Maina & 2 others v Republic

Code as read with section 20(1) of the Penal Code. She sentenced the appellants to pay a ne of Kshs 2,500,000 and in default imprisonment for 15 months from the date of sentence by the subordinate court. 5. Michael Mutisya Kyenze (hereinafter ‘‘the appellant’’) was aggrieved, and he led a notice of appeal dated 19 May 2020 against the decision of the superior court. 6. The appellant thereafter led a memorandum of appeal dated 9 February 2024 with this Court, and he set the grounds of appeal as: 7. i. The Learned Judge erred and misdirected herself by convicting the Appellant with (sic) the oence of stealing of goods in transit contrary to section 279(2) of the Penal Code, without appreciating that no purportedly stolen goods were produced before the trial Court in support of the prosecution case. ii. The Learned Judge erred and misdirected herself by convicting the Appellant as aforesaid without appreciating that the prosecution never produced the alleged pipe or other receptacle used in siphoning the fuel, or the vehicle or the container which was allegedly used by the Appellant to transport the goods alleged to have been stolen while on transit. iii. The Learned Judge erred and misdirected herself by convicting the Appellant as aforesaid without appreciating that the prosecution did not call as a witness, the driver or turn boy or even any occupant if any, of the motor vehicle that allegedly carried the goods stolen while on transit. iv. That in a nutshell, the Learned Judge erred and misdirected herself in law by failing to appreciate the prosecution had failed to prove all the ingredients of the oence of theft of goods on transit contrary to section 279(2) as read with section 20(1)(d) of the Penal Code. From the record, Antony Wekesa Situma, named as the 3rd appellant, led a memorandum of appeal dated 3 April 2025, on or around 1 July 2025, contending that: i. The Learned Judge erred in law and in fact by substituting the conviction for robbery with violence under Section 296(2) of the Penal Code with a conviction for stealing goods in transit under Section279(c) as read with Section 20(1) of the Penal Code, despite the absence of cogent and credible evidence to support the substituted charge. ii. The Learned Judge erred in law by failing to consider that the appellant's conviction was based on circumstantial evidence, which did not meet the requisite threshold of proof beyond reasonable doubt. iii. The Learned Judge erred in law and in fact by failing to consider that the appellant acted under the chain of command from his superiors and in accordance with his duties as a police ocer attached to the Kenya Pipeline Company. iv. The Learned Judge erred in law by failing to consider that the prosecution's case was riddled with material inconsistencies, signicant gaps and insucient evidence, which rendered the conviction unsafe; particularly the failure to arrest the driver and occupants of the alleged truck and the non-production of the truck as an exhibit. v. The learned Judge erred in law and fact by shifting the burden of proof to the appellant, contrary to the fundamental principles of criminal law, and failing to accord due weight to the appellant's defence. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 2

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8. We note that Antony Wekesa Situma did not le any submissions nor appear for the hearing. 9. The appellant rst led his submissions dated 19 February 2024 through Kyalo & Associates Advocates and amended submissions dated 5 February 2025. 10. The appeal was heard on 4 March 2026. Learned counsel Ms Chamia appeared for the appellant while learned Senior Assistant Director of Public Prosecutions Mr Okemwa appeared for the respondent. Appellant’s submissions 11. Before the submissions were taken, Ms Chamia, responding to questions from the Court, informed the Court that the appellant(s) had served their sentences and been released and that the appeal had been rendered academic. Counsel further contended that the superior court had failed to consider the ingredients of the oence of stealing goods in transit. 12. To advance his appeal, the appellant urged that the only issue in contention was whether the prosecution had proved all the ingredients of the oence of theft of goods in transit contrary to section 279(2) as read with section 20(1)(d) of the Penal Code. 13. Drawing from William Masava Iningilo & Ar v R (2021) eKLR, the appellant argued that it was incumbent upon the prosecution to prove the goods and value of goods stolen while on transit; the goods were stolen from a vessel, vehicle or place of deposit used for conveyance or custody of the goods and that the goods were in transit. 14. In the instant case, the appellant asserted that the prosecution failed to establish what goods were stolen, from which vessel or vehicle, who were the persons conveying the said goods and how, where and when the goods were stolen. 15. The appellant urged that the respondent needed to produce the purported stolen goods, the vehicle and receptacle used in the stealing to prove the oence. The appellant further contended that it was required of the respondent to call the driver, turn boy or any other occupant of the vehicle when the theft happened to support the charge. 16. Lastly, the appellant contended that the respondent’s case was wholly based on weak circumstantial evidence which could not sustain a conviction. The appellant cited and relied on Wilson Wanjala Mkendeshwo v R (2002) and Chiragu & Ar v R (2021) KECA 342 (KLR). The Respondent’s submissions 17. The respondent saw the Appeal as a second appeal and, citing section 361(a) of the Criminal Procedure Code and Njoroge v R (1982) KLR 388, urged the Court to address only legal questions and not delve into ndings of fact by the courts below. 18. On the merits, the respondent submitted that the conviction and sentence by the superior court was safe because there was evidence led by the prosecution that the appellant, a security guard, was identied as one of the persons who were present and allowed a motor vehicle KBP 408B, inside the Kenya Pipeline Company station, a restricted area on the material night with a hosepipe connected to the sampling station and that there was evidence of drop in fuel pressure to back up the contention of theft of fuel. 19. Lastly, the respondent urged that the superior court, in the exercise of its discretion, had reduced the appellant’s sentence and that in all probability, the appellant had completed serving the sentence We have given due consideration to the appeal and submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 3

