1. The appellant, William Thomas Achoku, was arraigned before the Chief Magistrate’s Court at Nyamira in Criminal CaseE648 of 2024 facing two counts under the Energy Act No. 1 of 2019 namely: -
i. Unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act No. 1 of 2019.
ii. Fraudulent consumption of electrical energy contrary to section 168(1)(f) of the Energy Act No. 1 of 2019.
2. The particulars of the charges were that on 26th June 2024 at Ekerenyo Market within Nyamira County, the appellant unlawfully connected electrical energy through an illegal electricity line without the consent of Kenya Power and Lighting Company Limited.
3. Upon conclusion of the trial, the appellant was convicted on both counts and sentenced to pay a fine of KES.1,000,000 and in default to serve one-year imprisonment on each count.
4. Being dissatisfied with both conviction and sentence, the appellant preferred the present appeal challenging the findings of the subordinate court on the grounds: -
1) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case despite the charge sheet being defective for lack of clarity and specificity.
2) That the learned trial magistrate erred in law and fact in holding that the appellant fraudulently consumed electrical energy contrary to section 168(1) of the Energy Act No. 1 of 2019.
3) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt despite the evidence tendered being insufficient and inconsistent and failing to establish a nexus between the appellant and the alleged offence.
4) That the learned trial magistrate erred in law and fact in failing to take into account glaring inconsistencies in the prosecution case and thereby failed to accord the appellant the benefit of doubt.
5) That the learned trial magistrate erred in law and fact in failing to reconcile the testimony of the complainant with that of the other witnesses.
6) That the learned trial magistrate erred in law and fact in failing to consider the evidence adduced by the defence.
7) That the learned trial magistrate erred in law and fact in finding that the appellant had a case to answer despite the alleged compelling evidence on record.
8) That the learned trial magistrate erred in law and fact in failing to accord the appellant the benefit of doubt despite the evidence on record.
5. On the basis of the foregoing grounds, the appellant urged this court to allow the appeal, quash the conviction, set aside the sentence imposed by the trial court and order that he be set at liberty.
6. In the written submissions dated 13th April 2026, the respondent urged this court to allow the appeal on the grounds that the evidence tendered before the trial court allegedly did not support the particulars contained in the charge sheet and further that ownership of the premises where the illegal electricity connection was allegedly discovered had not been established. The respondent further submitted that the photographs produced before the trial court did not clearly identify the appellant and that none of the prosecution witnesses testified that the appellant permitted the hooking of the 2.5 mm wire as alleged in Count I. However, notwithstanding the respondent’s concession of the appeal, this court remains under a duty to independently re-evaluate the entire evidence on record and arrive at its own conclusions.
7. This being a first appeal, this court is under a duty to reconsider and re-evaluate afresh the evidence tendered before the trial court and thereafter draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In Okeno v Republic [1972] EA 32, the Court stated that a first appellate court must subject the evidence as a whole to fresh and exhaustive examination and arrive at its own conclusions. The same principle was reiterated in Kiilu & Another v Republic [2005] 1 KLR 174 where the Court emphasized that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions.
8. I have accordingly reconsidered the proceedings before the trial court, the judgment appealed against, the sentence imposed, the Petition of Appeal and the written submissions filed the Appellant and the Respondent both dated 13th April 2026 by the parties and the following issues arise for determination: -
1) Whether the charge sheet was defective.
2) Whether the prosecution proved the offences beyond reasonable doubt.
3) Whether the appellant’s defence was properly considered.
4) Whether the sentence imposed was lawful and appropriate.
9. On the first issue, the appellant challenged the validity of the charge sheet contending that the same lacked clarity and specificity and further failed to establish a nexus between him and the alleged illegal electricity connection. The appellant submitted that the particulars as framed did not disclose who installed the electrical apparatus or how he was connected to the alleged unlawful connection.
10. In support of that contention, the appellant relied on several authorities relating to defective charge sheets and the prejudice likely to be occasioned to an accused person where a charge fails to properly disclose the offence facing him. Reliance was further placed on Dunga v Republic [2023] KEHC 17794 (KLR) where the court held that a charge sheet becomes defective where it does not accord with the evidence adduced in support thereof and where such defect prejudices the accused person. In Peter Ngure Mwangi v Republic [2014] eKLR, the court stated that a charge may be defective where there exists variance between the particulars in the charge sheet and the evidence adduced before court. The appellant also relied on Benard Ombuna v Republic [2019] eKLR where the court emphasized that the test of whether a charge sheet is fatally defective is whether prejudice has been occasioned to the accused person.
