1. This consolidated appeal emanates from the judgement and conviction of Hon. D.O. Onyango, Chief Magistrate delivered on 10th February, 2025 and subsequent sentences imposed on 18th February, 2025 in Kisumu MCCR No. E328 of 872 of 2023 Republic v Reuben Andolo Aseneka & 2 others.
2. The Appellants herein, Reuben Andolo Aseneka, Joseph Mbugua Mwai and Mutai Micah were the 1st, 2nd and 3rd accused persons respectively, before the trial court.
3. The three Appellants were charged in the trial court as follows:
Count I:
Charge: Conspiracy to commit a felony contrary to Section 393 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, jointly with others not before the court, the three Appellants conspired to steal 13,852 litres of motor spirit premium (MSP), loaded on road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count II:
Charge: Stealing contrary to Section 268 as read with Section 275 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, jointly with others not before the court, the three Appellants stole 13,852 litres of motor spirit premium (MSP), loaded on road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count III:
Charge: Illegaly interfering with felfacs and accuload being apparatus of Kenya Pipeline Company contrary to Section 99(1)(d) as read with Section 99(1)(ii) of the Petroleum Act, No. 2 of 2019, 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, without lawful excuse, the 1st and 3rd Appellants interfered with fuelfacs and acculoads by illegally changing meter factor from 0.99532 to 0.65806 leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count IV:
Charge: Unauthorized access to computer system contrary to Section 14(1) of the Computer Misuse and Cybercrime Act No. 5 of 2018 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at an unknown place, being an employee of Kenya Pipeline Company as Principal Technician, Electrical Station, Nairobi terminal, the 3rd Appellant illegally and remotely gained unauthorized access to the fuelfacs system of the instrumentation and control section, computer system for Kenya Pipeline Company Kisumu terminal leading to the unauthorized change of meter factor from 0.99532 to 0.65806 hence leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count V:
Charge: Unauthorised access to computer system contrary to Section 14(1) of the Computer Misuse and Cybercrime Act No. 5 of 2018 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, the 1st Appellant temporarily infringed security measures knowing that such access is unauthorized by pressing the accuload meter and changing it from 0.99532 to 0.65806 leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count VI:
Charge: Being in possession of petroleum product contrary to Section 99(1)(e) as read with Section 99(1)(ii) of the Petroleum Act No. 2 of 2019 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, the 2nd Appellant illegally acquired petroleum product amely motor spirit premium (MSP), to wit 13,852 litres loaded onto road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
4. All the three Appellants pleaded not guilty to all the respective counts/charges and a full trial was conducted.
5. The prosecution case was founded on the evidence of 18 witnesses while all the four Appellants defence evidence comprised their respective sworn testimonies.
6. At the close of the trial, the trial court reached the finding that the prosecution had proved all the respective offences that the three Appellants were charged with and they were all convicted on the same. The learned trial Magistrate then went on to sentence the three Appellants.
7. The grounds of appeal presented by the Appellants vide their respective Petitions of Appeal upon which they seek to upset their convictions and sentences, may be collated and summarized as follows:
a. The learned trial Magistrate erred in law and in fact by convicting the Appellants where the was no evidence to prove the charges beyond reasonable doubt.
b. The learned trial Magistrate erred in law and in fact by failing to properly analyze the evidence of the prosecution witnesses.
c. The learned trial Magistrate erred in law and in fact by ascending into the arena of the case and proceeding to fill in gaps in the prosecution case.
d. The learned trial Magistrate erred in law by failing to appreciate that there were material contradictions and inconsistencies in the prosecution witnesses’ evidence that vitiated the respective cases against the Appellants.
e. The learned trial Magistrate erred in law and in fact by failing to properly consider the respective defences mounted by the Appellants.
f. The respective sentences that were imposed by the learned trial Magistrate were manifestly excessive.
8. The Appellants propose that their respective appeals be allowed, the respective convictions be quashed and the respective sentences imposed by the trial court be set aside.
9. This court directed that the appeal be canvassed by way of written submissions. The three Appellants and the Respondent filed their respective submissions.
10. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions while bearing in mind that it did not have the benefit of seeing or hearing the witnesses when they testified (see Okeno v Republic [1972] E.A. The court observed as follows in that case:
“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 v R [1957] EA 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 v R [1957] EA 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.”
11. The duty of the first appellate court in a criminal case was prior to Okeno addressed in the case of Pandya v Republic [1957] EA 336, where the court stated as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
12. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal, while addressing itself to the same duty, held that:
“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. 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; 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.”
13. Similarly, in Victor Owich Mbogo v Republic, [2020] eKLR, the Court of Appeal observed as follows:
“It is the duty of the first appellate court to reevaluate the evidence afresh and reach its own conclusion bearing in mind that unlike the trial court, the appellate court did not have the benefit of hearing or seeing the witnesses testify.”
14. Now to the evidence before the trial court, the first prosecution witness was Chief Inspector of Police Abel Onyapidi (PW1), who told the trial court that he was the officer in charge at Crime Scenes Investigations unit in Kisumu and a gazette crimes scenes officer. The witness recalled the events of 16th March, 2023 and told the trial court that on that day at about 2pm, accompanied by Chief Inspector of Police Fredrick Baraza (PW3) and Inspector of Police Owiti, he visited the Kenya Pipeline Company (hereinafter referred to as “KPC”) operation area and proceeded to document by photographing the scene, that was the subject of investigations.
