Mutinda v Republic (Criminal Appeal E062 of 2025) [2026] KEHC 12180 (KLR) (29 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CRIMINAL CASE NO. E062 OF 2025** **REPUBLIC ................................................................................................... PROSECUTOR VERSUS** **ROBERT MAMBO MUTINDA .................................................................... APPELLANT** **JUDGEMENT** ***(Appeal from the original conviction and sentence dated 21st November, 2023 by Hon. S. Jalango, Senior Principal Magistrate, in SPMC at Tawa Criminal Case No. E110 of 2023)*** **1. Introduction** 1. The Appellant, Robert Mambo Mutinda was arraigned before the Senior Principal Magistrate’s Court at Tawa charged with the offense of ***Vandalism with intent to interfere with the operation of the Licensee contrary to Section 168(4)(b) of the Energy Act (No. 1 of 2019).*** 2. The particulars of the charge were that on 2nd November, 2023 at around 1500hrs along the Kalawani-Kikima Roads off Mbooni West Subcounty Hospital, in Mbooni West Sub County within Makueni County, with intent to interfere with the operation of the licensee Kenya Power and Lighting Company PLC, the the Appellant wilfully and unlawfully cut, damaged, and vandalized stay wire supporting high voltage transmission line valued at Kenya Shillings Fifty Thousand (KShs. 50,000/) under the control of Kenya Power and Lighting Company PLC (hereiafter, KPLC). 3. When the charge and its particulars were read and explained to the Appellant, he entered an unequivocal plea of guilty. 4. The Prosecution subsequently laid out the facts of the case, which the Appellant admitted to be true and correct. Consequently, the learned trial Magistrate regularly convicted the Appellant on his own plea of guilty in accordance with the tenets of ***Adan v. Republic [1973] E.A. 445***. 5. Following mitigation and the presentation of a pre-sentence report, the trial court sentenced the Appellant to serve the statutory minimum term of five (5) years' imprisonment. 6. Being agrieved by the severity of the sentence, the Appellant moved this Court by way of an Application dated 30th May 2024, which application was later recorded as an Appeal, appealing against the sentence. **2. The Appellant’s Case** 1. This appeal is brought strictly against the severity of the sentence pursuant to the restrictive proviso of **Section 348 of the Criminal Procedure Code (Cap 75)**. 2. The Appellant submitted that; 3. *the learned trial Magistrate erred both in fact and in law by adopting a rigid and mechanical approach to sentencing.* 4. *by enforcing the absolute statutory baseline of five years, the trial court failed to grant a progressive "sentencing discount" to reflect the Appellant’s instant plea of guilt and his expression of profound remorse.* 5. *the trial court failed to properly weigh the personal circumstances of the Appellant as a youthful first-time offender; and* 6. *a non-custodial or a lesser custodial term would have sufficed to achieve the ends of justice.* **3. The Respondent’s Case** 1. The appeal was vigorously opposed by the Respondent State, represented by the learned Prosecution Counsel, Ms. Akoth. 2. The Respondent submitted that the sentence meted out by the trial court was not only legal but entirely proportional to the gravity of the infraction. Ms. Akoth invited this Court to take judicial notice of the fact that the Appellant was caught red-handed at the scene using specialized tools to vandalize the structural anchors of high-voltage transmission lines. 3. The Respondent maintained that infrastructure vandalism is an act of economic sabotage that carries severe public safety risks, and that the five-year mandatory minimum under Section 168 of the Energy Act was deliberately enacted by Parliament to deter such reckless behaviour. **4. Issues for Determination** 1. Having considered the Petition of Appeal, the record of the trial court, and the written submissions of the Appellant, this Court identifies a singular issue for determination: 2. *Whether the learned trial Magistrate erred in law and exercise of discretion by imposing the statutory minimum sentence of five (5) years' imprisonment, having regard to the Appellant’s own plea of guilt, the aggravating circumstances of the offense, and the findings of the Pre-Sentencing Report.* **5. Judicial Analysis and Deliberation** 1. It is an immutable principle of our criminal procedure that an own plea of guilt is a potent mitigating factor. By admitting to the charge at the earliest opportunity, an accused person demonstrates immediate contrition, dispenses with the state's burden of constructing a complex technical trial, and saves valuable judicial time. 2. Ordinarily, such a progressive stance leans the court toward administrative leniency or a reduced sentencing spectrum. 3. However, sentencing is a balancing exercise that does not operate in a vacuum. It must evaluate the crime, the offender, and the collective interest of the community. 