1. The appellant in this matter moved this court vide Sections 347 and 350 of the Criminal Procedure Code, Cap 75 Laws of Kenya appealing against the conviction arising from the Judgement of the Honourable P.K. Mutai (PM) delivered on 10th June, 2025 in Nairobi MCCR/E107/2022 Republic Versus Julius- Njuguna Chege.
2. The Appellant was convicted of the offence of Trading and dealing with LPG cylinders of another licensee for gain without the license prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and in Count 11 with Transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulation Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations, 2019 as read with section 101 of the Petroleum Act.
3. The appellant set out the following grounds of appeal that:-
i. The learned magistrate erred in law and in fact in reaching the finding that the Prosecution had proved its case against the Appellant to the required standard yet the elements of both offenses had not been proved in the evidence adduced.
ii. The learned magistrate erred in fact as he failed to consider that the LPG cylinders were neither presented nor produced in court for purposes of identification and inspection.
iii. The learned magistrate erred in fact as he failed to consider that the LPG cylinders captured in the photographs adduced did not contain the marks placed upon them by the Investigating Officer as a way of identifying them at trial.
iv. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that the Appellant was not a trader of LPG or LPG cylinders.
v. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that none of them saw the Appellant trading in the LPG cylinders.
vi. The learned magistrate erred in fact by failing to consider that the LPG cylinders were not presented in court for purposes of ascertaining that they were filled with LPG.
vii. The learned magistrate erred in fact by failing to consider that none of the prosecution witnesses were employees or members from the respective brand owners who could positively identify the LPG cylinders to belong to their respective brands.
viii. The learned magistrate erred in fact by solely relying on a disputed inventory to find the guilt of the Appellant
ix. The learned magistrate erred in fact by failing to consider that the said inventory produced by the prosecution did not capture the serial numbers of the cylinders as a way of positively identifying the cylinders.
x. The learned magistrate erred in fact by failing to consider that the certificate of production accompanying the photographs did not contain any information whatsoever relating to the cylinders whether in identification, ownership or state as to whether or not they were filled with LPG.
xi. The learned magistrate erred in fact by failing to analyze the circumstances captured in the photographs in line with the witness testimonies of the chronology of events.
xii. The learned magistrate erred in law and in fact in relying only on the evidence produced by the Prosecution which was insufficient to prove the guilt of the Appellant.
xiii. The learned magistrate erred in law in shifting the burden of proving innocence to the Appellant.
xiv. The learned magistrate erred in fact by completely ignoring all evidence and testimony by the Defense, and dismissing it all as mere denials.
4. The parties in this appeal agreed to dispose it by way of written submissions which this court has carefully analyzed below.
APPELLANT’S CASE
5. The Appellant, challenged both conviction and sentence on the two counts he was found guilty of namely;-
i). trading and dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019.
ii). transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act.
6. The Appellant argued that the learned trial magistrate erred both in law and fact by finding that the prosecution had proved its case beyond reasonable doubt despite failure to establish the essential elements of the offences charged.
7. The Appellant further faulted the trial court for failing to consider that the LPG cylinders allegedly recovered were never physically presented or produced in court for purposes of identification and inspection and that the cylinders depicted in the photographs during trial did not bear the identifying marks allegedly placed on them by the investigating officer.
8. The Appellant further submitted that the trial court ignored testimony from prosecution witnesses who allegedly admitted that the Appellant was not a trader of LPG cylinders and that none of them had witnessed him trading in LPG cylinders.
9. It was also argued that the trial court failed to consider that the cylinders were never physically produced in court to ascertain whether they were indeed filled with LPG as alleged.
10. The Appellant additionally challenged the prosecution evidence on ownership of the cylinders, contending that none of the prosecution witnesses were employees or representatives of the respective brand owners capable of positively identifying the cylinders as belonging to those entities.
11. The Appellant further argued that the learned magistrate improperly relied on a disputed inventory which did not contain serial numbers capable of positively identifying the cylinders.
12. Further criticism was directed at the certificate accompanying the photographic evidence, which according to the Appellant failed to contain information relating to ownership, identification, or the status of the cylinders as either filled or empty.
13. The Appellant also faulted the trial court for allegedly failing to analyze the photographic evidence alongside witness testimonies and the chronology of events.
14. It was contended that the conviction was against the weight of evidence and that the trial court improperly shifted the burden of proof to the Appellant while at the same time dismissing the defence evidence as mere denials without proper consideration.
15. In setting out the applicable legal principles, the Appellant submitted on the duty of a first appellate court and relied on the decision in OKENO VS. REPUBLIC [1972] EA 32, where the court 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 (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post, [1958] E.A. 424”.
16. The appellant further relied on DAVID NJUGUNA WAIRIMU VS. REPUBLIC [2010] EKLR, wherein the Court of Appeal held:
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
17. The appellant submitted that the fourteen grounds of appeal could be condensed into several broad issues for determination.
18. On the issue of burden of proof, the Appellant argued that the prosecution failed to discharge its burden to the required standard of proof beyond reasonable doubt.
