REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATES’ COURT

AT SHANZU

CR. NO. 1012 OF 2017

REPUBLIC…………………………………………………………………..PROSECUTION

-Versus-

JUMA KHAMISI MAJIBU

NICODEMUS MASENO BOGOYE……...…………………………………….ACCUSED

JUDGMENT

The accused persons are charged with attempted sabotage contrary to section 343 as read
together with section 390 of the Penal Code. The particulars are that on the 8 th day of August
2017 at Freretown in Kisauni Sub-county within Mombasa County jointly with others not before
court willfully and unlawfully attempted to disconnect power supply at Freretown polling station
with intent to interfere with the votes counting process.

The Prosecution Case

PW 1, No. 2010072651 PC Dennis Ochieng, attached at Shimo la Tewa stated that on 8/8/2017
he was at Shimo la Tewa as back up security for reinforcement. He was called to Freretown and
proceeded to the scene with his colleague. On arrival, they found some fracas and the two
accused persons already arrested. His role was to bring order to the place. The lighting was not
good as some places were in darkness.

On cross examination by Mr. Jumbale for the 1st accused, he stated that he was instructed to
ensure that there was order and that he proceeded to the scene because there was fracas. He could
not tell what had happened neither could he tell the circumstances that led to the arrest of the
accused persons.

On cross examination by Ms. Oweya for the 2 nd accused, he stated that he did not witness the
accused sabotaging the election.
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PW 2, 20100712573987 PC Dennis Mureithi, attached at Shimo Maximum recalled the
8/8/2017 he was attached to an aspiring independent MP Mohamed Ali in Freretown. At around
8pm, while outside the polling station, he saw two men standing below a transformer. The 1 st
accused was holding a plastic rod aiming at the transformer. They tried to inquire from him but
he did not identify himself as a KPLC employee. At the time of arrest, there was commotion but
they managed to arrest the accused persons and took them inside the polling station. He told the
court that he fired one shot to scare the crowd. He identified the accused persons as the ones
before court. At the time of the incident there was full ling both inside the polling station and
outside.

On cross examination by Mr. Jumbale, he stated that he saw two men standing below the
transformer and one of them was aiming a plastic rod at the transformer. There was no blackout
at the polling station. The transformer was 20metres from the polling station. During the time of
arrest there was only one plastic rod. He testified that he fired a shot because the crowd was
causing commotion. Other officers also fired shots. The 1 st accused told them that he was an
employee of KPLC but had no identification documents and that he had been sent by the
employer to execute instructions.

On cross examination by Mr. Oweya, he stated that the two people were aiming at the
transformer but could not tell what they were doing. Only the 1 st accused was holding the rod but
they were near each other.

PW 3, No. 32855 PC Abdalla Said Abdalla, attached at Shimo Main prison recalled on the
material day he was providing security for Mohamed Ali and were patrolling with the MP to
secure his votes. Upon arriving at Freretown, they noticed ten vehicles arriving there and
suspected something fishy. People descended the vehicles and approached the transformer. The
vehicles were flashing lights. One was carrying a long stick and was joining them under the
transformer. They arrested the person who was carrying the stick (accused 1). The 2 nd accused
was arrested because he alighted from the vehicle. He stated that the 1 st accused was the one
disconnecting the power. On asking what he was doing, he became violent. He testified that there
was no report made to KPLC at all.

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On cross examination by Mr. Jumbale, he read to the witness paragraph 2 of his statement which
read, “We found a group of people in three vehicles.” Other vehicles arrived, more than ten. He
did not have the registration numbers of the vehicles. He told the court that he was about 20feet
away from the vehicles. Five men approached the transformer. One was joining the bars. The
pole has a hook (seen) which is normally used to disconnect power. He thus concluded that they
wanted to disconnect the power at the polling station. The MP (Mohamed Ali) said that the
convoy was for his rival. The people were trying to remove an electric fuse. He didn’t know
whether the 1st accused’s interest was for any other place other than the polling station. By the
time PW 1 arrived, they had already arrested the accused persons. PW 2 and PC Lumumba
joined them later when some people had already escaped. He denied taking the 1st accused’s
phone. The accused explained that he was employed by KPLC but had no motor vehicle. The
KPLC authority did not recognize him. He stated that KPLC officers did not come to the defence
of the accused person at the police station. According to sources, KPLC officials went to the
police station but did not recognize the 1st accused. KPLC officials also went to the scene and
said that they did not send the 1st accused but did not capture this in his statement.

