https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/442

Republic v Mbunga (Criminal Case E141 of 2026) [2026] KEMC 442 (KLR) (10 August 2026) (Judgment) Neutral citation: [2026] KEMC 442 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E141 of 2026 AK Njeru, SRM August 10, 2026 Between Republic Prosecutor and Alphonse Omollo Mbunga Accused Judgment 1.The accused has been charged with the offence of handling energy equipment or an appliance contrary to section 169[1] [c] of the Energy Act. Particulars are that on the 3rd day of May 2026 at around 0200hrs at Busagwa area in Bunyala Sub County within Busia County, otherwise than in the course of stealing, accused dishonestly detained three KPLC meters Numbers 92106268466, 3716774623 and 46200803 knowing or having reason to believe it to be stolen, dishonestly assisted in retention, removal, disposal or realization by or for the benefit of himself or another person. 2.The accused denied the charge and the prosecution presented its evidence as follows: 3.PW1 Judith Babwa Ombere stated that she was awake in her early morning prayers when she suddenly heard footsteps near her bedroom window where her meter box is mounted. She peeped through the window and using the full moonlight present, saw a man’s figure with a gadget in his hand. The said man then took out his phone, lit the phone torch, took out a tester and began trying to open her meter box. She then loudly pretended to shout the name of her husband as if to call him yet her husband was away at the time so as to appear to alert him of the presence of a thief in their compound. the said man seems to have heard her screams and fled. The said man returned shortly after to collect a small bag he had left behind and that is when members of the public, responding to her distress call made earlier, surrounded the said man and apprehended him. the said man on interrogation, he revealed that someone had sent him to steal the meters. The area Assistant chief was alerted. He advised them to escort accused who is the said man to the police station where he was booked with his recovered meters. The accused did not manage to steal the meter but was in possession of other meters, which are before this court. before being escorted to the police station, accused led the group of people who had apprehended him to a posho mill where he had stolen one of the meters in his possession. One was at Mukhoma, the other one at Buyukhu which one Charles Oduori claimed ownership. 4.PW2 Charles Oduori Okoch stated to run a posho mill. On 2/5/2026, he worked at the posho mill and locked up at around 7.00pm and headed home. He stayed away from his business and returned on 4th to find his meter missing from its meter box. He reported the theft to the police vide OB No. 16/04/05/2026 and was issued with the OB number. Later on, police officers called him to the police station and asked him to confirm if any of the meters recovered from the accused were his; to wit, he recognized one of them as his from the meter number 37165774623. To confirm the meter as registered in his names, he further sought a confirmation of the same from Kenya Power and was issued with a letter confirming the same dated 4/5/2026. The accused is well known to him as his former classmate. When he saw accused arrested, he was surprised that he was the one who had stolen his meter. 5.PW3 124816 PC Bonface Munyao the arresting officer stated to have received around 5.00am on a date he could not recall accused who was brought to Ruambua Police station by members of the public on allegations of having been found stealing Kenya Power meters. PW1 reported seeing accused at her home trying to open her meter box to steal her meter and that is when she screamed for help. Members of the public surrounded her home and apprehended the accused, who had run into the nearby thicket but had returned to collect the items left at PW1’s homestead. The accused was found in possession of 3 meters bearing the serial numbers 46200803974,3716577423 and 92106268466. He rearrested the accused and handed over the meters to the investigating officer 6.PW4 87119 CPL Abiud Masinde, the investigating officer, stated that on 3/5/26 at around noon, he was instructed to collect a suspect from Ruambua Police Post by the OCS. He proceeded there and found the accused, who had been availed to the station by members of the public on allegations of having been found with 3 stolen meters. He escorted him to Port Victoria Police station and prepared the police file to that effect. Among the 3 meters found in possession of the accused, one of them belonged to a complainant by the name Charles Oduor Okech, who confirmed ownership vide a letter from Kenya Power. The same was number 37165774623. The other two meters found with the accused were numbers 46200803974 and 92106268466. He produced the three meters as Pex no. 1, 4 and 5 respectively, the letter from Kenya Power as Pex no. 2 and police abstract as Pex no. 3. 7.At the close of the prosecution’s case, the accused was found with a case to answer and placed on his defence. His evidence was as follows: 8.DW1 Alphonse Omollo Mbunga stated to understand the charges he faced. That on 3/5/2026 at around 10.00pm, he was heading home when he heard people screaming behind him. He looked back and saw people who caught him and began assaulting him. They brought with them a paper bag with 3 meters and alleged that he had stolen them. They then escorted him to Ruambua Police Station and reported the theft. He was not in possession of the stolen meters. He was framed for this offence. he had no grudge with any of the witnesses in this case. He knew PW2 from long ago and had no grudge with him at all. Analysis and determination 9.The issues for determination are:a.Whether the prosecution proved that the accused was in possession of the meters.b.Whether the meters were stolen energy equipment.c.Whether the accused knew or had reason to believe that the meters were stolen.d.Whether the defence displaced the prosecution case. 10.Section 169(1)(c) of the Energy Act criminalizes the stealing or handling of energy equipment or appliances. The same provides thus,“:A person who wilfully—(c)steals or attempts to steal any energy equipment or appliance or handles any energy equipment or appliance (otherwise than in the course of stealing) knowing or having reason to believe the equipment or appliance may be stolen, or dishonestly receives or retains the equipment or appliance, or dishonestly undertakes, or assists in its retention, removal, disposal or realization by or for the benefit of himself or another person or if he arranges to do so;commits an offence which is deemed to be an economic crime and shall, on conviction, be liable to 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. 