15. PW1 told the court that he took 45 photographs of the scene, which he produced as PExh1 (i to xlv). The officer also produced as PExh2 the accompanying certificate. Among the items that PW1 photographed was motor vehicle registration number KBJ 564D with a trailer registration number ZD 1473.
16. Upon being cross-examined by learned counsel for the Appellants, the witness told the trial court that he did not know the nature of the investigations that were being conducted and the charges that the Appellants faced, adding that his role was limited to documenting the scene.
17. Robert Ojukwu (PW2) was the second prosecution witness. In his testimony before the trial court, the witness stated that he worked at KPC Kisumu depot as the chief loading technician and was in charge of the loading operations which entailed loading and clearing of trucks.
18. PW2 explained to the trial court the process of loading at the KPC depot. He stated that a customer would first make a request or order to the oil marketing company and the driver of the motor vehicle that was to be loaded would then take the vehicle to the safety inspection bay and the same, once inspected and cleared by a safety officer and the requisite procurement done, would queue.
19. The witness stated that the order would be viewed by the accountants who would then proceed to process it in the SP system, whereafter the same would then be moved to the dispatch office. At the dispatch office, a slip known as filling advice note (FAN) would then be prompted and the filling advise would be taken to the gate, depending on availability of the particular product. The witness further explained that the driver of the vehicle was able to monitor the processing of the order via phone or through provided screens.
20. PW2 went on to explain that at that juncture, the driver would then collect the slip and take the vehicle to the entrance gate, where it would again be inspected for safety, and then taken to the loading bay, where loading would then be done by an operation staff of KPC. After loading, the driver would then receive the requisite bill of lading, clears with the Kenya Revenue Authority, which had an office within the premises and the driver would then be allowed to drive off.
21. The trial court record bears it that the court moved to the locus in quo at KPC where it was taken through the process.
22. PW2 identified at the scene motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 (produced as PExh3).
23. The witness recalled the events of the month of August, 2022. He told the trial court that there was a large discrepancy between the volume of super petrol that had been loaded onto the motor vehicle and the volume that left the tank at KPC. He decided to do an analysis of previous loadings. He explained that on 18th August, 2022, Galana Energies Limited made an order/request for motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which had a capacity of up to 42,000 litres to be loaded 25,000 litres of super petrol. He asked his colleague Benard Nalianya (PW6) to keep watch and confirm that the correct amount of super petrol was loaded.
24. The witness stated that the loading proceeded and when the same was completed, he asked the driver of the vehicle to open the three fuel compartments. The witness and his colleagues then proceeded to check the compartments and found that the fuel that had been loaded appeared to be more that that had been ordered. The vehicle was properly sealed and remained at the premises until the next day as it was late and darkness had set in. The driver handed over to PW2 the vehicle’s calibration chart (PExh6) and dipsticks (PExh5 a to c).
25. PW2 told the trial court that on the following day, in the company of Moses Tarus (PW8), Benard Nalianya (PW6), a representative of Galana Energies Limited (hereinafter “Galana” or “Galana Energies”) and the 2nd Appellant, whom the witness said was the driver of the vehicle, measurements of the fuel in the three compartments was done and the first compartment had 4,641 extra litres, while the second and third had 4,672 and 4,539 extra litres, respectively, making a total of 13,852 extra litres of super petrol, above the 25,000 litres that were ordered. The matter was referred to Martin Makokha, the security manager at KPC, who in turn referred the same to the police. The witness prepared a report/summary (PExh7) of the measurements
26. On being cross-examined, the witness told the trial court that the fuel belonged to oil marketers. He explained that the duties of the safety checks included ensuring that the truck was empty before loading proceeded. He stated that as per the FAN, compartment 1, 2 and 3 were to be loaded with 7,000 litres, 9,000 litres and 9,000 litres respectively. The witness stated that there were CCTV cameras at the depot and that the same were at the time working.
27. The third prosecution witness was Chief Inspector of Police Fredrick Baraza (PW3) who testified and identified the motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which he stated he took possession of on 16th March, 2022 from Nelson Makokha, the officer in charge of security at KPC Kisumu depot. Witness identified an inventory (PExh4) that was prepared by Makokha. He explained that there were noticeable leaks in the 1st and 3rd compartment of the truck.
28. PW3 explained that at the time he took custody of the vehicle and trailer, the trailer was loaded with 30,307 litres of motor spirit premium, which he stated was also known as super petrol. He stated that he also took custody of three calibration sticks (PExh5 a to c) and chat (PExh6) that were used to measure the contents of the trailer tank, which he said were unique to the vehicle.
29. It is instructive from the record of the trial court that the contents of the vehicle were measured and the same was found to have (as per the trial court) 34,760 litres of petrol.
30. The witness stated that in the course of investigations, he was informed by Alphonce Mwakulomba, the in-charge safety at the Kisumu depot that motor vehicle registration number KBJ 564D/ZD 1473 that was being driven by the 2nd Appellant was cleared for loading of 25,000 litres of super petrol. The vehicle was then checked by Elizabeth Akinyi (PW5) and then proceeded to the loading island that was being manned, as per the duty roster (PExh16) by the 1st Appellant, after overtaking another vehicle. The officer produced the occurrence book (OB) (PExh17) that indicated that the 1st Appellant checked in at 1220hrs and checked out at 1930hrs on 8th September, 2022.
