(Being an appeal against the conviction and sentence of the Senior Resident Magistrate’s Court at Mombasa (Hon. G. Ollimo, SRM) in Criminal Case No. 1502 of 2022 delivered on 26th June 2024)
The Charges
1. The appellant was charged before the trial court with two counts as follows:
Count I: Tampering with telecommunication plants contrary to section 32(c) of the Kenya Information and Communications Act, Cap. 411A.
Particulars of the offence were that on 22nd December 2022 at about 7.00 a.m. at Kibarani area in Jomvu Sub-County within Mombasa County, jointly with another person not before the court, he intentionally and unlawfully vandalized 600 metres of Safaricom PLC fibre optic cable valued at Kshs. 538,161.12, the property of Safaricom PLC.
Count II: Malicious damage to property contrary to section 339 of the Penal Code.
Particulars of the offence were that on 22nd December 2022 at about 7.00 a.m. at Kibarani area in Jomvu Sub-County within Mombasa County, jointly with another person not before the court, he wilfully and unlawfully damaged three fibre optic cable poles and accessories valued at Kshs. 114,100/=, the property of Safaricom PLC.
2. The prosecution called five witnesses in support of its case. Upon considering the evidence, the trial court ruled on 13th March 2024 that the appellant had a case to answer and placed him on his defence.
3. The appellant gave sworn testimony and did not call any witness. Upon conclusion of the trial, the learned trial magistrate convicted him and, on 26th June 2024, sentenced him to pay a fine of Kshs. 5,000,000 and, in default, to serve ten (10) years imprisonment. In view of the sentence imposed in Count I, the appellant was discharged under section 35(1) of the Penal Code on Count II.
Grounds of Appeal
4. Being dissatisfied with both conviction and sentence, the appellant lodged this appeal on the following grounds:
a) That the learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved its case beyond reasonable doubt.
b) That the learned trial magistrate erred in law and fact by failing to find that the appellant’s constitutional right to a fair trial had been violated.
c) That the learned trial magistrate erred in law and fact by failing to comply with section 169(2) of the Criminal Procedure Code.
d) That the learned trial magistrate erred in law and fact by failing to take into account the period spent by the appellant in remand custody before sentence.
The Applicable Law
5. Section 32(c) of the Kenya Information and Communications Act provides:
“A person who wilfully, with intent to—
(a) ……………………………
(b) ……………………………
(c) unlawfully intercept or acquaint himself or herself with the contents of any message; vandalizes, damages, removes, tampers with, touches or in any other way whatsoever interferes with any telecommunication apparatus or telecommunication line, post, or anything whatsoever, being part of or used in or about any licensed telecommunication system,
commits an offence and shall be liable, on conviction, to a fine of not less than five million shillings or to imprisonment for a term of not less than ten years or to both.”
Summary of Evidence
6. PW1, Mercy Nyaramba, testified that she worked with Safaricom Security and was in charge of the Base Transmission System for the Coast Region. On 22nd December 2022 at about 6.00 a.m., she received information that a fibre network had been damaged, affecting Makande, Saba Saba and Kibarani areas. She proceeded to the scene where she found that fibre cables had been cut and four poles interfered with. Three poles belonged to Safaricom while one belonged to Airtel. She testified that the suspect who had been apprehended admitted that he had been assigned the task of cutting the poles for construction purposes but did not disclose the identity of the person who had instructed him. She produced a quotation showing repair costs amounting to Kshs. 538,161.12.
7. PW2, Kiptanui Hillary Kipkorir, testified that on the material day he received information regarding a network outage between Makande Primary School and Mombasa. Upon carrying out technical tests, he established that the fault originated from vandalized poles and cables. He later received information from Airtel personnel that the poles had been cut. Technicians rushed to the scene and found a crowd gathered around the vandalized poles. One suspect had been apprehended while another person escaped. The appellant was subsequently handed over to the police.
8. PW3, APC Maureen Najuam, testified that while on duty at the Deputy County Commissioner’s Office, Changamwe, she received a report from Safaricom security personnel regarding vandalism of fibre optic infrastructure at Kibarani. Together with another officer, she proceeded to the scene and found the appellant being detained by members of the public. Four poles and nine split pieces were recovered from the scene.
9. PW4, Sgt. Ronald Ayoma, testified that after receiving a report of vandalism, he proceeded to the scene where he found the appellant under detention by security officers and members of the public. He also recovered several cut and split poles from the scene.
