However, the evidence on The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 9/13 record shows that the mosquito nets had been received for purposes of storage and eventual distribution. The witness did not state that the transportation was unauthorized or irregular. 38. Similarly, PW11 testified that he saw the Appellants loading mosquito nets from the store for distribution. Their involvement in the handling and transportation of mosquito nets was consistent with the duties assigned to them in the distribution exercise. 39. Although **Abdi & Another v Republic (supra)** permits a court to infer conspiracy from conduct, the conduct relied upon must point irresistibly to a common criminal purpose. In the present case, the conduct relied upon by the prosecution is equally consistent with the lawful performance of duties assigned to the Appellants. 40. Furthermore, apart from the nineteen bales recovered from the fourth accused person, none of the missing mosquito nets were traced to any of the Appellants. No evidence was adduced showing that the Appellants sold, concealed, diverted or benefited from the missing mosquito nets. 41. In the circumstances, this court finds that the prosecution failed to establish the essential ingredient of an agreement, meeting of minds or common design required to prove the offence of conspiracy to commit a felony. 42. Accordingly, the prosecution failed to prove Count I beyond reasonable doubt, and the conviction thereon cannot be sustained. **(ii) Whether the Prosecution Proved the Offence of Stealing by Persons Employed in the Public Service Contrary to Section 280** **of the Penal Code Beyond Reasonable Doubt** 43. The Appellants were also convicted under Section 280 of the Penal Code. To secure a conviction under that section, the prosecution was required to prove that: a. The Appellants were persons employed in the public service; The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 10/13 b. The property belonged to the Government or came into their possession by virtue of their employment; c. The Appellants fraudulently stole or converted the property; and d. They intended to permanently deprive the owner of it. 44. The evidence on record establishes that both Appellants were public officers involved in the mosquito net distribution exercise. The first ingredient was therefore proved. 45. The prosecution further adduced evidence through PW1, PW2, PW3 and PW6 that mosquito nets had been supplied for public distribution and that some of those mosquito nets could not subsequently be accounted for. 46. However, the prosecution was still required to prove that the missing mosquito nets were fraudulently taken or converted by the Appellants. 47. PW6 testified that he handed over mosquito nets after verification and execution of the relevant documentation. However, no evidence was led showing the exact point at which the mosquito nets disappeared or demonstrating that the Appellants had exclusive control of the mosquito nets at the time of the alleged theft. 48. During cross-examination, PW1 conceded that she had not produced documents showing the distribution and acknowledgment of receipt of mosquito nets by beneficiaries. She further admitted that she could not identify the specific batch numbers allocated to Nyando. 49. These admissions revealed significant gaps in the prosecution's case concerning the movement, distribution and accountability of the mosquito nets. The prosecution did not establish a complete chain of custody linking the missing mosquito nets to either Appellants. 50. No witness testified to having seen either Appellants steal, divert, conceal or dispose of the mosquito nets. Equally, none of the missing mosquito nets were recovered from either Appellants. The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 11/13 51. The evidence therefore fell short of proving that the Appellants fraudulently appropriated the mosquito nets or intended to permanently deprive the Government of the same. The court finds that while suspicion may arise from the disappearance of the mosquito nets, suspicion however strong cannot substitute proof beyond reasonable doubt. 52. Consequently, the prosecution failed to prove the offence under Section 280 of the Penal Code against either Appellant. **(iii) Whether the Convictions were sound** 53. Having re-evaluated the entire evidence as required in **Okeno v Republic [1972] EA 32**, this court finds that the evidence adduced by the prosecution did not establish beyond reasonable doubt either the offence of conspiracy to commit a felony or the offence of stealing by persons employed in the public service. 54. The convictions entered against the Appellants were therefore unsafe and cannot be allowed to stand. **(iv) Whether the Sentences Imposed Should Be Upheld** 55. In view of the findings reached above on conviction, it follows that the sentences imposed upon the Appellants cannot stand. **E. DISPOSITION** 56. Having discharged its duty as a first appellate court as set out in Okeno v Republic [1972] EA 32, and upon independently re-evaluating and re- analyzing the entire evidence on record, this court finds that the prosecution failed to prove the offences facing the Appellants beyond reasonable doubt. Consequently, the convictions entered against the Appellants were unsustainable in both law and fact and cannot be upheld. It therefore follows that the sentences founded upon those convictions cannot stand and this court therefore orders as follows; The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 12/13 (i) The appeal is hereby allowed. (ii) The convictions entered against the Appellants on Count I and Count III are quashed and the sentences imposed thereon are set aside. (iii) The Appellants are set free forthwith, unless otherwise lawfully held. It is so ordered. **On 7/7/2026 At 311.03 Am** Mr. Odumbe for the Appellants The Appellants had already paid the fines of Kshs. 500,000/- each. I pray that the same be refunded to the appellants. **Court:** The fines of Kshs. 500,000/- paid by each appellant is hereby refunded immediately. **Hon. Justice Abdi M Hassan, OGW** SIGNED BY/FOR: **★ T H E J U D I C I A R Y O F K E N Y A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Criminal Date: 2026-07-07 11:24:56 The Judiciary of Kenya Doc IDENTITY: 360109128137790800698324657085 Tracking Number:OOVJBV2026 13/13