31. The officer stated that he recorded statements including that of the 1st Appellant, who indicated that his analysis had revealed anomalies in the loading of the vehicle. He stated that he received the system audit report and CCTV analysis report, which he produced as PExh18 and PExh19 respectively, and the CCTV compact discs as PExh20.
32. PW3 was cross-examined and stated that he was not aware that calibration and measurement of the contents of the vehicle were supposed to be accompanied with a certificate verifying the same, which was supposed to be sealed.
33. On being cross-examined further, PW3 stated that during his investigations, the owner of the vehicle, whom he did not name, indicated that the vehicle entered the KPC premises while loaded with some fuel and that he did not obtain any statement from the same person rebutting that position. He however contradicted himself by stating that he did not find out who the owner of the vehicle was.
34. On being questioned further, PW3 told the trial court that he obtained call logs from mobile phone service providers that showed that the three Appellants had been communicating. He again contradicted himself when cross-examined further by stating that from the call logs, there was no evidence of direct communication by or between the three Appellants.
35. The witness stated that he did not record the statement of the driver whose vehicle was overtaken by the 2nd Appellant’s vehicle.
36. On being re-examined, the witness stated that calibration, measurement and sealing was done in the presence of officials of KRA, KPC and Galana Oil Marketers.
37. The prosecution called Alphonce Tolle Mwakulomba as PW4. In his testimony, the witness told the trial court that he was a senior safety assistant at KPC Kisumu depot and that on 8th September, 2022, he inspected motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 using a check list (PExh8) that had 23 items and confirmed that the same was fit to be loaded with fuel. In particular, he confirmed that the three compartments were empty by opening the valves. He then cleared the vehicle for the next department.
38. Upon cross-examination, the witness stated that the completion of the inspection form was done through the computer system and not manually.
39. PW5 was Elizabeth Akinyi Gor, a security personnel at KPC Kisumu depot. In her evidence, the witness told the trial court that as per FAN ticket for motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, the driver of the vehicle was Joseph Mbugua.
40. The witness, without particularizing the date, (simply stating September, 2022) stated that she confirmed that the driver had the appropriate attire and further that the vehicle had no dangerous weapons and that it was properly sealed. The vehicle was then allowed into the KPC premises and that she left it there when she retired from work later that day. She stated that her duties were in respect of security matters and not the safety or fitness of the vehicle to carry fuel.
41. Benard Nalianya Wafula testified as the 6th prosecution witness (PW6) and told the trial court that he was an employee of KPC as a loading supervisor and his duties included managing the loading process.
42. The witness told the court that on 8th September, 2022, PW2 told him that motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 was of interest as there had been noted discrepancies on the amount of petrol previously loaded. PW2 told PW6 to ascertain the amount of fuel that the vehicle would draw on that day.
43. PW6 explained that the vehicle had an order of 25,000 litres of super petrol and was later that day loaded. As it was getting dark, PW5 put off the process to the next day and ensured that the driver sealed its three compartments. KPC’s security officer Martin Makokha (PW7) was mandated with ensuring the security of the vehicle that night.
44. The witness stated that on the next day, the fuel in the vehicle was measured and found to be 38,352 litres. It had an extra load of 13,852 litres. The vehicle was sealed and the matter taken over by investigators.
45. Upon being cross-examined, PW6 stated that he could not tell how the extra petrol of 13,852 litres came about. He stated that the duty of the 1st Appellant, who was also an employee of KPC, was to key into the system the contents of the FAN ticket.
46. The seventh prosecution witness was Martin Wanyonyi Makokha (PW7), a security officer at KPC Kisumu depot. PW7’s evidence before the trial court was that on 8th September, 2022, he received an email from PW6 allowing him to detain motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 so that the same would not accrue overnight charges.
47. The witness explained that on the next morning, PW6 requested him to accompany him to the latter’s office, where PW2 joined them and the two briefed the witness that the vehicle had been found to be carrying an excess of 13,852 litres. PW7 requested that another measurement be done, and that the same was done in the presence of the 2nd Appellant who was the driver of the vehicle, PW6 and one Leonard Okango from Galana and the excess confirmed. PW7 reported the matter to KPC security office.
48. On being cross examined, PW7 stated that he was not present when the vehicle was sealed on 8th September, 2022. The witness stated that he had access to CCTV footage of 8th September, 2022.
49. The 8th prosecution witness was Moses Kipkemei Tarus (PW8), an engineer at KPC Kisumu depot, who told the trial court that on 8th September, 2022, he and PW6 were requested by PW2 to inspect, after loading, motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which was to be loaded with 25,000 litres of super petrol. As it was dark, the exercise was pushed to the next day.
50. PW8 stated that on 9th September, 2022, in the presence of the driver of the vehicle – the 2nd Appellant – and a representative from Galana, measurements were taken and the vehicle found to have an excess of 13,852 litres of super petrol, yet the KPC system indicated that 25,000 litres had been loaded. The truck was detained and the matter handed over to KPC’s security department.