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20. The instant appeal is a second appeal, and the Court is guided by section 361(1) of the Criminal Procedure Code to consider only matters of law as enunciated in Karani v R (2010) 1 KLR 73 that: By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters, they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 21. The appeal basically raises two crucial questions of law: whether the failure to produce in evidence goods stolen in transit, and the failure to present (a) witness is fatal to conviction. 22. On the rst two grounds of appeal, the appellant took the position that production in court of the goods allegedly stolen while in transit and any receptacles used in the theft were required to prove the oence. 23. The parties did not cite, and we did not come across, a decision of this Court where the standard of proof of ingredients or elements of the oence of stealing goods in transit was in contention. 24. In William Masava Iningilo & Ar v R (2021) KEHC 2010 (KLR) and Mwangi & Ar v R (2025) KEHC 1293 (KLR), the High Court outlined the elements which the prosecution should prove in an oence of stealing goods in transit: that goods of some value were stolen; the goods were stolen from a vessel, vehicle or place of deposit used for conveyance or custody of the goods and the goods were in transit from one place to another. In our view, the postulation by the High Court is legally sound. 25. It is not lost to us that stealing of goods in transit is a species of the oence of theft or stealing, and some of the doctrines applicable to the standard of proof, including production into evidence of the stolen goods, would apply mutatis mutandis. 26. In Peter Kihia Mwaniki v R (2010) KECA 18 (KLR), this Court held that the failure to produce in court stolen items was not fatal. The Court stated: a failure to produce the same was not fatal to the prosecution case. There were exhibits which were more incriminating which the prosecution produced. We do not think there was a failure of justice arising from the omission to tender those exhibits in court. 27. From across our borders, the Supreme Court of Uganda held in Bogere Moses & Ar v Uganda (1998) UGSC 22 (6 July 1998) that: subject to the circumstances of each case, any admissible evidence which trends to conrm or show that the identication by an eye witness is credible, even if it emanates from the witness himself, will suce as supportive evidence for the purpose. 28. The question we must, therefore, grapple with is whether there was sucient circumstantial evidence before the courts below to support the conviction for the charge of stealing goods in transit. 29. The rst two issues identied by the subordinate court as arising for its decision were whether it was possible to siphon fuel from the pump station and if so, whether there was any siphoning done at the pump station on the night of 21/22 – 10- 17? https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 4