10. PW5, PC William Kibuye, was the investigating officer. He testified that after receiving the matter for investigation, he recorded statements from witnesses and visited the scene. He observed damaged poles and confirmed the vandalism.
11. In his defence, the appellant testified that he worked as a mason in the informal sector. He stated that he had been instructed by one David, whom he described as his employer, to split the logs in question. According to him, he had no knowledge as to how the logs had been obtained. He further stated that after his arrest he attempted to direct the police to David’s residence but they declined to follow up the lead.
Duty of the First Appellate Court
12. This being a first appeal, this Court is required to re-evaluate and reconsider the evidence tendered before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
13. In Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.”
Issues for Determination
14. Having considered the petition of appeal, the proceedings and the submissions on record, the issues arising for determination are:
i. Whether the appellant received a fair trial.
ii. Whether the prosecution proved its case beyond reasonable doubt.
iii. Whether the sentence imposed ought to be interfered with on account of the period spent in remand custody.
Analysis and Determination
15. The appellant contended that photographs referred to during the trial were not formally produced as exhibits and therefore ought not to have been relied upon by the trial court.
16. The Court has carefully reviewed the record. Even assuming that the photographs were not formally produced, the question remains whether the omission occasioned a failure of justice or created reasonable doubt as to the appellant’s guilt.
17. The prosecution case was not founded solely upon photographs. The evidence of PW1, PW2, PW3, PW4 and PW5 consistently placed the appellant at the scene where the vandalized poles and fibre optic infrastructure were recovered. The appellant himself admitted in his defence that he was splitting the poles at the material time. His explanation was that he had been instructed by one David and was unaware of the source of the poles.
18. In the Court’s view, the appellant’s defence amounted to an admission that he was actively engaged in cutting and splitting the poles when he was apprehended. The defence did not challenge his presence at the scene nor his participation in the activity complained of. Rather, it sought to transfer responsibility to a third party allegedly known as David.
19. The totality of the evidence placed before the trial court established beyond reasonable doubt that the appellant was found in possession of and actively interfering with telecommunication infrastructure belonging to Safaricom PLC. The prosecution witnesses were consistent and their evidence remained largely unshaken during cross-examination.
20. Consequently, this Court is satisfied that the omission relating to the photographs, if any, did not occasion prejudice to the appellant or result in a miscarriage of justice. The conviction was supported by overwhelming oral and physical evidence independent of the photographs.
21. On the complaint regarding fair trial rights, the record demonstrates that the appellant participated fully in the proceedings, cross-examined witnesses and tendered his defence. No material violation of his constitutional rights has been demonstrated.
22. The Court therefore finds no merit in the challenge against conviction and upholds the conviction entered by the trial court.
Sentence
23. The appellant further contended that the learned trial magistrate failed to take into account the period he had spent in remand custody before sentence was imposed.
24. The record shows that the appellant was arrested on 22nd December 2022 and remained in custody throughout the trial. Judgment and sentence were delivered on 26th June 2024. He had therefore spent approximately one (1) year, six (6) months and four (4) days in pre-trial custody.
25. Section 333(2) of the Criminal Procedure Code obligates a sentencing court to take into account the period spent in custody prior to conviction. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR emphasized that a sentencing court must expressly demonstrate that it has considered such period when imposing sentence. Failure to do so constitutes an error in principle warranting appellate intervention.
26. In the present case, although the trial court imposed the statutory sentence of a fine of Kshs. 5,000,000 and, in default, ten (10) years imprisonment, there is nothing on the record to demonstrate that the period already spent in remand custody was taken into account.
27. This Court therefore finds merit in the appeal against sentence to that limited extent.
Disposition
28. The appeal against conviction lacks merit and is hereby dismissed. The conviction on Count I is upheld.
29. The appeal against sentence partially succeeds. The sentence imposed by the trial court is varied to the extent that the period spent in remand custody is taken into account.
30. Accordingly, the sentence of a fine of Kenya Shillings Five Million (Kshs. 5,000,000) is affirmed. In default of payment, the appellant shall serve imprisonment for a term of eight (8) years, five (5) months and twenty-six (26) days, being the statutory term of ten (10) years less the period spent in remand custody from 22nd December 2022 to 26th June 2024.
31. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ...2ND..... DAY OF ......JUNE.............. 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
the Appellant MR. SIRIMA
For the Respondent
Bebora – Court Assistant
The Charges
1. The appellant was charged before the trial court with two counts as follows:
Count I: Tampering with telecommunication plants contrary to section 32(c) of the Kenya Information and Communications Act, Cap. 411A.
Particulars of the offence were that on 22nd December 2022 at about 7.00 a.m. at Kibarani area in Jomvu Sub-County within Mombasa County, jointly with another person not before the court, he intentionally and unlawfully vandalized 600 metres of Safaricom PLC fibre optic cable valued at Kshs. 538,161.12, the property of Safaricom PLC.
Count II: Malicious damage to property contrary to section 339 of the Penal Code.
Particulars of the offence were that on 22nd December 2022 at about 7.00 a.m. at Kibarani area in Jomvu Sub-County within Mombasa County, jointly with another person not before the court, he wilfully and unlawfully damaged three fibre optic cable poles and accessories valued at Kshs. 114,100/=, the property of Safaricom PLC.
2. The prosecution called five witnesses in support of its case. Upon considering the evidence, the trial court ruled on 13th March 2024 that the appellant had a case to answer and placed him on his defence.
3. The appellant gave sworn testimony and did not call any witness. Upon conclusion of the trial, the learned trial magistrate convicted him and, on 26th June 2024, sentenced him to pay a fine of Kshs. 5,000,000 and, in default, to serve ten (10) years imprisonment. In view of the sentence imposed in Count I, the appellant was discharged under section 35(1) of the Penal Code on Count II.
Grounds of Appeal
4. Being dissatisfied with both conviction and sentence, the appellant lodged this appeal on the following grounds:
a) That the learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved its case beyond reasonable doubt.
b) That the learned trial magistrate erred in law and fact by failing to find that the appellant’s constitutional right to a fair trial had been violated.
c) That the learned trial magistrate erred in law and fact by failing to comply with section 169(2) of the Criminal Procedure Code.
d) That the learned trial magistrate erred in law and fact by failing to take into account the period spent by the appellant in remand custody before sentence.
The Applicable Law
5. Section 32(c) of the Kenya Information and Communications Act provides:
“A person who wilfully, with intent to—
(a) ……………………………
(b) ……………………………
(c) unlawfully intercept or acquaint himself or herself with the contents of any message; vandalizes, damages, removes, tampers with, touches or in any other way whatsoever interferes with any telecommunication apparatus or telecommunication line, post, or anything whatsoever, being part of or used in or about any licensed telecommunication system,
commits an offence and shall be liable, on conviction, to a fine of not less than five million shillings or to imprisonment for a term of not less than ten years or to both.”
Summary of Evidence
6. PW1, Mercy Nyaramba, testified that she worked with Safaricom Security and was in charge of the Base Transmission System for the Coast Region. On 22nd December 2022 at about 6.00 a.m., she received information that a fibre network had been damaged, affecting Makande, Saba Saba and Kibarani areas. She proceeded to the scene where she found that fibre cables had been cut and four poles interfered with. Three poles belonged to Safaricom while one belonged to Airtel. She testified that the suspect who had been apprehended admitted that he had been assigned the task of cutting the poles for construction purposes but did not disclose the identity of the person who had instructed him. She produced a quotation showing repair costs amounting to Kshs. 538,161.12.
7. PW2, Kiptanui Hillary Kipkorir, testified that on the material day he received information regarding a network outage between Makande Primary School and Mombasa. Upon carrying out technical tests, he established that the fault originated from vandalized poles and cables. He later received information from Airtel personnel that the poles had been cut. Technicians rushed to the scene and found a crowd gathered around the vandalized poles. One suspect had been apprehended while another person escaped. The appellant was subsequently handed over to the police.
8. PW3, APC Maureen Najuam, testified that while on duty at the Deputy County Commissioner’s Office, Changamwe, she received a report from Safaricom security personnel regarding vandalism of fibre optic infrastructure at Kibarani. Together with another officer, she proceeded to the scene and found the appellant being detained by members of the public. Four poles and nine split pieces were recovered from the scene.
9. PW4, Sgt. Ronald Ayoma, testified that after receiving a report of vandalism, he proceeded to the scene where he found the appellant under detention by security officers and members of the public. He also recovered several cut and split poles from the scene.
10. PW5, PC William Kibuye, was the investigating officer. He testified that after receiving the matter for investigation, he recorded statements from witnesses and visited the scene. He observed damaged poles and confirmed the vandalism.