51. PW9 was Catherine Kushakwenda, a clerk at KPC Kisumu depot. The witness identified the FAN ticket (PExh8) that was prepared for the transaction, which she printed out and gave to her supervisor Nathan Otieno. She explained that the contents of the ticket included the following:
- Name of the oil marketer – Galana Oil Company.
- Customer – Jamhuri Energy.
- Destination – Jamhuri Energy.
- Name of the driver – Joseph Mbugua.
- Registration number of the vehicle: KBJ 564D and trailer registration number ZD 1473.
- The product to be carried: super petrol.
- The product capacity: 7,000 litres in the first compartment, 9,000 litres in the second compartment and 9,000 litres in the third compartment.
- Owner of the vehicle/carrier – Njenege Company.
- Shipment number – 1001422728.
- Certifications – none.
52. The witness stated that there were no Energy and Petroleum Regulatory Authority (EPRA) certifications for the driver and the vehicle.
53. The witness, on being cross examined, stated that she did not confirm if the vehicle had excess fuel.
54. Anne Cherageni testified as the 10th prosecution witness (PW10) and told the trial court that she worked at KPC Kisumu station as a clerk and her duties included generating bills of lading (BOLs) which she would then forward to the requisite oil marketers.
55. With regard to this case, the witness told the court that on 8th September, 2022, PW9 presented to her the particulars of a motor vehicle, being registration number KBL 564D and asked her not to release the BOL and to alert him once the FAN ticket was presented. She stated that the driver of the vehicle presented to her the FAN ticket, which she immediately took to PW6, who later asked her to prepare the BOL (PExh10), which she did. She also prepared a certificate for the same (PExh14).
56. Upon cross-examination, PW10 stated that the BOL captured, inter alia, the amount of fuel in each compartment and that its contents had to correspond with those of the FAN ticket.
57. Martin Peter Ogendo Ogolla (PW11), the chief technician instrumentation and control at KPC testified as the prosecution’s eleventh witness.
58. The witness recalled the events of 8th September, 2022 and told the trial court that on that day he was informed by PW2 on the discrepancy in the loading of motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which had an excess of 13,582 litres above the required 25,000 litres. Upon checking the fuelfac system, PW11 found nothing unusual as the same showed that 25,000 litres had been dispensed from the KPC tanks. He however noted that the fuelfac system had been off from 1815hrs.
59. The witness further told the trial court that on 11th September, 2022, he checked the transaction and audit logs of the accuload that was connected to the fuelfac system and noted that the system had been disabled at about 1814hrs on 8th September, 2022. He prepared a system analysis report on his findings (PExh10) and a certificate for the same (PExh11). The witness explained that he noted from the system that at 1814hrs and 28 seconds, there was a parameter change from 0.99532 to 0.65805 and at 1848hrs and 54 seconds, a reversal of the parameter change was done. The changes were done through a key pad at the accuload.
60. Upon being cross-examined, Pw11 told the trial court that PExh11, whose date was stated as 5th October, 2022 did not give the dates of the activities it related to. He stated that he did not have exclusive access to the system, adding that several other persons, whose names he did not readily have, had access. The witness stated that access to the system was assigned by Engineer Quincy Ongondo. The witness further stated that there were no electronic footprints in the system and one could not therefore be able to tell who effected the changes.
61. The twelfth prosecution witness was Geoffrey Omeke Mosongo (PW12), an ICT officer at KPC headquarters in Nairobi.
62. In his testimony before the trial court, PW12 stated that on 15th September, 2022, on the basis of directions from his superiors, he went to the KPC Kisumu depot and joined PW11 whereby the two proceeded to analyze the system, its check point firewalls and server and obtained logs and other data. A report (PExh10) was prepared to that effect. The witness also prepared his certificate on the report (PExh12).
63. The witness explained that the system was designed in such a way that for one to access it, a VPN was required, then log in using a username and a password. The authentication was done through firewall.
64. The witness told the trial court that from the system, there was a request to log in done by Micah Mutai (the 3rd Appellant) on at 1654hrs and 24 seconds and the same successfully logged in until 1931hrs and 31 seconds on 8th September, 2022. The witness stated that the log in was done by the 3rd Appellant vide the IP address 172.29.10.57, who then proceeded to the Ps28ff server which had the IP address 172.18.17.111.
65. PW12 further explained that the system showed that the 3rd Appellant made changes to the system while logged in.
66. PW12 was cross-examined and told the trial court that he did not have exclusive access to the firewall asset log A05064035 and the CCTV server.
67. The witness stated that his certificate (PExh12) only covered the system IP addresses but did not capture the events of 15th September, 2022. He stated that the system had 5 administrators who had the capacity of assigning rights into the system, adding that the assignments were not included in the report (PExh10).
68. The witness further stated that the report did not indicate the IP address of the gadget that the 3rd Appellant used. He stated that the username and password were personal to the 3rd Appellant and denied that he, or any other person hacked the 3rd Appellant’s account and explained that if there was a hacking incident, a real time alert would have b
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2. The Appellants herein, Reuben Andolo Aseneka, Joseph Mbugua Mwai and Mutai Micah were the 1st, 2nd and 3rd accused persons respectively, before the trial court.