11. The respondent similarly submitted that none of the prosecution witnesses testified that the appellant permitted the hooking of the 2.5 mm wire as alleged in Count I and therefore the evidence tendered before the trial court did not correspond with the particulars contained in the charge sheet.
12. I have carefully considered the rival submissions together with the charge sheet forming part of the Record of Appeal. Section 134 of the Criminal Procedure Code requires every charge to contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The ultimate consideration therefore is whether the accused person was made sufficiently aware of the case facing him and whether any prejudice was occasioned by the manner in which the charge was framed.
13. In the present appeal, the charge sheet clearly disclosed the offences facing the appellant, the statutory provisions under which the charges were brought, the date and place of commission of the offences and the particulars constituting the offences complained of.
14. Further, unlike the circumstances in Yosefu & Another v Uganda [1960] EA 236 where essential ingredients of the offence had been omitted altogether, the present charge sheet disclosed all the ingredients of the offences created under section 168(1)(c) and section 168(1)(f) of the Energy Act.
15. Equally, unlike the circumstances in Wekesa v Republic [2023] KEHC 22365 (KLR) where the defects complained of were found to have occasioned prejudice to the accused persons, no prejudice has been demonstrated in the present appeal. The appellant fully participated in the proceedings, extensively cross-examined the prosecution witnesses and tendered a defence specifically directed at the allegations facing him. I therefore find no merit in the contention that the charge sheet was fatally defective.
16. The appellant further challenged the sufficiency of the prosecution evidence and submitted that the offences were not proved beyond reasonable doubt. He argued that no fingerprints were lifted from the alleged illegal electricity connection, no independent witnesses were called and no sufficient nexus was established between him and the unlawful electricity supply. The appellant further contended that the photographs produced before the trial court constituted electronic evidence which did not comply with section 106B of the Evidence Act and were therefore inadmissible. He additionally submitted that the prosecution failed to call the landlord or owner of the premises to establish ownership of the premises where the illegal electricity connection was allegedly discovered. However, even assuming the photographs were excluded from consideration, the court would still be required to examine whether the oral and other documentary evidence on record sufficiently established the offences charged.
17. The respondent similarly urged this court to find that the evidence on record did not support the charge sheet and further submitted that ownership of the premises where the illegal electricity connection was allegedly discovered had not been established.
18. I have carefully reconsidered and re-evaluated the evidence tendered before the subordinate court. The prosecution case was that officers from Kenya Power and Lighting Company received information regarding a blackout at Ekerenyo Market and upon visiting the scene discovered that electricity had been illegally tapped from a transformer and connected directly to premises occupied by the appellant.
19. The prosecution witnesses testified that upon arriving at the scene, they found the illegal electricity connection supplying electricity to premises associated with the appellant and further established that the appellant had no lawful electricity connection.
20. In his defence, the appellant admitted occupying the premises though he denied responsibility for the illegal electricity connection and instead blamed his sons.
21. Having independently reconsidered the evidence on record, I do not agree with the position taken by the respondent that the evidence did not support the charges preferred against the appellant. Whereas the respondent submitted that ownership of the building had not been established, the evidence before the trial court was not merely directed at ownership of the premises but rather at occupation and use of the premises connected to the illegal electricity line.
22. The appellant himself admitted occupying the premises and his defence was essentially that the illegal connection may have been undertaken by his sons. In my view, that defence did not displace the prosecution evidence linking the illegal electricity connection to premises occupied and utilized by the appellant.
23. Further, unlike the circumstances in Macharia v Republic [2022] KEHC 15157 (KLR) where the prosecution failed to establish sufficient linkage between the accused person and the offence complained of, the present appeal contains direct evidence linking the illegal electricity connection to premises admittedly occupied by the appellant.
24. Similarly, I do not find that the trial court acted on no evidence or reached conclusions unsupported by the evidence so as to warrant appellate interference under the principles set out in Peters v Sunday Post [1958] EA 424.
25. Consequently, notwithstanding the respondent’s concession of the appeal, this court remains duty bound to independently reconsider and re-evaluate the entire evidence on record and arrive at its own conclusions. Having carefully done so, I am satisfied that the prosecution proved the offences facing the appellant beyond reasonable doubt and that the conviction entered by the trial court was properly founded on the evidence tendered before it.