19. The appellant placed reliance on Stephen Nguli Mulili v Republic [2014] eKLR, wherein the court upheld the principle in DPP V WOOLMINGTON, (1935) UKHL 1 in reaffirming that the burden of proof lies with the prosecution throughout criminal proceedings.
20. The appellant also cited FESTUS MUKATI MURWA V R, [2013] eKLR in support of that proposition.
21. The appellant further relied on Article 50(2)(a) of the Constitution concerning the presumption of innocence and cited the decision in Republic v Ismail Hussein Ibrahim [2018] eKLR, where Nyakundi J approved the holding in Bakare Versus State 1985 2NWLR, which stated:
“Beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.
22. The Appellant submitted that the trial court departed from this doctrine by shifting the burden of proof to the defence after finding that the Appellant’s evidence did not cast doubt on the prosecution’s case.
23. According to the Appellant, the prosecution was required to prove that he was actively trading and dealing in LPG cylinders without authorization and that he was transporting more than three filled LPG cylinders without the necessary EPRA license.
24. The Appellant contended that these elements were never proved because no evidence was produced showing that he possessed any trading license, registration documents, or business enterprise connected to LPG trading.
25. It was also submitted that no physical business premises linked to LPG cylinder trade were associated with the Appellant.
26. Counsel emphasized that the arrest occurred on a roadside while the Appellant was allegedly in transit and referred to the investigating officer’s evidence indicating that the Appellant was “on the way to trade” in the LPG cylinders.
27. The Appellant also submitted that the inventory did not indicate the actual weights of the cylinders to establish whether they were filled, despite this being central to count two.
28. On the issue concerning failure to present the LPG cylinders and motor vehicle in court, the Appellant reproduced the provisions of Regulation 4(1)(2) and Regulation 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 relating to licensing requirements for LPG business and transportation of more than three filled cylinders.
29. The Appellant argued that the prosecution relied solely on photographs produced by the CSI officer and the inventory marked as PEXH 4 without producing the actual cylinders before court.
30. The Appellant submitted that although prosecution witnesses alleged the cylinders were filled, no evidence was led regarding actual weight measurements or the average weight of empty versus filled LPG cylinders.
31. Counsel argued that the only proper method of establishing whether the cylinders were filled was through scientific measurement, which was never done.
32. It was further argued that both the Appellant and DW2 had testified that the cylinders were empty at the time of arrest and that the prosecution ignored this critical aspect of the defence case.
33. The Appellant observed that the investigating officer’s testimony that the cylinders were “heavy,” was not good evidence arguing that “a hand is not a unit of measure known in law.” Counsel therefore submitted that the probative value of the photographs was greatly diminished because they could not conclusively establish the contents or weight of the cylinders.
34. The Appellant further submitted that the serial numbers of the LPG cylinders were omitted from the inventory, thereby rendering identification impossible and fatally weakening the prosecution’s case.
35. Counsel also challenged the release of the motor vehicle registration number KBP 254N to the Appellant without a court order, terming the release unprocedural and prejudicial because the court was denied the opportunity to inspect the vehicle physically, particularly in light of the defence claim that the vehicle could not carry the alleged weight of filled cylinders.
36. The Appellant cited section 177(a) of the Criminal Procedure Code regarding restoration of property taken from an accused person.
37. The Appellant maintained that photographs alone could not establish the condition, contents, or weight of the cylinders where such elements were central to the offence charged.
38. It was further argued that neither the original exhibits nor expert measurements were presented before court and consequently the conviction under count two was unsafe.
39. Addressing the allegation of trading and dealing in LPG cylinders, the Appellant referred to the testimony of PW1, Clive Mutiso, who stated that certain motor vehicles, including KBP 254N, collected empty cylinders from retailers and transported them to refilling plants.
40. The Appellant highlighted portions of PW1’s cross-examination where he admitted that he did not know whether the Appellant was a retailer and that he had only profiled the vehicle and not the driver, and had not seen the Appellant supplying cylinders to retailers. The Appellant argued that this evidence corroborated his own testimony that he was merely transporting empty cylinders to a refilling plant when arrested.
41. The Appellant further argued that the prosecution produced no trade license, photographs of business premises, or evidence linking him to any LPG trading business.
42. The appellant thus urged this court to find that the offence of trading and dealing in LPG cylinders had not been proved to the required standard.
43. On the issue of the disputed inventory, the Appellant reviewed the testimonies of PW1, PW2, and PW5 regarding preparation and signing of the inventory.
44. The Appellant emphasized that while PW1 claimed the inventory was signed in the accused’s presence and PW5 alleged the accused signed it, PW2 admitted that he only verified and signed it later and was not present during arrest or seizure.
45. The Appellant reiterated his own evidence denying participation in preparation of the inventory and denying that the signature appearing thereon was his. Reference was made to Defence Exhibit 1 containing the Appellant’s signature as appearing on his national identity card.