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30. The subordinate made a nding that: it is the nding of the court that it was possible to siphon fuel from the pump station. It was possible to remove the seal(s) from the sampling point valve and access the fuel ow and do siphoning irrespective of the pressure of the ow. 31. On the question of whether there was siphoning of fuel on the material day, the court stated: I have no doubt in mind that fuel was unlawfully siphoned at Kenya Pipeline Pump Station No. 6 at Makindu on the night of 21/22 – 10- 17. 32. On the role of each of the appellant, the subordinate court found: In regard to the second accused Michael Mutisya Kyenze he said he was the one who opened the gate and allowed the lorry into the pump station. That he only did so as the occupants convinced him they had lost their way and to allow them access Mombasa Road through another gate. He said the incident took about 30 minutes and that the lorry was not loaded with fuel at the station. ……. From the evidence on record, I have no doubt the second accused did actual violence against PW 1 and wounded him in order to prevent or overcome resistance by PW1 to have the property (rened fuel) stolen retained and not leave the pump station. The second accused did so knowing very well about the theft and acting in concert with the occupants of the vehicle. 33. The superior court on its part held: 108. The court had to rst of all establish that there was theft of 33,000 litres of fuel valued at Kshs.3,431,670/- from Kenya pipeline pump station no. sampling point. There is no dispute that a truck registration No. KBP 480B entered station No. 6 Makindu on the night of 21st/22nd October 2017 contrary to the laid down procedures and regulations. It is also not disputed that the said entry of the truck was not recorded/registered as per the procedure and regulations. 108. The person who allowed the truck in and did not indicate the entry in the books was the 2nd Appellant. The reason for adherence to the regulations and procedures is because the station is a restricted area for obvious reasons. Why was the entry of the truck not recorded? The 2nd appellant did not give any sound explanation for that. Secondly his reason for allowing the truck in and what happened thereafter is very suspicious. ….. 126. This theft was committed in the presence of the 1st, 2nd and 3rd Appellants and they took no action…. The 2nd Appellant was the security guard on duty. He is the one who allowed in the truck registration No. KBP 480B with its four occupants. He took no step to stop the theft or even report it…. 34. That the courts below made concurrent ndings of fact that there was theft of goods in transit cannot be gainsaid. 35. What then is the extent of this Court’s jurisdiction to interfere with a conviction where the courts below reached concurrent ndings of fact? https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 5

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36. There is a plethora of decisions on the point. 37. But the starting point is statutory law. Section 361(1) of the Criminal Procedure Code provides that: A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section: 38. a. on a matter of fact, and severity of sentence is a matter of fact; or b. against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence. This Court expounded on the legal position in Karingo v R (1982) KLR 213, thus: A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of fact arrived at in the two courts below unless based on no evidence. 39. This Court further expounded on the provision in Karani v R (2010) 1 KLR 73: By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the rst appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 40. The appellant did not suggest in the remotest that the superior court considered matters it ought not to have looked into or that the court failed to consider matters it should have or that the superior court was plainly wrong. 41. The appellant also challenged the judgment of the courts below on the ground that material witnesses were not called, and these were principally the driver, turn boy and an occupant of the truck purportedly used to ferry the siphoned fuel. 42. This Court has had occasion to address its mind to the failure by the prosecution to call witnesses. In Benjamin Mugo Mwangi & Ar v R (1984) KECA 77 (KLR), the Court held: Whether a witness should be called by the prosecutor is a matter within the discretion of the prosecutor and a court will not interfere with that discretion unless, perhaps, it may be shown that, the prosecutor has been inuenced by some oblique motive. 43. In Sahali Omar v R (2017) eKLR, this Court drew from statutory law and reiterated that: Section 143 of the Evidence Act provides that: - No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. 44. Still on this point, the Court held in Munene v R (2018) KECA 186 (KLR) that: We repeat what, in our view is elementary principle in criminal law that, although the prosecution must avail all witnesses necessary to establish the truth and whose evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 6

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appear essential to the just decision of the case, no particular number of witnesses is required for the proof of any fact; and that the prosecution is not obliged to call a superuity of witnesses. 45. The superior court noted at paragraph 127 of the judgment the failure to call some of the witnesses, including the persons who were in the truck. In so doing, the court noted that there had been interference with the investigations but went ahead to convict the appellant. 46. The superior court, therefore, found the evidence on record sucient to convict. The appellant has not demonstrated before us that, save for the evidence of the four persons who were in the truck, the evidence placed before the court by the prosecution was not sucient. 47. We have considered the appeal; the only matters of law implicated therein were whether the failure to produce the stolen goods and some of the witnesses was fatal to the appellant’s conviction. 48. As enunciated above, the failures were not fatal to the conviction of the appellant. 49. We, therefore, nd the appeal without merit and it is dismissed. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE ....................................... JUDGE OF APPEAL R. NGETICH ......................................... JUDGE OF APPEAL RADIDO S. OKIYO ....................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1717/eng@2026-09-25 7

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