26. The appellant further contended that the trial court failed to consider his defence and ignored exculpatory evidence tendered in his favour. Appellant stated that he merely occupied the premises and that the illegal electricity connection may have been undertaken by other persons including his sons. It was therefore argued that the evidence tendered by the prosecution did not sufficiently exclude the possibility that other persons were responsible for the illegal connection.
27. I have carefully examined the judgment of the subordinate court together with the defence tendered before the trial court. The record demonstrates that the appellant’s defence was duly considered though ultimately rejected by the trial court.
28. Whereas the burden remained throughout upon the prosecution to prove its case beyond reasonable doubt, the evidence tendered before the trial court established that the illegal electricity connection was traced directly to premises occupied and utilized by the appellant. The prosecution witnesses testified that the appellant was found at the scene and that the illegal connection supplied electricity to the premises under his occupation. The totality of the evidence tendered before the trial court established that the appellant knew of and acquiesced in the illegal electricity connection.
29. The appellant did not tender any evidence capable of displacing the prosecution case or demonstrating that the illegal connection had been undertaken without his knowledge or acquiescence. In the circumstances, I find no basis for faulting the conclusion reached by the subordinate court regarding the appellant’s defence.
30. The appellant lastly challenged the sentence imposed by the trial court and contended that the same was harsh and excessive. The appellant was convicted under section 168(1)(c) and section 168(1)(f) of the Energy Act No. 1 of 2019. Section 168(1) of the Energy Act provides as follows:
“A person who—
(c) lays, erects or installs or permits to be laid, erected or installed any conductor or apparatus and connects it, or permits it to be connected, with any electric supply line through which electrical energy is supplied by a licensee, without the consent of the licensee; or
(f) in any case where the quantity of the supply of electrical energy is not ascertained by a meter, uses any apparatus or device, other than what he has contracted to pay for or uses such apparatus or device at any other time than the time specified and for which he has been contracted to pay,commits an offence and shall on conviction be liable to a fine of not less than one million shillings, or a term of imprisonment of not less than one year, or to both.”
31. The sentence imposed fell squarely within the parameters prescribed under section 168 of the Energy Act and I am therefore not persuaded that the same was unlawful or excessive.
32. In the result, I find that the appeal against both conviction and sentence lack merit and is hereby dismissed in its entirety. The conviction entered by the trial court is hereby upheld and the sentence affirmed.
i. Unauthorized installation of electrical apparatus contrary to section 168(1)(c) of the Energy Act No. 1 of 2019.
ii. Fraudulent consumption of electrical energy contrary to section 168(1)(f) of the Energy Act No. 1 of 2019.
2. The particulars of the charges were that on 26th June 2024 at Ekerenyo Market within Nyamira County, the appellant unlawfully connected electrical energy through an illegal electricity line without the consent of Kenya Power and Lighting Company Limited.
3. Upon conclusion of the trial, the appellant was convicted on both counts and sentenced to pay a fine of KES.1,000,000 and in default to serve one-year imprisonment on each count.
4. Being dissatisfied with both conviction and sentence, the appellant preferred the present appeal challenging the findings of the subordinate court on the grounds: -
1) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case despite the charge sheet being defective for lack of clarity and specificity.
2) That the learned trial magistrate erred in law and fact in holding that the appellant fraudulently consumed electrical energy contrary to section 168(1) of the Energy Act No. 1 of 2019.
3) That the learned trial magistrate erred in law and fact in holding that the prosecution had proved its case beyond reasonable doubt despite the evidence tendered being insufficient and inconsistent and failing to establish a nexus between the appellant and the alleged offence.
4) That the learned trial magistrate erred in law and fact in failing to take into account glaring inconsistencies in the prosecution case and thereby failed to accord the appellant the benefit of doubt.
5) That the learned trial magistrate erred in law and fact in failing to reconcile the testimony of the complainant with that of the other witnesses.
6) That the learned trial magistrate erred in law and fact in failing to consider the evidence adduced by the defence.
7) That the learned trial magistrate erred in law and fact in finding that the appellant had a case to answer despite the alleged compelling evidence on record.
8) That the learned trial magistrate erred in law and fact in failing to accord the appellant the benefit of doubt despite the evidence on record.
5. On the basis of the foregoing grounds, the appellant urged this court to allow the appeal, quash the conviction, set aside the sentence imposed by the trial court and order that he be set at liberty.