46. The Appellant argued that once the signature was disputed, the burden shifted to the prosecution to call a document examiner to establish that the signature on the inventory belonged to the Appellant.
47. Counsel further submitted that the placement of the signature on top of the Appellant’s identification number suggested that it had been inserted as an afterthought, and urged the court to interpret that inconsistency in favor of the Appellant.
48. On whether the trial court considered the defence evidence, the Appellant submitted that the learned magistrate dismissed the defence as shallow and unbelievable without properly evaluating it.
49. Counsel emphasized that both DW1 and DW2 gave sworn testimony which was subjected to cross-examination and therefore carried significant probative value.
50. The Appellant maintained that the trial court failed to address contradictions in the prosecution case regarding the weight and serial numbers of the cylinders and further failed to consider that the Appellant had disowned the signature on the inventory. It was argued that the prosecution ought to have called a document examiner to clarify that issue.
51. In conclusion, the Appellant submitted that the conviction was unsafe due to alleged gaps, contradictions, inconsistencies, and falsehoods in the prosecution case. Counsel argued that the evidentiary burden had not been discharged and that the photographic evidence relied upon lacked conclusive probative value.
52. It was further submitted that even the trial magistrate acknowledged contradictions in the prosecution case and therefore the evidence ought not to have sustained a conviction. This court was consequently urged to quash the conviction, set aside the sentence, and set the Appellant at liberty.
RESPONDENT’S CASE
53. The Respondent began by outlining the background of the matter, stating that the Appellant had been charged with two offences, namely dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and transporting LPG cylinders without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act 2019.
54. The Respondent submitted that the prosecution had called five witnesses after which the Appellant was placed on his defence.
55. It was stated that at the conclusion of the trial, the learned magistrate convicted the Appellant on both counts and sentenced him to a fine of Kshs. 10,000,000 in default to serve three years’ imprisonment.
56. The Respondent urged the court to find that the appeal lacked merit and dismiss it in its entirety.
57. The Respondent identified three issues for determination by the appellate court, namely whether all the ingredients of the offences had been proved, whether PW1 was a competent witness, and whether material witnesses had not been called.
58. On the question of whether the ingredients of the offences had been established, the Respondent reproduced section 99(1)(m) of the Petroleum Act 2019, which criminalizes refilling, rebranding, trading, or otherwise dealing with LPG cylinders of another licensee without prior written consent.
59. The Respondent also reproduced Regulation 17 of the Petroleum (Liquefied Petroleum Gas) Regulations concerning transportation of more than three filled cylinders without a valid license, Regulation 2 concerning undertaking LPG business without a valid license, Regulation 4 concerning unauthorized refilling of cylinders, and section 13(1) of the Regulations prohibiting filling LPG cylinders without authority from the brand owner.
60. The Respondent further referred to the Fifth Schedule to the Regulations providing for a penalty of not less than Kshs. 10,000,000 or imprisonment for five years for unlawful refilling, trading, or rebranding of cylinders without the brand owner’s consent.
61. The Respondent submitted that the essential ingredients requiring proof were trading or dealing with gas cylinders and lack of authority from the respective brand owners.
62. It was submitted that PW1 had testified that during a routine compliance check in Kawangware he investigated and established that gas cylinders were being illegally refilled.
63. PW1 allegedly identified motor vehicle registration number KBN 254P as supplying LPG cylinders and trailed it before intercepting it together with DCI officers.
64. The Respondent submitted that the officers found a large number of various brands of LPG cylinders in the vehicle without seals as reflected in the inventory produced before court.
65. Addressing the Appellant’s defence that he was merely transporting the cylinders and was not in possession of them, the Respondent submitted that the argument was contradicted by the evidence on record.
66. It was argued that possession of the cylinders was actual and undisputed because the cylinders were found in a vehicle owned by the Appellant and being driven by him at the time of arrest.
67. The Respondent argued that ownership and control of the vehicle constituted actual possession of its contents and that the Appellant could not distance himself from the LPG cylinders found in his own motor vehicle.
68. The Respondent further challenged the Appellant’s claim that he was merely an innocent transporter. Reliance was placed on the evidence of DW2, who according to the Respondent witnessed both the loading and offloading of the LPG cylinders into and from the Appellant’s vehicle.
69. It was submitted that DW2’s testimony elevated the Appellant’s role from passive transporter to active participant in the illegal refilling and distribution chain. The Respondent argued that the Appellant’s presence during both loading and offloading of the cylinders was inconsistent with innocence and instead demonstrated active participation in the unlawful enterprise.
70. The Respondent additionally argued that the circumstantial evidence against the Appellant was overwhelming.
71. It was submitted that the vehicle had been tracked from an illegal refilling site, intercepted while in possession of the LPG cylinders, and that the Appellant’s own witness had placed him at both the loading scene and the subsequent raid.
72. According to the Respondent, this chain of evidence irresistibly pointed to the Appellant’s guilt and was inconsistent with the theory that he was merely an innocent transporter.