11. In his defence, the appellant testified that he worked as a mason in the informal sector. He stated that he had been instructed by one David, whom he described as his employer, to split the logs in question. According to him, he had no knowledge as to how the logs had been obtained. He further stated that after his arrest he attempted to direct the police to David’s residence but they declined to follow up the lead.
Duty of the First Appellate Court
12. This being a first appeal, this Court is required to re-evaluate and reconsider the evidence tendered before the trial court and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
13. In Kiilu & Another v Republic [2005] 1 KLR 174, the Court of Appeal stated:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.”
Issues for Determination
14. Having considered the petition of appeal, the proceedings and the submissions on record, the issues arising for determination are:
i. Whether the appellant received a fair trial.
ii. Whether the prosecution proved its case beyond reasonable doubt.
iii. Whether the sentence imposed ought to be interfered with on account of the period spent in remand custody.
Analysis and Determination
15. The appellant contended that photographs referred to during the trial were not formally produced as exhibits and therefore ought not to have been relied upon by the trial court.
16. The Court has carefully reviewed the record. Even assuming that the photographs were not formally produced, the question remains whether the omission occasioned a failure of justice or created reasonable doubt as to the appellant’s guilt.
17. The prosecution case was not founded solely upon photographs. The evidence of PW1, PW2, PW3, PW4 and PW5 consistently placed the appellant at the scene where the vandalized poles and fibre optic infrastructure were recovered. The appellant himself admitted in his defence that he was splitting the poles at the material time. His explanation was that he had been instructed by one David and was unaware of the source of the poles.
18. In the Court’s view, the appellant’s defence amounted to an admission that he was actively engaged in cutting and splitting the poles when he was apprehended. The defence did not challenge his presence at the scene nor his participation in the activity complained of. Rather, it sought to transfer responsibility to a third party allegedly known as David.
19. The totality of the evidence placed before the trial court established beyond reasonable doubt that the appellant was found in possession of and actively interfering with telecommunication infrastructure belonging to Safaricom PLC. The prosecution witnesses were consistent and their evidence remained largely unshaken during cross-examination.
20. Consequently, this Court is satisfied that the omission relating to the photographs, if any, did not occasion prejudice to the appellant or result in a miscarriage of justice. The conviction was supported by overwhelming oral and physical evidence independent of the photographs.
21. On the complaint regarding fair trial rights, the record demonstrates that the appellant participated fully in the proceedings, cross-examined witnesses and tendered his defence. No material violation of his constitutional rights has been demonstrated.
22. The Court therefore finds no merit in the challenge against conviction and upholds the conviction entered by the trial court.
Sentence
23. The appellant further contended that the learned trial magistrate failed to take into account the period he had spent in remand custody before sentence was imposed.
24. The record shows that the appellant was arrested on 22nd December 2022 and remained in custody throughout the trial. Judgment and sentence were delivered on 26th June 2024. He had therefore spent approximately one (1) year, six (6) months and four (4) days in pre-trial custody.
25. Section 333(2) of the Criminal Procedure Code obligates a sentencing court to take into account the period spent in custody prior to conviction. The Court of Appeal in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR emphasized that a sentencing court must expressly demonstrate that it has considered such period when imposing sentence. Failure to do so constitutes an error in principle warranting appellate intervention.
26. In the present case, although the trial court imposed the statutory sentence of a fine of Kshs. 5,000,000 and, in default, ten (10) years imprisonment, there is nothing on the record to demonstrate that the period already spent in remand custody was taken into account.
27. This Court therefore finds merit in the appeal against sentence to that limited extent.
Disposition
28. The appeal against conviction lacks merit and is hereby dismissed. The conviction on Count I is upheld.
29. The appeal against sentence partially succeeds. The sentence imposed by the trial court is varied to the extent that the period spent in remand custody is taken into account.
30. Accordingly, the sentence of a fine of Kenya Shillings Five Million (Kshs. 5,000,000) is affirmed. In default of payment, the appellant shall serve imprisonment for a term of eight (8) years, five (5) months and twenty-six (26) days, being the statutory term of ten (10) years less the period spent in remand custody from 22nd December 2022 to 26th June 2024.
31. It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ...2ND..... DAY OF ......JUNE.............. 2026.
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
the Appellant MR. SIRIMA
For the Respondent
Bebora – Court Assistant