6. In the written submissions dated 13th April 2026, the respondent urged this court to allow the appeal on the grounds that the evidence tendered before the trial court allegedly did not support the particulars contained in the charge sheet and further that ownership of the premises where the illegal electricity connection was allegedly discovered had not been established. The respondent further submitted that the photographs produced before the trial court did not clearly identify the appellant and that none of the prosecution witnesses testified that the appellant permitted the hooking of the 2.5 mm wire as alleged in Count I. However, notwithstanding the respondent’s concession of the appeal, this court remains under a duty to independently re-evaluate the entire evidence on record and arrive at its own conclusions.
7. This being a first appeal, this court is under a duty to reconsider and re-evaluate afresh the evidence tendered before the trial court and thereafter draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. In Okeno v Republic [1972] EA 32, the Court stated that a first appellate court must subject the evidence as a whole to fresh and exhaustive examination and arrive at its own conclusions. The same principle was reiterated in Kiilu & Another v Republic [2005] 1 KLR 174 where the Court emphasized that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions.
8. I have accordingly reconsidered the proceedings before the trial court, the judgment appealed against, the sentence imposed, the Petition of Appeal and the written submissions filed the Appellant and the Respondent both dated 13th April 2026 by the parties and the following issues arise for determination: -
1) Whether the charge sheet was defective.
2) Whether the prosecution proved the offences beyond reasonable doubt.
3) Whether the appellant’s defence was properly considered.
4) Whether the sentence imposed was lawful and appropriate.
9. On the first issue, the appellant challenged the validity of the charge sheet contending that the same lacked clarity and specificity and further failed to establish a nexus between him and the alleged illegal electricity connection. The appellant submitted that the particulars as framed did not disclose who installed the electrical apparatus or how he was connected to the alleged unlawful connection.
10. In support of that contention, the appellant relied on several authorities relating to defective charge sheets and the prejudice likely to be occasioned to an accused person where a charge fails to properly disclose the offence facing him. Reliance was further placed on Dunga v Republic [2023] KEHC 17794 (KLR) where the court held that a charge sheet becomes defective where it does not accord with the evidence adduced in support thereof and where such defect prejudices the accused person. In Peter Ngure Mwangi v Republic [2014] eKLR, the court stated that a charge may be defective where there exists variance between the particulars in the charge sheet and the evidence adduced before court. The appellant also relied on Benard Ombuna v Republic [2019] eKLR where the court emphasized that the test of whether a charge sheet is fatally defective is whether prejudice has been occasioned to the accused person.
11. The respondent similarly submitted that none of the prosecution witnesses testified that the appellant permitted the hooking of the 2.5 mm wire as alleged in Count I and therefore the evidence tendered before the trial court did not correspond with the particulars contained in the charge sheet.
12. I have carefully considered the rival submissions together with the charge sheet forming part of the Record of Appeal. Section 134 of the Criminal Procedure Code requires every charge to contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The ultimate consideration therefore is whether the accused person was made sufficiently aware of the case facing him and whether any prejudice was occasioned by the manner in which the charge was framed.
13. In the present appeal, the charge sheet clearly disclosed the offences facing the appellant, the statutory provisions under which the charges were brought, the date and place of commission of the offences and the particulars constituting the offences complained of.
14. Further, unlike the circumstances in Yosefu & Another v Uganda [1960] EA 236 where essential ingredients of the offence had been omitted altogether, the present charge sheet disclosed all the ingredients of the offences created under section 168(1)(c) and section 168(1)(f) of the Energy Act.
15. Equally, unlike the circumstances in Wekesa v Republic [2023] KEHC 22365 (KLR) where the defects complained of were found to have occasioned prejudice to the accused persons, no prejudice has been demonstrated in the present appeal. The appellant fully participated in the proceedings, extensively cross-examined the prosecution witnesses and tendered a defence specifically directed at the allegations facing him. I therefore find no merit in the contention that the charge sheet was fatally defective.
16. The appellant further challenged the sufficiency of the prosecution evidence and submitted that the offences were not proved beyond reasonable doubt. He argued that no fingerprints were lifted from the alleged illegal electricity connection, no independent witnesses were called and no sufficient nexus was established between him and the unlawful electricity supply. The appellant further contended that the photographs produced before the trial court constituted electronic evidence which did not comply with section 106B of the Evidence Act and were therefore inadmissible. He additionally submitted that the prosecution failed to call the landlord or owner of the premises to establish ownership of the premises where the illegal electricity connection was allegedly discovered. However, even assuming the photographs were excluded from consideration, the court would still be required to examine whether the oral and other documentary evidence on record sufficiently established the offences charged.
