https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8781

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **HCCRA NO. E058 OF 2025** **POLYCARP NYAKOYE ARINGO ………....……………..APPELLANT** **VERSUS** **REPUBLIC…………………………..…………..…………RESPONDENT** (*Being an appeal from the original conviction and sentence in Kisumu criminal case no. E1378 of 2021 by the Hon. E. A. OBINA, SPM*) **JUDGMENT** 1. **Polycarp Nyokaye Aringo** the Appellant herein was charged with a total of twelve (12) counts under the Energy Act No. 1 of 2019. 2. There are 4 counts of Vandalism of Energy Installation and Infrastructure contrary to Section contrary to ***Section 169(1) (b) of the Energy Act No.1 of 2019*** as listed in Counts 1, 4, 7 and 10 of the Charge sheet. 3. The particulars of the count 1 are that on the night of 4th and 5th October, 2021, at Ngere area in Seme Sub county within Kisumu Count, jointly with others not before court, vandalized energy installation and infrastructure being a 25KVA/33A transformer of Substation No. 38399 Make PME, valued at Kshs.256,656.31/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 1. The particulars of the count 4 are that on the night of 11th and 12th October, 2021, at Namba Okana in Nyando Sub county within Kisumu Count, jointly with others not before court, vandalized energy installation and infrastructure being a 200KVA/11A transformer of Substation No. 383756 Make PME, valued at Kshs.403,598.74/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 2. The particulars of the count 7 are that on the night of 16th and 17th October, 2021, at Bunde area in Nyando Sub county within Kisumu Count, jointly with others not before court, vandalized energy installation and infrastructure being a 315KVA/11A transformer of G. No. 16166, Substation No. 38363 Make Tanelec, valued at Kshs.2741,214.31/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 3. The particulars of the count 10 are that on the night of 18th and 19th October, 2021, at Nyamakora area in Nyakach Sub county within Kisumu Count, jointly with others not before court, vandalized energy installation and infrastructure being a 100KVA/11A transformer of G. No. 42113, Substation No. 8370 Make PME, valued at Kshs.392,668.64/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 1. There are 4 counts of Unauthorized disconnection of Electrical Apparatus contrary to Section contrary to ***Section 168(1) (d) of the Energy Act No.1 of 2019*** as listed in Counts 2, 5,8 and 11 of the charge sheet. 2. The particulars of the count 2 are that on the night of 4th and 5th October, 2021, at Ngere area in Seme Sub county within Kisumu Count, jointly with others not before court, disconnected electrical apparatus namely one 25KVA/33A transformer of Substation No. 38399 Make PME, from Electric Supply line through which electrical energy is supplied without the consent of Kenya Power & Lighting Company Limited, the licensee herein. 3. The particulars of the count 5 are that on the night of 11th and 12th October, 2021, at Namba Okana in Nyando Sub county within Kisumu Count, jointly with others not before court, disconnected electrical apparatus namely one 200KVA/11A transformer of Substation No. 383756 Make PME, from Electric Supply line through which electrical energy is supplied without the consent of Kenya Power & Lighting Company Limited, the licensee herein. 4. The particulars of the count 8 are that on the night of 16th and 17th October, 2021, at Bunde area in Nyando Sub county within Kisumu Count, jointly with others not before court, disconnected electrical apparatus namely one 315KVA/11A transformer of G. No. 16166, Substation No. 38363 Make Tanelec, from Electric Supply line through which electrical energy is supplied without the consent of Kenya Power & Lighting Company Limited, the licensee herein. 1. The particulars of the count 11 are that on the night of 18th and 19th October, 2021, at Nyamakora area in Nyakach Sub county within Kisumu Count, jointly with others not before court, disconnected electrical apparatus namely one 100KVA/11A transformer of G. No. 42113, Substation No. 8370 Make PME, from Electric Supply line through which electrical energy is supplied without the consent of Kenya Power & Lighting Company Limited, the licensee herein. 2. There are 4 counts of Stealing of Energy Equipment or Apparatus contrary to Section contrary to ***Section 169(1) (c) of the Energy Act No.1 of 2019*** as listed in Counts 3, 6, 9 and 12 of the charge sheet. 3. The particulars of the count 3 are that on the night of 4th and 5th October, 2021, at Ngere area in Seme Sub county within Kisumu Count, jointly with others not before court, stole one 25KVA/33A transformer of Substation No. 38399 Make PME, valued at Kshs.256,656.31/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 1. The particulars of the count 6 are that on the night of 11th and 12th October, 2021, at Namba Okana in Nyando Sub county within Kisumu Count, jointly with others not before court, stole one 200KVA/11A transformer of Substation No. 383756 Make PME, valued at Kshs.403,598.74/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 2. The particulars of the count 9 are that on the night of 16th and 17th October, 2021, at Bunde area in Nyando Sub county within Kisumu Count, jointly with others not before court, stole one 315KVA/11A transformer of G. No. 16166, Substation No. 38363 Make Tanelec, valued at Kshs.2,741,214.31/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 3. The particulars of the count 12 are that on the night of 18th and 19th October, 2021, at Nyamakora area in Nyakach Sub county within Kisumu Count, jointly with others not before court, stole one 100KVA/11A transformer of G. No. 42113, Substation No. 8370 Make PME, valued at Kshs.392,668.64/=, the property of Kenya Power & Lighting Company Limited, the licensee herein. 