73. In support of the use of circumstantial evidence, the Respondent relied on the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, where the Court of Appeal stated:
“However, it is a truism that the guilt ofan accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -"It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial."”
74. The Respondent further reproduced the principles set out in the same case regarding the threshold for reliance on circumstantial evidence, namely that the circumstances relied upon must be cogently and firmly established and must point irresistibly to the guilt of the accused person. Reference was also made to Abanga alias Onyango v R Cr. App. No. 32 of 1990.
75. On admissibility of documentary evidence, the Respondent submitted that the trial court correctly relied on the certified photographs produced as PEXH 3 depicting the LPG cylinders and the motor vehicle.
76. The Respondent argued that the Appellant’s objection regarding failure to physically produce the cylinders and motor vehicle was unfounded in light of sections 76 and 106B of the Evidence Act, which permit reliance on demonstrative evidence such as photographs where properly certified.
77. It was submitted that the photographs had been authenticated and accurately depicted the cylinders and vehicle in question.
78. According to the Respondent, the trial court was therefore justified in relying on the photographs to conclude that the cylinders were recovered from the Appellant and that the vehicle had been used in commission of the offences charged.
79. The Respondent further submitted that the trial magistrate properly found the Appellant guilty because the evidence demonstrated that he actively aided commission of the offences by collecting LPG cylinders for purposes of unlawful refilling without the authority or consent of the brand owners.
80. It was argued that the Appellant’s conduct was not that of an innocent bystander but rather an active participant in the unlawful trade.
81. The Respondent maintained that the certified photographs sufficiently demonstrated that the cylinders were recovered from the Appellant and that the vehicle involved was connected to the offences despite not being physically produced in court.
82. Regarding the competency of PW1, the Respondent submitted that PW1, Clive Mutiso, was an employee of the Petroleum Institute of East Africa working in investigations and compliance and that PIEA represented eleven licensed LPG traders who had donated powers of attorney to the institute. The Respondent pointed out that twelve powers of attorney were produced in evidence as PEXH 2 at pages 15 to 62 of the record of appeal. It was submitted that the powers of attorney authorized PIEA to act on behalf of the victims in anti-counterfeit enforcement matters and related prosecutions.
83. The Respondent further submitted that PW1 gave direct evidence regarding his investigations and the complaints he had received concerning illegally refilled cylinders in Kawangware.
84. PW1 allegedly established that the cylinders lacked seals and identified the vehicle supplying LPG cylinders in the area. It was also submitted that PW1 established from the affected brand owners that no authority had been issued permitting refilling or sale of their cylinders. The Respondent therefore argued that PW1’s evidence was direct evidence arising from investigations conducted pursuant to valid powers of attorney and could not be dismissed as hearsay.
85. On the issue of failure to call material witnesses, the Respondent addressed the Appellant’s complaint that the prosecution failed to call brand owners, EPRA officers, and drivers of vehicles ferrying cylinders.
86. The Respondent relied on section 143 of the Evidence Act, which provides that no particular number of witnesses is required to prove any fact.The Respondent also relied on Sahali Omar Versus Republic (2017) eKLR, where the Court of Appeal held:
“The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
87. In conclusion, the Respondent submitted that the prosecution called sufficient witnesses who established the offences beyond reasonable doubt and that the prosecution was not obligated to call every conceivable witness. The court was therefore urged to dismiss the appeal and uphold both conviction and sentence imposed by the trial court.
ANALYSIS AND DETERMINATION
DUTY OF THE FIRST APPELLATE COURT
88. The duty of the first appellate court was succinctly elucidated in the case of OKENO VS. REPUBLIC [1972] EA 32, where the court 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 (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post, [1958] E.A. 424”.
89. This court abiding by that duty, examined the record of the lower court and subjected the evidence to a fresh and exhaustive re-evaluation to determine whether the evidence relied on by the trial court to convict the appellant was sufficient to establish the offenses he was charged with beyond a reasonable doubt.
WHETHER THE PROSECUTION ESTABLISHED ITS CASE BEYOND A REASONABLE DOUBT
90. The prosecution called five witnesses in support of the case against the appellant.
91. PW1 Clive Mutiso, testified that he was the Head of Investigations and Compliance at the Petroleum Institute of East Africa (PIEA).
92. He produced his certified job identification card as PEXH 1. He explained that PIEA represented twelve member companies owning different LPG cylinder brands and had been granted powers of attorney by those companies to undertake brand protection, investigations, regulatory complaints, and court testimony on their behalf pursuant to the Petroleum Act 2019 and Legal Notice No. 100 of 2019.
93. He named the companies and brands as follows: Excellent Logistics (E-gas), Hashi Energy Limited (Hashi Gas), Total Kenya PLC (Total Gas), Vivo Energy Kenya Limited (Shell and Afri Gas), Rubis Energy Kenya Limited (K-Gas), Lake Gas Limited (Lake Ga
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2. The Appellant was convicted of the offence of Trading and dealing with LPG cylinders of another licensee for gain without the license prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and in Count 11 with Transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulation Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations, 2019 as read with section 101 of the Petroleum Act.