17. The respondent similarly urged this court to find that the evidence on record did not support the charge sheet and further submitted that ownership of the premises where the illegal electricity connection was allegedly discovered had not been established.
18. I have carefully reconsidered and re-evaluated the evidence tendered before the subordinate court. The prosecution case was that officers from Kenya Power and Lighting Company received information regarding a blackout at Ekerenyo Market and upon visiting the scene discovered that electricity had been illegally tapped from a transformer and connected directly to premises occupied by the appellant.
19. The prosecution witnesses testified that upon arriving at the scene, they found the illegal electricity connection supplying electricity to premises associated with the appellant and further established that the appellant had no lawful electricity connection.
20. In his defence, the appellant admitted occupying the premises though he denied responsibility for the illegal electricity connection and instead blamed his sons.
21. Having independently reconsidered the evidence on record, I do not agree with the position taken by the respondent that the evidence did not support the charges preferred against the appellant. Whereas the respondent submitted that ownership of the building had not been established, the evidence before the trial court was not merely directed at ownership of the premises but rather at occupation and use of the premises connected to the illegal electricity line.
22. The appellant himself admitted occupying the premises and his defence was essentially that the illegal connection may have been undertaken by his sons. In my view, that defence did not displace the prosecution evidence linking the illegal electricity connection to premises occupied and utilized by the appellant.
23. Further, unlike the circumstances in Macharia v Republic [2022] KEHC 15157 (KLR) where the prosecution failed to establish sufficient linkage between the accused person and the offence complained of, the present appeal contains direct evidence linking the illegal electricity connection to premises admittedly occupied by the appellant.
24. Similarly, I do not find that the trial court acted on no evidence or reached conclusions unsupported by the evidence so as to warrant appellate interference under the principles set out in Peters v Sunday Post [1958] EA 424.
25. Consequently, notwithstanding the respondent’s concession of the appeal, this court remains duty bound to independently reconsider and re-evaluate the entire evidence on record and arrive at its own conclusions. Having carefully done so, I am satisfied that the prosecution proved the offences facing the appellant beyond reasonable doubt and that the conviction entered by the trial court was properly founded on the evidence tendered before it.
26. The appellant further contended that the trial court failed to consider his defence and ignored exculpatory evidence tendered in his favour. Appellant stated that he merely occupied the premises and that the illegal electricity connection may have been undertaken by other persons including his sons. It was therefore argued that the evidence tendered by the prosecution did not sufficiently exclude the possibility that other persons were responsible for the illegal connection.
27. I have carefully examined the judgment of the subordinate court together with the defence tendered before the trial court. The record demonstrates that the appellant’s defence was duly considered though ultimately rejected by the trial court.
28. Whereas the burden remained throughout upon the prosecution to prove its case beyond reasonable doubt, the evidence tendered before the trial court established that the illegal electricity connection was traced directly to premises occupied and utilized by the appellant. The prosecution witnesses testified that the appellant was found at the scene and that the illegal connection supplied electricity to the premises under his occupation. The totality of the evidence tendered before the trial court established that the appellant knew of and acquiesced in the illegal electricity connection.
29. The appellant did not tender any evidence capable of displacing the prosecution case or demonstrating that the illegal connection had been undertaken without his knowledge or acquiescence. In the circumstances, I find no basis for faulting the conclusion reached by the subordinate court regarding the appellant’s defence.
30. The appellant lastly challenged the sentence imposed by the trial court and contended that the same was harsh and excessive. The appellant was convicted under section 168(1)(c) and section 168(1)(f) of the Energy Act No. 1 of 2019. Section 168(1) of the Energy Act provides as follows:
“A person who—
(c) lays, erects or installs or permits to be laid, erected or installed any conductor or apparatus and connects it, or permits it to be connected, with any electric supply line through which electrical energy is supplied by a licensee, without the consent of the licensee; or
(f) in any case where the quantity of the supply of electrical energy is not ascertained by a meter, uses any apparatus or device, other than what he has contracted to pay for or uses such apparatus or device at any other time than the time specified and for which he has been contracted to pay,commits an offence and shall on conviction be liable to a fine of not less than one million shillings, or a term of imprisonment of not less than one year, or to both.”
31. The sentence imposed fell squarely within the parameters prescribed under section 168 of the Energy Act and I am therefore not persuaded that the same was unlawful or excessive.
32. In the result, I find that the appeal against both conviction and sentence lack merit and is hereby dismissed in its entirety. The conviction entered by the trial court is hereby upheld and the sentence affirmed.