4. The accused pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 10 witnesses to prove its case. The Appellant was put on his defence and he denied committing the offence. He called one witness. 1. In his judgment, the trial Magistrate convicted the Appellant for the twelve counts which he had been charged with and after mitigation, sentenced him to serve five years on each of the counts. The trial Magistrate further ordered that since counts 4, 5, 6, 7, 8, 9, 10, 11 and 12 are built on Count 1, 2 and 3, then the sentences would run concurrently. This meant that the sentence in count 1, 2 and 3 will run concurrently, count 4, 5 and 6 will run concurrently, count 7, 8 and 9 will run concurrently and count 10, 11 and 12 will run concurrently and therefore the Appellant would serve a total of 20 years imprisonment. 2. Dissatisfied with the trial court’s judgment and sentence the Appellant filed the current appeal citing the following 7 grounds in the Amended grounds of Appeal: 3. *That the trial court erred in law and in fact in finding that the prosecution had proved the offence of Vandalism beyond reasonable doubts.* 4. *That the trial court erred in law and in fact by failing to find that it was fatal for the police not to have prepared an inventory of the items that were allegedly recovered from the Appellant or indicate in the initial report that there were recoveries.* 5. *That the evidence adduced by the KPLC officials was malicious and fabricated and ought not to have been used to convict the Appellant herein.* 6. *That the trial court erred in law and in fact by failing to find that the defence of the Appellant was credible and consistent with the initial report of Vandalism.* 7. *That the trial court erred in law and in fact by failing to find that the prosecution witnesses were not trustworthy as the entire evidence was full of contradictions and discrepancies.* 8. *That the trial court erred in law and in fact in finding a conviction that was against the weight of evidence.* 9. *That the trial court erred in law and in fact by passing a sentence of 20 years in the circumstances.* 10. The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. **Appellant’s Submissions** 1. The submission of the Appellant was that the investigations were not properly conducted and if proper investigations were to be done, the owner of motor vehicle registration number KCX 486K that had been allegedly used in the commission of the alleged offences should have been charged. The Appellant states that the owner of the vehicle had testified as PW1, but his driver who was said to have delivered the vehicle to the Appellant did not record a statement and did not testify in court. 2. He submitted that the trial court erred in directing that the sentence would run consecutively. He submits that the magistrate failed to consider the individual characteristics of the case and gave a consecutive sentence, therefore infringing on the right to dignity of the Appellant. 3. He further submitted that the phone that was recovered at one of the scenes was not his as it belonged to one Esther Mwaniki. He submitted that the prosecution had not told the court who Esther was and why they decided to arrest the Appellant instead of Esther. 4. The Appellant has also taken issue with the identification parade that was conducted. He stated that the parade was not properly conducted because the offences were allegedly committed in the night and the identifying witnesses had not seen the perpetrators of the offence. 5. On contradictions, he submitted that PW5 had stated that PW2 recovered the phone when he was responding to the distress call, yet PW2 had stated that he was going to the farm when he found the phone. 6. He submits that he would not have been an informer and at the same time vandalising the transformers. He submitted that the signals of his phone were found in the places as indicated by PW9, but this does not link him to the commission of the offence, and he was not arrested at the places where the signals were traced. 7. He submits that the exhibits that were produced in court were used in another trial in Nyamira Law Courts and after careful analysis of the evidence, he was acquitted. He therefore urged this court to acquit him of the charges. **Respondent’s Submissions** 1. The respondent submitted that PW2, PW3, PW5, PW6, PW7, had placed the appellant at the various scenes where transformers had been vandalized within Ngere area in Seme sub-county, Namba Okana area in Nyando sub-county, Bunde area in Nyando sub-county and Nyamaroka area in Nyakach sub county. They submitted that this is based on the signal of the telephone numbers that were linked to the Appellant being telephone numbers 0784315550, 0723688390 and 0708833998. 2. The Respondent submitted that although telephone number 0784315550 was registered in the name of Esther Mwaniki, upon analysis, the same number had received a message from the telephone number belonging to PW1 stating “unahitaji gari” meaning “do you need the car”. According to the Respondent, this was PW1 communicating with the Appellant who had been hiring his car for use. 3. The Respondent submitted that the evidence of PW8 (pg. 61-71 of the proceedings) corroborates the testimony of all the prosecution witnesses and clearly states that the Appellant was arrested because he was the registered user of the telephone numbers 0723688390 and 0708833998 and that the phone that was recovered from the scene at Namba Okana area where a transformer had been vandalized, (Pg 29 of the proceedings) had telephone number 0784315550, which the Appellant was using to communicate with the PW1. The Respondent urged the court to use call data produced in court by PW8 to place the Appellant at the scenes of the offences and link him to the commissions. 