3. The appellant set out the following grounds of appeal that:-
i. The learned magistrate erred in law and in fact in reaching the finding that the Prosecution had proved its case against the Appellant to the required standard yet the elements of both offenses had not been proved in the evidence adduced.
ii. The learned magistrate erred in fact as he failed to consider that the LPG cylinders were neither presented nor produced in court for purposes of identification and inspection.
iii. The learned magistrate erred in fact as he failed to consider that the LPG cylinders captured in the photographs adduced did not contain the marks placed upon them by the Investigating Officer as a way of identifying them at trial.
iv. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that the Appellant was not a trader of LPG or LPG cylinders.
v. The learned magistrate erred in fact by ignoring the testimony by the prosecutions witnesses that none of them saw the Appellant trading in the LPG cylinders.
vi. The learned magistrate erred in fact by failing to consider that the LPG cylinders were not presented in court for purposes of ascertaining that they were filled with LPG.
vii. The learned magistrate erred in fact by failing to consider that none of the prosecution witnesses were employees or members from the respective brand owners who could positively identify the LPG cylinders to belong to their respective brands.
viii. The learned magistrate erred in fact by solely relying on a disputed inventory to find the guilt of the Appellant
ix. The learned magistrate erred in fact by failing to consider that the said inventory produced by the prosecution did not capture the serial numbers of the cylinders as a way of positively identifying the cylinders.
x. The learned magistrate erred in fact by failing to consider that the certificate of production accompanying the photographs did not contain any information whatsoever relating to the cylinders whether in identification, ownership or state as to whether or not they were filled with LPG.
xi. The learned magistrate erred in fact by failing to analyze the circumstances captured in the photographs in line with the witness testimonies of the chronology of events.
xii. The learned magistrate erred in law and in fact in relying only on the evidence produced by the Prosecution which was insufficient to prove the guilt of the Appellant.
xiii. The learned magistrate erred in law in shifting the burden of proving innocence to the Appellant.
xiv. The learned magistrate erred in fact by completely ignoring all evidence and testimony by the Defense, and dismissing it all as mere denials.
4. The parties in this appeal agreed to dispose it by way of written submissions which this court has carefully analyzed below.
APPELLANT’S CASE
5. The Appellant, challenged both conviction and sentence on the two counts he was found guilty of namely;-
i). trading and dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019.
ii). transporting Liquefied Petroleum Gas without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act.
6. The Appellant argued that the learned trial magistrate erred both in law and fact by finding that the prosecution had proved its case beyond reasonable doubt despite failure to establish the essential elements of the offences charged.
7. The Appellant further faulted the trial court for failing to consider that the LPG cylinders allegedly recovered were never physically presented or produced in court for purposes of identification and inspection and that the cylinders depicted in the photographs during trial did not bear the identifying marks allegedly placed on them by the investigating officer.
8. The Appellant further submitted that the trial court ignored testimony from prosecution witnesses who allegedly admitted that the Appellant was not a trader of LPG cylinders and that none of them had witnessed him trading in LPG cylinders.
9. It was also argued that the trial court failed to consider that the cylinders were never physically produced in court to ascertain whether they were indeed filled with LPG as alleged.
10. The Appellant additionally challenged the prosecution evidence on ownership of the cylinders, contending that none of the prosecution witnesses were employees or representatives of the respective brand owners capable of positively identifying the cylinders as belonging to those entities.
11. The Appellant further argued that the learned magistrate improperly relied on a disputed inventory which did not contain serial numbers capable of positively identifying the cylinders.
12. Further criticism was directed at the certificate accompanying the photographic evidence, which according to the Appellant failed to contain information relating to ownership, identification, or the status of the cylinders as either filled or empty.
13. The Appellant also faulted the trial court for allegedly failing to analyze the photographic evidence alongside witness testimonies and the chronology of events.
14. It was contended that the conviction was against the weight of evidence and that the trial court improperly shifted the burden of proof to the Appellant while at the same time dismissing the defence evidence as mere denials without proper consideration.
15. In setting out the applicable legal principles, the Appellant submitted on the duty of a first appellate court and relied on the decision in OKENO VS. REPUBLIC [1972] EA 32, where the court 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 (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post, [1958] E.A. 424”.
16. The appellant further relied on DAVID NJUGUNA WAIRIMU VS. REPUBLIC [2010] EKLR, wherein the Court of Appeal held:
“The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
17. The appellant submitted that the fourteen grounds of appeal could be condensed into several broad issues for determination.
18. On the issue of burden of proof, the Appellant argued that the prosecution failed to discharge its burden to the required standard of proof beyond reasonable doubt.
19. The appellant placed reliance on Stephen Nguli Mulili v Republic [2014] eKLR, wherein the court upheld the principle in DPP V WOOLMINGTON, (1935) UKHL 1 in reaffirming that the burden of proof lies with the prosecution throughout criminal proceedings.