3. The three Appellants were charged in the trial court as follows:
Count I:
Charge: Conspiracy to commit a felony contrary to Section 393 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, jointly with others not before the court, the three Appellants conspired to steal 13,852 litres of motor spirit premium (MSP), loaded on road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count II:
Charge: Stealing contrary to Section 268 as read with Section 275 of the Penal Code, Cap 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, jointly with others not before the court, the three Appellants stole 13,852 litres of motor spirit premium (MSP), loaded on road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count III:
Charge: Illegaly interfering with felfacs and accuload being apparatus of Kenya Pipeline Company contrary to Section 99(1)(d) as read with Section 99(1)(ii) of the Petroleum Act, No. 2 of 2019, 63 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, without lawful excuse, the 1st and 3rd Appellants interfered with fuelfacs and acculoads by illegally changing meter factor from 0.99532 to 0.65806 leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count IV:
Charge: Unauthorized access to computer system contrary to Section 14(1) of the Computer Misuse and Cybercrime Act No. 5 of 2018 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at an unknown place, being an employee of Kenya Pipeline Company as Principal Technician, Electrical Station, Nairobi terminal, the 3rd Appellant illegally and remotely gained unauthorized access to the fuelfacs system of the instrumentation and control section, computer system for Kenya Pipeline Company Kisumu terminal leading to the unauthorized change of meter factor from 0.99532 to 0.65806 hence leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count V:
Charge: Unauthorised access to computer system contrary to Section 14(1) of the Computer Misuse and Cybercrime Act No. 5 of 2018 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, the 1st Appellant temporarily infringed security measures knowing that such access is unauthorized by pressing the accuload meter and changing it from 0.99532 to 0.65806 leading to the excess loading of 13,852 litres of motor spirit premium (MSP), onto the road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
Count VI:
Charge: Being in possession of petroleum product contrary to Section 99(1)(e) as read with Section 99(1)(ii) of the Petroleum Act No. 2 of 2019 Laws of Kenya.
Particulars of the offence: On the 8th of September, 2022 at Kenya Pipeline Company Kisumu terminal in Kisumu Central Subcounty within Kisumu County, the 2nd Appellant illegally acquired petroleum product amely motor spirit premium (MSP), to wit 13,852 litres loaded onto road tanker registration number KBJ 564D/ZD 1473 valued at Ksh.2,431,178/-, the property of Oil Marketers Companies (OMC), which property was in the custody of Kenya Pipeline Company.
4. All the three Appellants pleaded not guilty to all the respective counts/charges and a full trial was conducted.
5. The prosecution case was founded on the evidence of 18 witnesses while all the four Appellants defence evidence comprised their respective sworn testimonies.
6. At the close of the trial, the trial court reached the finding that the prosecution had proved all the respective offences that the three Appellants were charged with and they were all convicted on the same. The learned trial Magistrate then went on to sentence the three Appellants.
7. The grounds of appeal presented by the Appellants vide their respective Petitions of Appeal upon which they seek to upset their convictions and sentences, may be collated and summarized as follows:
a. The learned trial Magistrate erred in law and in fact by convicting the Appellants where the was no evidence to prove the charges beyond reasonable doubt.
b. The learned trial Magistrate erred in law and in fact by failing to properly analyze the evidence of the prosecution witnesses.
c. The learned trial Magistrate erred in law and in fact by ascending into the arena of the case and proceeding to fill in gaps in the prosecution case.
d. The learned trial Magistrate erred in law by failing to appreciate that there were material contradictions and inconsistencies in the prosecution witnesses’ evidence that vitiated the respective cases against the Appellants.
e. The learned trial Magistrate erred in law and in fact by failing to properly consider the respective defences mounted by the Appellants.
f. The respective sentences that were imposed by the learned trial Magistrate were manifestly excessive.
8. The Appellants propose that their respective appeals be allowed, the respective convictions be quashed and the respective sentences imposed by the trial court be set aside.
9. This court directed that the appeal be canvassed by way of written submissions. The three Appellants and the Respondent filed their respective submissions.
10. This being a first appeal, this court has a legal duty to re-analyze, re-evaluate and re-assess the evidence adduced in the lower court so as to come up with its own conclusions while bearing in mind that it did not have the benefit of seeing or hearing the witnesses when they testified (see Okeno v Republic [1972] E.A. The court observed as follows in that case:
“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 v R [1957] EA 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 v R [1957] EA 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.”
11. The duty of the first appellate court in a criminal case was prior to Okeno addressed in the case of Pandya v Republic [1957] EA 336, where the court stated as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
12. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal, while addressing itself to the same duty, held that:
“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. 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; 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.”
13. Similarly, in Victor Owich Mbogo v Republic, [2020] eKLR, the Court of Appeal observed as follows:
“It is the duty of the first appellate court to reevaluate the evidence afresh and reach its own conclusion bearing in mind that unlike the trial court, the appellate court did not have the benefit of hearing or seeing the witnesses testify.”
14. Now to the evidence before the trial court, the first prosecution witness was Chief Inspector of Police Abel Onyapidi (PW1), who told the trial court that he was the officer in charge at Crime Scenes Investigations unit in Kisumu and a gazette crimes scenes officer. The witness recalled the events of 16th March, 2023 and told the trial court that on that day at about 2pm, accompanied by Chief Inspector of Police Fredrick Baraza (PW3) and Inspector of Police Owiti, he visited the Kenya Pipeline Company (hereinafter referred to as “KPC”) operation area and proceeded to document by photographing the scene, that was the subject of investigations.