4. They submitted that all this evidence together with the items recovered from the houses of the Appellant at Ahero and Nyamira clearly demonstrate that the Appellant was part of a great syndicate involved in vandalizing and stealing transformers. **Analysis of the Trial Court Evidence.** 1. The role of this Court as the first appellate Court is well settled. It was held in the case of ***Okemo vs. R (1977) EALR 32*** and further in the Court of Appeal case of ***Mark Oiruri Mose vs. R (2013) eKLR*** that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 2. The Prosecution evidence is that the Appellant herein was part of a syndicate involved in vandalizing transformers within Kisumu. They called 10 witnesses to support their case. The evidence is that the telephone numbers that the Appellant was using were traced to the areas where vandalism had taken place and that the vehicle that the Appellant had been using, which had been hired from PW1 was equally seen at some of the scenes where the offences had taken place. 3. Although the Appellant had denied the offences and called a witness, the witness turned out to be an officer of the licensee and who stated that the licensee had been using him as a spy but it turned out that with his presence, there were increased incidents of vandalism. **Issues for Determination** 1. Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I will frame the following issues for determination: - 1. *Whether the offences of Vandalising, disconnecting and stealing of Energy infrastructure and installations being the particular transformers listed on the particulars of the charges herein had been proved against the Appellant, more so in relation to the identification parade.* 2. *Whether PW1 and one known as Esther Mwaniki were part of the people who had vandalised, disconnected and stolen the infrastructure and installations listed on the charges before court.* 3. *Whether the trial court erred in sentencing and in particular whether the sentences were excessively high in the circumstances.* 4. *Whether there were contradictions in the prosecution evidence that should vitiate the conviction herein.* ***Whether the offences of Vandalising, disconnecting and stealing of Energy infrastructure and installations being the particular transformers listed on the particulars of the charges herein had been proven against the Appellant, more so in relation to the identification parade.*** 1. It is not in dispute that the transformers in question being a 25KVA/33A transformer of Substation No. 38399 Make PME in Ngere area in Seme sub-county, a 200KVA/11A transformer of Substation No. 383756 Make PME in Namba Okana area in Nyando sub-county, a 315KVA/11A transformer of G. No. 16166, Substation No. 38363 Make Tanelec in Bunde area in Nyando sub-county and a 100KVA/11A transformer of G. No. 42113, Substation No. 8370 Make PME in Nyamaroka area in Nyakach sub county were vandalised, disconnected and stolen on the dates indicated on the charges. The prosecution availed evidence that power outage reports had been received and when officers of the licensees visited the scenes, they found the transformers vandalised. These were documented in the various OB numbers being OB number 04/12/10/2021 of Namba Okana police post, OB number 12/17/10/2021 of Ahero Police station and OB Number 06/19/10/2021 of Sigoti Police station. 2. As to whether the offences can be linked to the Appellant herein, evidence on record is that the Appellant’s telephone signal was traced to the various scenes at the time the offences are alleged to have taken place. At one of the scenes in Nyamaroka, a mobile phone was collected from the scene and it turned out that the sim card in the phone belonged the Appellant herein, as he had been communicating using it to PW1. The vehicle that the Appellant had been using, which he had hired from PW1 was also seen at some of the scenes and there is evidence to that effect. 3. Although the Appellant claims that he was not at the scene and was not involved in the commission of the offences, evidence on record demonstrates otherwise. It cannot be a coincidence that in every area where the Appellant was present, there would be vandalism of transformers, yet he was supposed to be the spy to ensure that the vandals are arrested. 1. Secondly, evidence on record is that although he had previously been engaged by the licensee as a spy, his services had been terminated when the incidences increased, instead of going down. It is not clear why then the Appellant continued to visit the various sub stations (as shown by the telephone signals) if he had no contract or engagement with the licensee. 2. The Appellant also challenges the identification parade stating that the offence took place at night. I have considered this argument and evidence on record is that the witnesses identified the person they saw chewing sugarcane and inspecting transformers not during the commission of the offence but the days before the commission. The witnesses did not state that they saw him stealing. The circumstantial evidence of being traced to a scene and the pattern of vandalism every time the Appellant was traced to a scene is relevant in the case before court. 1. My finding is that the prosecution had established that the equipment in question had been vandalised and stolen and the entire evidence on record clearly points at the accused person as the person who committed the offences in question. ***Whether PW1 and one known as Esther Mwaniki were part of the people who had vandalised, disconnected and stolen the infrastructure and installations listed on the charges before court.