On cross examination by Ms. Oweya, he stated that he arrested the 2 nd accused because he came
with the vehicles but did not record the registration numbers of the vehicles. There were five
people at the transformer. The accused was not less than 5feet from the transformer. He stated
that there were over 20people because the motor vehicles were ten. The accused was spectating.
He did not stop the 5people from moving towards the transformer because they were free to go
anywhere. He became suspicious the moment the 1 st accused joined the hook and pointed at the
transformer. Their intention was to disconnect the power so as to sabotage the election.

PW 4, No. 48771 PC Joseph Kimanzi, attached at Nyali police station and the Investigating
Officer in this case recalled the 8th August 2017 at 8:30pm he was on duty as crime standby
together with Sgt. Bakari, PC Nyangweso and PC Abdullah. While on patrol, they were required
to proceed to Freretown where there was a shooting incident. They proceeded to the scene and
on arrival they found GSU officer, Administration Police and regular police officers who had
been called to the scene to safeguard the polling station.

They were informed that the bodyguards of Mohamed Ali and those of Saido had clashed outside
the polling station. Since there was no one to tell them what had happened they went back to the
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police station where they found the bodyguards of Mohamed with the accused persons alleging
that they had attempted to remove a fuse from the transformer outside the polling station. They
recorded their statements and he kept the insulation link stick-exhibit 1. He interrogated the
suspects whereby the 1st accused told him that he was a casual labourer at KPLC. He demanded
any identification but he had none. The 2nd accused said he was a matatu driver on Nyali-
Mwembe route but could not satisfy why he was at the scene knowing that he should have gone
home after voting.

The officers who arrested the accused persons informed him that five suspects had gone to the
scene in the same motor vehicle which was tinted. He was thus convinced that the purpose of
being at the scene was to commit an offence; to sabotage the election and charged them with the
offence before court. He stated that KPLC officers went to the station the following day and told
him that the 1st accused was a casual employee of KPLC. They showed him identification
documents.

On cross examination by Mr. Jumbale, he stated that the 1 st accused told him that he had been
called by one Elian Benzi of the emergency response but he did not interrogate the said Benzi
neither did he summon him. The officers from KPLC went to the station but he did not record
their statements. They said the 1st accused was a casual labourer but he did not believe them.
There was no complaint of power failure that was reported. He was shown a document (Dexh. 1)
showing power outage at Freretown at 1440hrs. DExh. 2, a letter dated 15/8/2017 confirms that
the 1st accused is a KPLC employee. The letter further states that on 8 th August 2017, the 1st
accused was on duty at Freretown. He maintained that the 1 st accused did not have an
employment badge.

He was further shown the Daily IMS Incidences Feedback Report (Dexhibit 3) which shows all
the incidences reported on the material date. Entry No. 12 shows that complaint No. 3445066-
replaced blown out LV tx fuse 1x200A Y. The witness maintained that the 1st accused was not an
employee of Kenya Power. He went to the scene and saw the transformer. The accused did not
manage to remove the fuse. He could not tell how many fuses are there in a transformer. He
admitted that a transformer supplies power to different places but the accused ought to have gone
home after voting. He maintained that the accused’s intention was to disconnect power. He did
not establish any connection between the accused and either of the contestants.
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On cross examination by Ms. Oweya, he stated that he was informed that the bodyguards of the
two contestants had clashed. He did not produce the investigation diary. He did not see the need
of bringing the bodyguards to testify.

On re-examination, he stated that the 1st accused did not avail any documents. Dexh. 1 does not
bear a letter head or a stamp from KPLC. It’s a printout. The operator’s comments are “No
power affecting 1 flat.” The detection date is 8/8/2017 at 14:39-19:22pm. He stated that Dexb. 3
does not show where the operation from KPLC was to take place. The name of the team leader is
Gira and none of the accused’s names are indicated. Dexh. 2 was authored on 15/8/2017.

The Defence case

DW 1, 1st accused, testified that he has worked as a casual labourer at KPLC for the last 7years
as per Dexh. 2. On 8/8/2017, he voted at Khadija primary school and went back home. At
6:00pm, he received a call from the Control Emergency Department that a fuse had blown out at
a transformer in Freretown. He took a reflector, two dip sticks and proceeded to the transformer.
However, the dip sticks were short so he went back home and took more. He got the required
length and proceeded to the ground and started testing the transformer where he established that
the fuse had blown and started replacing the same. However, there were some sparks which
attracted the police officers on guard. They beat him, took his phone and arrested him. They
could not listen to him.