4. The statutory framework under Section 168(1)(d) of the Energy Act 2019 is clear. Parliament purposefully engineered strict minimum thresholds by imposing fines of not less than five million shillings or to a term of imprisonment of not less than five years, or both to stem the rising tide of critical infrastructure destruction. 5. The Court in ***Wachira & 12 others v Republic & 2 others (Petition 97, 88, 90 & 57 of 2021 (Consolidated)) [2022] KEHC 12795 (KLR)A*** clearly stated that “***mandatory minimum sentence was not per se unconstitutional. The Legislature in the exercise of its legislative powers was perfectly entitled to indicate the type of the sentence which would fit the offence it created. It had never been suggested that the sphere of judicial power was invaded when Parliament provided for a maximum or minimum penalty for offences which were duly proved in courts of law. What was decried was absence of judicial discretion to determine an appropriate sentence taking into account the individual circumstances of an accused person, depriving an accused person the right to be heard in mitigation and or depriving the court the discretion to determine an appropriate sentence.”*** 6. It is established that mandatory statutory minimums cannot be applied blindly or mechanically to strip a judicial officer of their constitutional duty to assess proportionality under Article 50(2)(p) of the Constitution. Therefore, this Court has applied its independent judicial mind to the materials on record to test whether the five-year term fits the scale of justice in this instance. 7. The factual circumstances under which the Appellant was apprehended are deeply aggravating. The Appellant was caught red-handed cutting high-tensile stay wires that stabilize high-voltage transmission lines. This is not a nominal property crime or a simple theft of low-grade utility lines. Vandalizing the support anchors of high-voltage pylons risks triggering catastrophic structural failures, massive regional blackouts, immense financial losses running into millions of shillings, and an immediate, lethal threat of mass electrocution to the surrounding public. 8. To fully appreciate the profile of the offender, this Court called for and reviewed **Pre-Sentencing Report Ref. No. PS/01/CSOR/14182 dated 21st November 2023**, which was placed before the trial court. The report presents a telling diagnostic assessment: 9. **Administrative and Local Intelligence:** 10. Formal briefs compiled by the Local Administration (including the area Chief and Assistant Chief) explicitly indicate that the Appellant has been actively involved in setting up and facilitating illegal power connections within the locality for an extended period. He was well-marked by local administrative organs as a perpetual conduit for utility interference. 11. **The Offender's Background:** 12. The Probation Officer’s assessment reveals that while the Appellant possesses high technical and artisan resourcefulness, these skills have been systematically weaponized and funnelled into unregulated, illicit electrical infrastructure tampering rather than legitimate economic gain. 13. **Family and Community Dynamics:** 14. The report notes a fragmented family structure incapable of offering prosocial containment or parental oversight. Crucially, the local community attitude was found to be deeply hostile toward the Appellant. The residents expressed profound resentment over continuous localized blackouts and safety hazards caused by power interferences, strongly advocating for an unyielding custodial deterrent. 15. Superimposing the findings of **Report Ref. No. PS/01/CSOR/14182** onto the current offense, it becomes clear that the Appellant’s illicit behavior has progressively escalated. He has graduated from managing localized illegal hookups to the high-stakes vandalism of primary high-voltage transmission supports. 16. In these circumstances, the plea discount championed by the defense cannot be used as an absolute bypass to escape the statutory baseline. While the Court must avoid mechanical sentencing, proportionality demands that the public interest be fiercely guarded. 17. An offender who deliberately compromises critical energy grids for scrap metal or personal gain, despite ongoing monitoring by local administration, presents a high risk of recidivism that cannot be safely managed through community-based rehabilitation. 18. Consequently, this Court finds that the five (5) year statutory minimum sentence imposed by the trial court is neither harsh nor excessive. It is the lawful floor necessary to vindicate the public interest, enforce deterrence, and preserve the integrity of our national infrastructure. The learned trial Magistrate exercised his sentencing discretion flawlessly. **6. Final Orders** In the upshot, this Court finds that the appeal against sentence lacks merit and substance. The Court hereby orders as follows: 1. The Appeal against sentence is hereby dismissed. 2. The sentence of five (5) years' imprisonment imposed by the trial court on 21st November, 2023 is upheld in its entirety with credit given for the period spent in custody from the day of arrest. It is so ordered. **SIGNED and delivered AT MALINDI …29th …this………day of …July….2026** **C.AKAIGWA** **JUDGE**