11.The prosecution must prove that the items were energy equipment, that they were stolen, that the accused was found in possession or otherwise handled them, and that he knew or had reason to believe they were stolen. In Gitau v Republic [2025] KEHC 4204 (KLR) the court affirmed a conviction under section 169(1)(c) of the Energy Act where the evidence sufficiently proved theft of energy equipment. 12.The court has also considered the doctrine of recent possession. In Malingi Katana Malingi v Republic [1989] KEHC 109, the court held that where an accused is found in possession of recently stolen property, the burden shifts to him to explain the possession once the prosecution has proved the basic facts. The same principle was reiterated in MAHINGI V REPUBLIC (1989) KLR 225, where the court stated as follows:“By the application of the doctrine the burden shifts from the prosecution to the accused to explain his possession of the item complained about. He can only be asked to explain his possession after the prosecution has proved certain basic facts. Firstly, that the item he has in his possession has been stolen; it has been stolen a short period prior to their possession; that the lapse of time from the time of its loss to the time the accused was found with it was, from the nature of the item and the circumstances of the case, recent; that there are no co- existing circumstances which point to any other person as having been in possession of the items. The doctrine being a rebuttable presumption of facts is a rebuttable presumption. That is why the accused is called upon to offer an explanation in rebuttal, which if he fails to do an inference is drawn, that he either stole or was a guilty receiver”. 13.In Amwogo v Republic [2024] KEHC 10129, where the courts recognized that unexplained possession of recently stolen property entitles the court to draw an inference of guilt 14.I have carefully considered the evidence on record. PW1 gave a clear and consistent account of seeing a man at her compound at night attempting to interfere with the meter box. She was able to observe him in moonlight and further saw him use a phone torch. Her evidence was that after the man fled, he later returned to collect a bag, and it was then that members of the public apprehended him. Her account was not dislodged in material respects. 15.PW3 and PW4 corroborated PW1’s evidence that the accused was arrested by members of the public and found with three meters. PW2, the complainant, gave evidence that one of the recovered meters belonged to him and that he reported its theft promptly. His identification of the meter was supported by a Kenya Power confirmation letter. That evidence establishes that at least one of the recovered meters was stolen property, and the surrounding circumstances strongly support the conclusion that the other recovered meters were also unlawfully handled. 16.The doctrine of recent possession is directly applicable. The accused was found shortly after the theft in possession of meters that had been removed from compounds and a posho mill. He offered no credible explanation for that possession. His defence was a bare denial. Under the principles stated in Malingi Katana Malingi v Republic, Amwogo v Republic (Supra), the court is entitled to infer guilt where an accused is found in unexplained possession of recently stolen property. 17.The court has also considered the discrepancies in the serial numbers. PW3, and PW4 gave slightly different figures for some of the meter numbers, and the charge sheet also contains inconsistencies. However, the court is satisfied that these were clerical or transcription errors and not contradictions going to the root of the case. The substance of the evidence remained consistent: three KPLC meters were recovered from the accused very shortly after a theft, one of them was positively identified by the complainant, and the accused failed to offer a plausible explanation. In the circumstances, those discrepancies do not create reasonable doubt. 18.The accused’s conduct at the scene also strengthens the prosecution case. PW1’s evidence that the accused was seen trying to open the meter box with a tester, together with the recovery of the meters and the accused’s alleged admission that someone had sent him to steal them, supports the inference that he knowingly and dishonestly handled stolen energy equipment. The surrounding facts point irresistibly to guilty knowledge. The court therefore finds that the prosecution proved the mental element required under section 169(1)(c) of the Energy Act. 19.I have considered the defence as raised by accused. The same, in my considered view, does not raise any reasonable doubt. The accused did not explain how he came to be in possession of the meters, why he was at PW1’s compound at night, or why a complainant’s meter was later recovered among the exhibits. His claim that he was framed is unsupported and does not displace the prosecution evidence. 20.I am satisfied that the prosecution proved all the ingredients of the offence beyond reasonable doubt. The accused was found in possession of recently stolen energy equipment; one of the meters was positively identified by its owner, and the accused offered no credible explanation. The doctrine of recent possession applies and the evidence satisfies the requirements of section 169(1)(c) of the Energy Act. 21.Accordingly, I find the accused, Alphonse Omollo Mbunga, guilty of the offence of handling energy equipment or an appliance contrary to section 169(1)(c) of the Energy Act and I convict him under section 215 of the Criminal Procedure Code.Orders accordingly. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 10TH AUGUST 2026in the presence of accused, in Kiswahili the language he states to fully understand, Mr. Githinji the Prosecution Counsel and Mr. Masiga the Court Assistant.HON. ANNE NJERUSENIOR RESIDENT MAGISTRATE