20. The appellant also cited FESTUS MUKATI MURWA V R, [2013] eKLR in support of that proposition.
21. The appellant further relied on Article 50(2)(a) of the Constitution concerning the presumption of innocence and cited the decision in Republic v Ismail Hussein Ibrahim [2018] eKLR, where Nyakundi J approved the holding in Bakare Versus State 1985 2NWLR, which stated:
“Beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability”.
22. The Appellant submitted that the trial court departed from this doctrine by shifting the burden of proof to the defence after finding that the Appellant’s evidence did not cast doubt on the prosecution’s case.
23. According to the Appellant, the prosecution was required to prove that he was actively trading and dealing in LPG cylinders without authorization and that he was transporting more than three filled LPG cylinders without the necessary EPRA license.
24. The Appellant contended that these elements were never proved because no evidence was produced showing that he possessed any trading license, registration documents, or business enterprise connected to LPG trading.
25. It was also submitted that no physical business premises linked to LPG cylinder trade were associated with the Appellant.
26. Counsel emphasized that the arrest occurred on a roadside while the Appellant was allegedly in transit and referred to the investigating officer’s evidence indicating that the Appellant was “on the way to trade” in the LPG cylinders.
27. The Appellant also submitted that the inventory did not indicate the actual weights of the cylinders to establish whether they were filled, despite this being central to count two.
28. On the issue concerning failure to present the LPG cylinders and motor vehicle in court, the Appellant reproduced the provisions of Regulation 4(1)(2) and Regulation 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 relating to licensing requirements for LPG business and transportation of more than three filled cylinders.
29. The Appellant argued that the prosecution relied solely on photographs produced by the CSI officer and the inventory marked as PEXH 4 without producing the actual cylinders before court.
30. The Appellant submitted that although prosecution witnesses alleged the cylinders were filled, no evidence was led regarding actual weight measurements or the average weight of empty versus filled LPG cylinders.
31. Counsel argued that the only proper method of establishing whether the cylinders were filled was through scientific measurement, which was never done.
32. It was further argued that both the Appellant and DW2 had testified that the cylinders were empty at the time of arrest and that the prosecution ignored this critical aspect of the defence case.
33. The Appellant observed that the investigating officer’s testimony that the cylinders were “heavy,” was not good evidence arguing that “a hand is not a unit of measure known in law.” Counsel therefore submitted that the probative value of the photographs was greatly diminished because they could not conclusively establish the contents or weight of the cylinders.
34. The Appellant further submitted that the serial numbers of the LPG cylinders were omitted from the inventory, thereby rendering identification impossible and fatally weakening the prosecution’s case.
35. Counsel also challenged the release of the motor vehicle registration number KBP 254N to the Appellant without a court order, terming the release unprocedural and prejudicial because the court was denied the opportunity to inspect the vehicle physically, particularly in light of the defence claim that the vehicle could not carry the alleged weight of filled cylinders.
36. The Appellant cited section 177(a) of the Criminal Procedure Code regarding restoration of property taken from an accused person.
37. The Appellant maintained that photographs alone could not establish the condition, contents, or weight of the cylinders where such elements were central to the offence charged.
38. It was further argued that neither the original exhibits nor expert measurements were presented before court and consequently the conviction under count two was unsafe.
39. Addressing the allegation of trading and dealing in LPG cylinders, the Appellant referred to the testimony of PW1, Clive Mutiso, who stated that certain motor vehicles, including KBP 254N, collected empty cylinders from retailers and transported them to refilling plants.
40. The Appellant highlighted portions of PW1’s cross-examination where he admitted that he did not know whether the Appellant was a retailer and that he had only profiled the vehicle and not the driver, and had not seen the Appellant supplying cylinders to retailers. The Appellant argued that this evidence corroborated his own testimony that he was merely transporting empty cylinders to a refilling plant when arrested.
41. The Appellant further argued that the prosecution produced no trade license, photographs of business premises, or evidence linking him to any LPG trading business.
42. The appellant thus urged this court to find that the offence of trading and dealing in LPG cylinders had not been proved to the required standard.
43. On the issue of the disputed inventory, the Appellant reviewed the testimonies of PW1, PW2, and PW5 regarding preparation and signing of the inventory.
44. The Appellant emphasized that while PW1 claimed the inventory was signed in the accused’s presence and PW5 alleged the accused signed it, PW2 admitted that he only verified and signed it later and was not present during arrest or seizure.
45. The Appellant reiterated his own evidence denying participation in preparation of the inventory and denying that the signature appearing thereon was his. Reference was made to Defence Exhibit 1 containing the Appellant’s signature as appearing on his national identity card.
46. The Appellant argued that once the signature was disputed, the burden shifted to the prosecution to call a document examiner to establish that the signature on the inventory belonged to the Appellant.
47. Counsel further submitted that the placement of the signature on top of the Appellant’s identification number suggested that it had been inserted as an afterthought, and urged the court to interpret that inconsistency in favor of the Appellant.