15. PW1 told the court that he took 45 photographs of the scene, which he produced as PExh1 (i to xlv). The officer also produced as PExh2 the accompanying certificate. Among the items that PW1 photographed was motor vehicle registration number KBJ 564D with a trailer registration number ZD 1473.
16. Upon being cross-examined by learned counsel for the Appellants, the witness told the trial court that he did not know the nature of the investigations that were being conducted and the charges that the Appellants faced, adding that his role was limited to documenting the scene.
17. Robert Ojukwu (PW2) was the second prosecution witness. In his testimony before the trial court, the witness stated that he worked at KPC Kisumu depot as the chief loading technician and was in charge of the loading operations which entailed loading and clearing of trucks.
18. PW2 explained to the trial court the process of loading at the KPC depot. He stated that a customer would first make a request or order to the oil marketing company and the driver of the motor vehicle that was to be loaded would then take the vehicle to the safety inspection bay and the same, once inspected and cleared by a safety officer and the requisite procurement done, would queue.
19. The witness stated that the order would be viewed by the accountants who would then proceed to process it in the SP system, whereafter the same would then be moved to the dispatch office. At the dispatch office, a slip known as filling advice note (FAN) would then be prompted and the filling advise would be taken to the gate, depending on availability of the particular product. The witness further explained that the driver of the vehicle was able to monitor the processing of the order via phone or through provided screens.
20. PW2 went on to explain that at that juncture, the driver would then collect the slip and take the vehicle to the entrance gate, where it would again be inspected for safety, and then taken to the loading bay, where loading would then be done by an operation staff of KPC. After loading, the driver would then receive the requisite bill of lading, clears with the Kenya Revenue Authority, which had an office within the premises and the driver would then be allowed to drive off.
21. The trial court record bears it that the court moved to the locus in quo at KPC where it was taken through the process.
22. PW2 identified at the scene motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 (produced as PExh3).
23. The witness recalled the events of the month of August, 2022. He told the trial court that there was a large discrepancy between the volume of super petrol that had been loaded onto the motor vehicle and the volume that left the tank at KPC. He decided to do an analysis of previous loadings. He explained that on 18th August, 2022, Galana Energies Limited made an order/request for motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which had a capacity of up to 42,000 litres to be loaded 25,000 litres of super petrol. He asked his colleague Benard Nalianya (PW6) to keep watch and confirm that the correct amount of super petrol was loaded.
24. The witness stated that the loading proceeded and when the same was completed, he asked the driver of the vehicle to open the three fuel compartments. The witness and his colleagues then proceeded to check the compartments and found that the fuel that had been loaded appeared to be more that that had been ordered. The vehicle was properly sealed and remained at the premises until the next day as it was late and darkness had set in. The driver handed over to PW2 the vehicle’s calibration chart (PExh6) and dipsticks (PExh5 a to c).
25. PW2 told the trial court that on the following day, in the company of Moses Tarus (PW8), Benard Nalianya (PW6), a representative of Galana Energies Limited (hereinafter “Galana” or “Galana Energies”) and the 2nd Appellant, whom the witness said was the driver of the vehicle, measurements of the fuel in the three compartments was done and the first compartment had 4,641 extra litres, while the second and third had 4,672 and 4,539 extra litres, respectively, making a total of 13,852 extra litres of super petrol, above the 25,000 litres that were ordered. The matter was referred to Martin Makokha, the security manager at KPC, who in turn referred the same to the police. The witness prepared a report/summary (PExh7) of the measurements
26. On being cross-examined, the witness told the trial court that the fuel belonged to oil marketers. He explained that the duties of the safety checks included ensuring that the truck was empty before loading proceeded. He stated that as per the FAN, compartment 1, 2 and 3 were to be loaded with 7,000 litres, 9,000 litres and 9,000 litres respectively. The witness stated that there were CCTV cameras at the depot and that the same were at the time working.
27. The third prosecution witness was Chief Inspector of Police Fredrick Baraza (PW3) who testified and identified the motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which he stated he took possession of on 16th March, 2022 from Nelson Makokha, the officer in charge of security at KPC Kisumu depot. Witness identified an inventory (PExh4) that was prepared by Makokha. He explained that there were noticeable leaks in the 1st and 3rd compartment of the truck.
28. PW3 explained that at the time he took custody of the vehicle and trailer, the trailer was loaded with 30,307 litres of motor spirit premium, which he stated was also known as super petrol. He stated that he also took custody of three calibration sticks (PExh5 a to c) and chat (PExh6) that were used to measure the contents of the trailer tank, which he said were unique to the vehicle.
29. It is instructive from the record of the trial court that the contents of the vehicle were measured and the same was found to have (as per the trial court) 34,760 litres of petrol.