*** 1. The Appellant submitted that the owner of the vehicle should have been charged because his vehicle had been used for the commission. I have considered this evidence and there is evidence that the vehicle was hired to the Appellant. The prosecution produced in court the Appellant’s driving licence and ID card and stated that these were the documents submitted when the Appellant was being handed over the vehicle. There were Mpesa messages for the Appellant paying for the use of the vehicle. This evidence was never challenged. In those circumstances the owner of the vehicle cannot be said to have stolen. 2. On the person known as Esther Mwaniki, evidence on record is that although the sim card was registered in that name, the Appellant had been using the line and communicating with it to the PW1 as he hired the vehicle. Similarly, this is the line that the PW1 would use to communicate to the Appellant. The line therefore belonged to the Appellant. 1. In any event, even assuming that the line did not belong to him, but which is not the case, the charges before court are that the Appellant with others not before court. So that then the line could belong to any of the other suspects, who are not before court. 2. I find that the charges before court, even without PW1 and one Esther Mwaniki are properly before the court and the prosecution did not have to charge these other two individuals for the charges to succeed. ***Whether the trial court erred in sentencing and whether the sentences were excessively high in the circumstances.*** 1. The Appellant submitted that the trial court erred in directing that the sentence would run consecutively. I have considered this submission. What the trial Magistrate ordered was to the effect that for every set of offences, the sentence would be consecutive. So that for the offences committed in Seme the sentence would run consecutively with those committed in Namba Okana, Bunde and Nyamakora. 2. I take cognisance of the fact that the sets of offences were committed in different places and on different dates and affected different transformers. It therefore makes sense for the sentences to run consecutively, because the four sets of offences are all different transactions. I find that the trial Magistrate did not err in ordering that the sentences in the four sets of offences would run consecutively. 3. The Appellant further submitted that the sentence was excessive. ***Section 169 (1) (b)(c) (d), of the Energy Act No.1 of 2019*** is the penal Section for the offences. It provides for a fine of not less than five million shillings or to a term of imprisonment of ten years or to both such fine and imprisonment”. The trial court considered the appellant’s mitigation and meted out a sentence of five years. This sentence is legal and lawful according to the provisions of the Act, and this court will not interfere with it. 4. In any event, sentencing is always at the discretion of the trial Court. In the Court of Appeal case of **Bernard Kimani Gacheru vs. Republic [2002] eKLR** it was stated as follows: ***“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.”*** 1. In the circumstances, this court will not interfere with the sentencing discretion of the trial court and which in my view was exercised judiciously. ***Whether there were contradictions in the prosecution*** ***evidence that should vitiate the conviction herein.*** 1. On contradictions, the Appellant submitted that PW5 had stated that PW2 recovered the mobile phone when he was responding to the distress call, yet PW2 had stated that he was going to the farm when he found the phone. I have considered this submission. The important evidence here is that a phone was recovered and that the Appellant’s line was in the phone and that it linked him to the commission in that it is the line that he used to communicate with PW1 on the hiring of the vehicle. So that it is immaterial that PW5 may have state that the PW2 was answering a distress call when he recovered it. 1. He submits that he would not have been an informer and at the same time vandalising the transformers. I have considered this submission and my finding is that actually the Appellant leveraged on the fact that he was trusted by the licensee and he exploited the opportunity by becoming a vandal himself. It does not mean that because he was a spy, he couldn’t commit the offences. 2. He finally submits that the exhibits that were produced in court were used in another trial in Nyamira law courts and after careful analysis of the evidence, he was acquitted. I again have considered this submission. My comment would only be that each case is determined according to the evidence before court. I find that the evidenced that was adduced in the prosecution case herein was sufficient to found a conviction. I have not had the benefit of looking at the trial folder for the matter that was filed in Nyamira and it is not before me. 3. And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the twelve (12) counts as listed on the charge sheet, and I find no reason whatsoever to disturb the trial Magistrate’s findings. 4. **The upshot, is that I find that the appeal herein lacks merit and the same is dismissed. The conviction and sentence by the trial court are upheld.** It is so ordered. **JUDGMENT** delivered virtually, dated and signed at **Nairobi** This **19th** day of **June** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the presence of:** Lindsy – Court assistant Appellant – present in person *(virtually from Kisii Max.)* Ms Jebichi - for the State/Respondent.