48. On whether the trial court considered the defence evidence, the Appellant submitted that the learned magistrate dismissed the defence as shallow and unbelievable without properly evaluating it.
49. Counsel emphasized that both DW1 and DW2 gave sworn testimony which was subjected to cross-examination and therefore carried significant probative value.
50. The Appellant maintained that the trial court failed to address contradictions in the prosecution case regarding the weight and serial numbers of the cylinders and further failed to consider that the Appellant had disowned the signature on the inventory. It was argued that the prosecution ought to have called a document examiner to clarify that issue.
51. In conclusion, the Appellant submitted that the conviction was unsafe due to alleged gaps, contradictions, inconsistencies, and falsehoods in the prosecution case. Counsel argued that the evidentiary burden had not been discharged and that the photographic evidence relied upon lacked conclusive probative value.
52. It was further submitted that even the trial magistrate acknowledged contradictions in the prosecution case and therefore the evidence ought not to have sustained a conviction. This court was consequently urged to quash the conviction, set aside the sentence, and set the Appellant at liberty.
RESPONDENT’S CASE
53. The Respondent began by outlining the background of the matter, stating that the Appellant had been charged with two offences, namely dealing with LPG cylinders of another licensee for gain without prior written consent contrary to section 99(1)(m) of the Petroleum Act 2019 and transporting LPG cylinders without a valid license from the Energy and Petroleum Regulatory Authority contrary to Regulation 4(1)(2) and 17(1)(3) of the Petroleum (Liquefied Petroleum Gas) Regulations 2019 as read with section 101 of the Petroleum Act 2019.
54. The Respondent submitted that the prosecution had called five witnesses after which the Appellant was placed on his defence.
55. It was stated that at the conclusion of the trial, the learned magistrate convicted the Appellant on both counts and sentenced him to a fine of Kshs. 10,000,000 in default to serve three years’ imprisonment.
56. The Respondent urged the court to find that the appeal lacked merit and dismiss it in its entirety.
57. The Respondent identified three issues for determination by the appellate court, namely whether all the ingredients of the offences had been proved, whether PW1 was a competent witness, and whether material witnesses had not been called.
58. On the question of whether the ingredients of the offences had been established, the Respondent reproduced section 99(1)(m) of the Petroleum Act 2019, which criminalizes refilling, rebranding, trading, or otherwise dealing with LPG cylinders of another licensee without prior written consent.
59. The Respondent also reproduced Regulation 17 of the Petroleum (Liquefied Petroleum Gas) Regulations concerning transportation of more than three filled cylinders without a valid license, Regulation 2 concerning undertaking LPG business without a valid license, Regulation 4 concerning unauthorized refilling of cylinders, and section 13(1) of the Regulations prohibiting filling LPG cylinders without authority from the brand owner.
60. The Respondent further referred to the Fifth Schedule to the Regulations providing for a penalty of not less than Kshs. 10,000,000 or imprisonment for five years for unlawful refilling, trading, or rebranding of cylinders without the brand owner’s consent.
61. The Respondent submitted that the essential ingredients requiring proof were trading or dealing with gas cylinders and lack of authority from the respective brand owners.
62. It was submitted that PW1 had testified that during a routine compliance check in Kawangware he investigated and established that gas cylinders were being illegally refilled.
63. PW1 allegedly identified motor vehicle registration number KBN 254P as supplying LPG cylinders and trailed it before intercepting it together with DCI officers.
64. The Respondent submitted that the officers found a large number of various brands of LPG cylinders in the vehicle without seals as reflected in the inventory produced before court.
65. Addressing the Appellant’s defence that he was merely transporting the cylinders and was not in possession of them, the Respondent submitted that the argument was contradicted by the evidence on record.
66. It was argued that possession of the cylinders was actual and undisputed because the cylinders were found in a vehicle owned by the Appellant and being driven by him at the time of arrest.
67. The Respondent argued that ownership and control of the vehicle constituted actual possession of its contents and that the Appellant could not distance himself from the LPG cylinders found in his own motor vehicle.
68. The Respondent further challenged the Appellant’s claim that he was merely an innocent transporter. Reliance was placed on the evidence of DW2, who according to the Respondent witnessed both the loading and offloading of the LPG cylinders into and from the Appellant’s vehicle.
69. It was submitted that DW2’s testimony elevated the Appellant’s role from passive transporter to active participant in the illegal refilling and distribution chain. The Respondent argued that the Appellant’s presence during both loading and offloading of the cylinders was inconsistent with innocence and instead demonstrated active participation in the unlawful enterprise.
70. The Respondent additionally argued that the circumstantial evidence against the Appellant was overwhelming.
71. It was submitted that the vehicle had been tracked from an illegal refilling site, intercepted while in possession of the LPG cylinders, and that the Appellant’s own witness had placed him at both the loading scene and the subsequent raid.
72. According to the Respondent, this chain of evidence irresistibly pointed to the Appellant’s guilt and was inconsistent with the theory that he was merely an innocent transporter.