30. The witness stated that in the course of investigations, he was informed by Alphonce Mwakulomba, the in-charge safety at the Kisumu depot that motor vehicle registration number KBJ 564D/ZD 1473 that was being driven by the 2nd Appellant was cleared for loading of 25,000 litres of super petrol. The vehicle was then checked by Elizabeth Akinyi (PW5) and then proceeded to the loading island that was being manned, as per the duty roster (PExh16) by the 1st Appellant, after overtaking another vehicle. The officer produced the occurrence book (OB) (PExh17) that indicated that the 1st Appellant checked in at 1220hrs and checked out at 1930hrs on 8th September, 2022.
31. The officer stated that he recorded statements including that of the 1st Appellant, who indicated that his analysis had revealed anomalies in the loading of the vehicle. He stated that he received the system audit report and CCTV analysis report, which he produced as PExh18 and PExh19 respectively, and the CCTV compact discs as PExh20.
32. PW3 was cross-examined and stated that he was not aware that calibration and measurement of the contents of the vehicle were supposed to be accompanied with a certificate verifying the same, which was supposed to be sealed.
33. On being cross-examined further, PW3 stated that during his investigations, the owner of the vehicle, whom he did not name, indicated that the vehicle entered the KPC premises while loaded with some fuel and that he did not obtain any statement from the same person rebutting that position. He however contradicted himself by stating that he did not find out who the owner of the vehicle was.
34. On being questioned further, PW3 told the trial court that he obtained call logs from mobile phone service providers that showed that the three Appellants had been communicating. He again contradicted himself when cross-examined further by stating that from the call logs, there was no evidence of direct communication by or between the three Appellants.
35. The witness stated that he did not record the statement of the driver whose vehicle was overtaken by the 2nd Appellant’s vehicle.
36. On being re-examined, the witness stated that calibration, measurement and sealing was done in the presence of officials of KRA, KPC and Galana Oil Marketers.
37. The prosecution called Alphonce Tolle Mwakulomba as PW4. In his testimony, the witness told the trial court that he was a senior safety assistant at KPC Kisumu depot and that on 8th September, 2022, he inspected motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 using a check list (PExh8) that had 23 items and confirmed that the same was fit to be loaded with fuel. In particular, he confirmed that the three compartments were empty by opening the valves. He then cleared the vehicle for the next department.
38. Upon cross-examination, the witness stated that the completion of the inspection form was done through the computer system and not manually.
39. PW5 was Elizabeth Akinyi Gor, a security personnel at KPC Kisumu depot. In her evidence, the witness told the trial court that as per FAN ticket for motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, the driver of the vehicle was Joseph Mbugua.
40. The witness, without particularizing the date, (simply stating September, 2022) stated that she confirmed that the driver had the appropriate attire and further that the vehicle had no dangerous weapons and that it was properly sealed. The vehicle was then allowed into the KPC premises and that she left it there when she retired from work later that day. She stated that her duties were in respect of security matters and not the safety or fitness of the vehicle to carry fuel.
41. Benard Nalianya Wafula testified as the 6th prosecution witness (PW6) and told the trial court that he was an employee of KPC as a loading supervisor and his duties included managing the loading process.
42. The witness told the court that on 8th September, 2022, PW2 told him that motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 was of interest as there had been noted discrepancies on the amount of petrol previously loaded. PW2 told PW6 to ascertain the amount of fuel that the vehicle would draw on that day.
43. PW6 explained that the vehicle had an order of 25,000 litres of super petrol and was later that day loaded. As it was getting dark, PW5 put off the process to the next day and ensured that the driver sealed its three compartments. KPC’s security officer Martin Makokha (PW7) was mandated with ensuring the security of the vehicle that night.
44. The witness stated that on the next day, the fuel in the vehicle was measured and found to be 38,352 litres. It had an extra load of 13,852 litres. The vehicle was sealed and the matter taken over by investigators.
45. Upon being cross-examined, PW6 stated that he could not tell how the extra petrol of 13,852 litres came about. He stated that the duty of the 1st Appellant, who was also an employee of KPC, was to key into the system the contents of the FAN ticket.
46. The seventh prosecution witness was Martin Wanyonyi Makokha (PW7), a security officer at KPC Kisumu depot. PW7’s evidence before the trial court was that on 8th September, 2022, he received an email from PW6 allowing him to detain motor vehicle registration number KBJ 564D and trailer registration number ZD 1473 so that the same would not accrue overnight charges.
47. The witness explained that on the next morning, PW6 requested him to accompany him to the latter’s office, where PW2 joined them and the two briefed the witness that the vehicle had been found to be carrying an excess of 13,852 litres. PW7 requested that another measurement be done, and that the same was done in the presence of the 2nd Appellant who was the driver of the vehicle, PW6 and one Leonard Okango from Galana and the excess confirmed. PW7 reported the matter to KPC security office.
48. On being cross examined, PW7 stated that he was not present when the vehicle was sealed on 8th September, 2022. The witness stated that he had access to CCTV footage of 8th September, 2022.
49. The 8th prosecution witness was Moses Kipkemei Tarus (PW8), an engineer at KPC Kisumu depot, who told the trial court that on 8th September, 2022, he and PW6 were requested by PW2 to inspect, after loading, motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which was to be loaded with 25,000 litres of super petrol. As it was dark, the exercise was pushed to the next day.