73. In support of the use of circumstantial evidence, the Respondent relied on the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, where the Court of Appeal stated:
“However, it is a truism that the guilt ofan accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -"It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial."”
74. The Respondent further reproduced the principles set out in the same case regarding the threshold for reliance on circumstantial evidence, namely that the circumstances relied upon must be cogently and firmly established and must point irresistibly to the guilt of the accused person. Reference was also made to Abanga alias Onyango v R Cr. App. No. 32 of 1990.
75. On admissibility of documentary evidence, the Respondent submitted that the trial court correctly relied on the certified photographs produced as PEXH 3 depicting the LPG cylinders and the motor vehicle.
76. The Respondent argued that the Appellant’s objection regarding failure to physically produce the cylinders and motor vehicle was unfounded in light of sections 76 and 106B of the Evidence Act, which permit reliance on demonstrative evidence such as photographs where properly certified.
77. It was submitted that the photographs had been authenticated and accurately depicted the cylinders and vehicle in question.
78. According to the Respondent, the trial court was therefore justified in relying on the photographs to conclude that the cylinders were recovered from the Appellant and that the vehicle had been used in commission of the offences charged.
79. The Respondent further submitted that the trial magistrate properly found the Appellant guilty because the evidence demonstrated that he actively aided commission of the offences by collecting LPG cylinders for purposes of unlawful refilling without the authority or consent of the brand owners.
80. It was argued that the Appellant’s conduct was not that of an innocent bystander but rather an active participant in the unlawful trade.
81. The Respondent maintained that the certified photographs sufficiently demonstrated that the cylinders were recovered from the Appellant and that the vehicle involved was connected to the offences despite not being physically produced in court.
82. Regarding the competency of PW1, the Respondent submitted that PW1, Clive Mutiso, was an employee of the Petroleum Institute of East Africa working in investigations and compliance and that PIEA represented eleven licensed LPG traders who had donated powers of attorney to the institute. The Respondent pointed out that twelve powers of attorney were produced in evidence as PEXH 2 at pages 15 to 62 of the record of appeal. It was submitted that the powers of attorney authorized PIEA to act on behalf of the victims in anti-counterfeit enforcement matters and related prosecutions.
83. The Respondent further submitted that PW1 gave direct evidence regarding his investigations and the complaints he had received concerning illegally refilled cylinders in Kawangware.
84. PW1 allegedly established that the cylinders lacked seals and identified the vehicle supplying LPG cylinders in the area. It was also submitted that PW1 established from the affected brand owners that no authority had been issued permitting refilling or sale of their cylinders. The Respondent therefore argued that PW1’s evidence was direct evidence arising from investigations conducted pursuant to valid powers of attorney and could not be dismissed as hearsay.
85. On the issue of failure to call material witnesses, the Respondent addressed the Appellant’s complaint that the prosecution failed to call brand owners, EPRA officers, and drivers of vehicles ferrying cylinders.
86. The Respondent relied on section 143 of the Evidence Act, which provides that no particular number of witnesses is required to prove any fact.The Respondent also relied on Sahali Omar Versus Republic (2017) eKLR, where the Court of Appeal held:
“The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
87. In conclusion, the Respondent submitted that the prosecution called sufficient witnesses who established the offences beyond reasonable doubt and that the prosecution was not obligated to call every conceivable witness. The court was therefore urged to dismiss the appeal and uphold both conviction and sentence imposed by the trial court.
ANALYSIS AND DETERMINATION
DUTY OF THE FIRST APPELLATE COURT
88. The duty of the first appellate court was succinctly elucidated in the case of OKENO VS. REPUBLIC [1972] EA 32, where the court 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 (Pandya vs. R. [1957] E.A. 336) 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. (Shantilal M. Ruwala vs. R., [1957] E.A. 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post, [1958] E.A. 424”.
89. This court abiding by that duty, examined the record of the lower court and subjected the evidence to a fresh and exhaustive re-evaluation to determine whether the evidence relied on by the trial court to convict the appellant was sufficient to establish the offenses he was charged with beyond a reasonable doubt.
WHETHER THE PROSECUTION ESTABLISHED ITS CASE BEYOND A REASONABLE DOUBT
90. The prosecution called five witnesses in support of the case against the appellant.
91. PW1 Clive Mutiso, testified that he was the Head of Investigations and Compliance at the Petroleum Institute of East Africa (PIEA).
92. He produced his certified job identification card as PEXH 1. He explained that PIEA represented twelve member companies owning different LPG cylinder brands and had been granted powers of attorney by those companies to undertake brand protection, investigations, regulatory complaints, and court testimony on their behalf pursuant to the Petroleum Act 2019 and Legal Notice No. 100 of 2019.
93. He named the companies and brands as follows: Excellent Logistics (E-gas), Hashi Energy Limited (Hashi Gas), Total Kenya PLC (Total Gas), Vivo Energy Kenya Limited (Shell and Afri Gas), Rubis Energy Kenya Limited (K-Gas), Lake Gas Limited (Lake Ga
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