50. PW8 stated that on 9th September, 2022, in the presence of the driver of the vehicle – the 2nd Appellant – and a representative from Galana, measurements were taken and the vehicle found to have an excess of 13,852 litres of super petrol, yet the KPC system indicated that 25,000 litres had been loaded. The truck was detained and the matter handed over to KPC’s security department.
51. PW9 was Catherine Kushakwenda, a clerk at KPC Kisumu depot. The witness identified the FAN ticket (PExh8) that was prepared for the transaction, which she printed out and gave to her supervisor Nathan Otieno. She explained that the contents of the ticket included the following:
- Name of the oil marketer – Galana Oil Company.
- Customer – Jamhuri Energy.
- Destination – Jamhuri Energy.
- Name of the driver – Joseph Mbugua.
- Registration number of the vehicle: KBJ 564D and trailer registration number ZD 1473.
- The product to be carried: super petrol.
- The product capacity: 7,000 litres in the first compartment, 9,000 litres in the second compartment and 9,000 litres in the third compartment.
- Owner of the vehicle/carrier – Njenege Company.
- Shipment number – 1001422728.
- Certifications – none.
52. The witness stated that there were no Energy and Petroleum Regulatory Authority (EPRA) certifications for the driver and the vehicle.
53. The witness, on being cross examined, stated that she did not confirm if the vehicle had excess fuel.
54. Anne Cherageni testified as the 10th prosecution witness (PW10) and told the trial court that she worked at KPC Kisumu station as a clerk and her duties included generating bills of lading (BOLs) which she would then forward to the requisite oil marketers.
55. With regard to this case, the witness told the court that on 8th September, 2022, PW9 presented to her the particulars of a motor vehicle, being registration number KBL 564D and asked her not to release the BOL and to alert him once the FAN ticket was presented. She stated that the driver of the vehicle presented to her the FAN ticket, which she immediately took to PW6, who later asked her to prepare the BOL (PExh10), which she did. She also prepared a certificate for the same (PExh14).
56. Upon cross-examination, PW10 stated that the BOL captured, inter alia, the amount of fuel in each compartment and that its contents had to correspond with those of the FAN ticket.
57. Martin Peter Ogendo Ogolla (PW11), the chief technician instrumentation and control at KPC testified as the prosecution’s eleventh witness.
58. The witness recalled the events of 8th September, 2022 and told the trial court that on that day he was informed by PW2 on the discrepancy in the loading of motor vehicle registration number KBJ 564D and trailer registration number ZD 1473, which had an excess of 13,582 litres above the required 25,000 litres. Upon checking the fuelfac system, PW11 found nothing unusual as the same showed that 25,000 litres had been dispensed from the KPC tanks. He however noted that the fuelfac system had been off from 1815hrs.
59. The witness further told the trial court that on 11th September, 2022, he checked the transaction and audit logs of the accuload that was connected to the fuelfac system and noted that the system had been disabled at about 1814hrs on 8th September, 2022. He prepared a system analysis report on his findings (PExh10) and a certificate for the same (PExh11). The witness explained that he noted from the system that at 1814hrs and 28 seconds, there was a parameter change from 0.99532 to 0.65805 and at 1848hrs and 54 seconds, a reversal of the parameter change was done. The changes were done through a key pad at the accuload.
60. Upon being cross-examined, Pw11 told the trial court that PExh11, whose date was stated as 5th October, 2022 did not give the dates of the activities it related to. He stated that he did not have exclusive access to the system, adding that several other persons, whose names he did not readily have, had access. The witness stated that access to the system was assigned by Engineer Quincy Ongondo. The witness further stated that there were no electronic footprints in the system and one could not therefore be able to tell who effected the changes.
61. The twelfth prosecution witness was Geoffrey Omeke Mosongo (PW12), an ICT officer at KPC headquarters in Nairobi.
62. In his testimony before the trial court, PW12 stated that on 15th September, 2022, on the basis of directions from his superiors, he went to the KPC Kisumu depot and joined PW11 whereby the two proceeded to analyze the system, its check point firewalls and server and obtained logs and other data. A report (PExh10) was prepared to that effect. The witness also prepared his certificate on the report (PExh12).
63. The witness explained that the system was designed in such a way that for one to access it, a VPN was required, then log in using a username and a password. The authentication was done through firewall.
64. The witness told the trial court that from the system, there was a request to log in done by Micah Mutai (the 3rd Appellant) on at 1654hrs and 24 seconds and the same successfully logged in until 1931hrs and 31 seconds on 8th September, 2022. The witness stated that the log in was done by the 3rd Appellant vide the IP address 172.29.10.57, who then proceeded to the Ps28ff server which had the IP address 172.18.17.111.
65. PW12 further explained that the system showed that the 3rd Appellant made changes to the system while logged in.
66. PW12 was cross-examined and told the trial court that he did not have exclusive access to the firewall asset log A05064035 and the CCTV server.
67. The witness stated that his certificate (PExh12) only covered the system IP addresses but did not capture the events of 15th September, 2022. He stated that the system had 5 administrators who had the capacity of assigning rights into the system, adding that the assignments were not included in the report (PExh10).
68. The witness further stated that the report did not indicate the IP address of the gadget that the 3rd Appellant used. He stated that the username and password were personal to the 3rd Appellant and denied that he, or any other person hacked the 3rd Appellant’s account and explained that if there was a hacking incident, a real time alert would have b
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