His employer had sent a team to the scene to inform the police that he had been sent to work but
the police officers could not listen. The police insisted that he had been sent by Saido and Abu.
They were then driven to Nyali. His employer (immediate supervisor) went to the station and
explained that the accused was their employee but the police insisted on taking his fingerprints.
He denied going to the scene in a convoy of vehicles. He testified that the last person he had
talked to was the emergency desk and that he lived only two blocks from the place where he had
gone to fix the transformer. There was an area that did not have power including his place of
residence.

He told the court that the transformer had two circuits and that the second circuit is the one that
had failed so there is no way he would have interfered with the polling station. Whenever a
customer makes a report, s/he gives a telephone number and a reference number. Dexh. 1 shows
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that the complaint was reported at 2:40pm and the action was taken at 7:22pm (when it was
resolved). And after a complaint is resolved, a report is made in Dexh. 3. He stated that he did
not complete the work but the same was completed by the team that went to the ground after his
arrest. He stated that he is the one who sorts that transformer whenever it has a problem.

On cross examination by the prosecution, he stated that he works during the day only and that he
does not have an employment card. They just use their IDs. He stated that he does not have a
payslip and that they are usually paid through a cheque or M-pesa. He received a call from Elias
Benzi from the emergency department at Mbaraki. He was all alone and it was normal for him to
work alone because it was a minor issue. He stated that he usually tests the transformer and if he
established that the fuse is blown out he calls the emergency department who in turn sends a
technician. There had been an outage from 2:00pm as per the report (Dexh. 1). He was called at
6:00 to proceed and check the same as some customers had been affected. The people who went
to complete the replacement were driver Wasike, Baithe (technician) and Peter (the team leader).
The people who followed him to the police station were Masinde (security officer), Peter Arisa
(engineer), Mark (a technician), Francis Kenga (Craftsman) and Ojijo Odemo (an engineer).
They spoke to the OCS in his presence who demanded for a letter but he was taken to court. He
told the court that he usually wears a reflector jacket inscribed with the words “KPLC First Aid.”
There was tension because of the election mood. He was aware the transformer was serving the
polling station.

DW 2, Elias Benzi, Staff No. 11996, an employee of KPLC since 27/11/1989 and based with the
Emergency department as controller recalled the material day he was on duty at the control desk.
They received a complaint from a customer that some houses did not have electricity including
that of the reportee. The complaint was received in Nairobi but they saw it in the system (Dexh.1
which he generated). Other complaints followed thereafter. He realized there was a problem at
transformer No. 19643 Frere primary school. Being a polling station, they had deployed the 1 st
accused to be on standby and in case of any technical issues he was to contact the office. He
called the 1st accused to proceed to the transformer and check the problem. Another team also
proceeded to the ground and established there was a problem. It was his evidence that the 1 st
accused had instructions to work on the transformer. He stated that Dexh. 3 is a feedback report.
The 1st accused was arrested before giving a feedback.

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On cross examination by the prosecution, he stated that the blackout was reported at 2:00pm and
he sent Juma (accused 1) at 7:00pm. They did not know what the problem was but could have
been due to power surge or overload leading to the blow up of the fuse. They went to the ground
and tried to explain to the police that they had sent the accused but did not listen to them. He
stated that they do not buy fuses from the ordinary shops but they keep theirs at the stores. They
had decided that people who live near transformers be on standby.

DW 3, Haron Wasike, Staff No. 18478 and the Regional Networking under the Emergency
department recalled on the material day they were called by the controller to proceed to
Freretown School where there was power interruption. On reaching there, they found a
commotion by people and tried to establish what was happening when they were informed that
the accused had removed a fuse. He identified him as one of their colleagues. They had fuses in
the car and replaced it. They identified themselves but for the sake of the accused’s safety he had
to be removed from the scene. He testified that the 1st accused was at the scene under instructions
from the control room.

On cross examination by the prosecution, he stated that when he got at the scene, there was no
power because the fuse had been removed. The polling station was in darkness.

On re-examination, he stated that there were two transformers serving the area but they were not
together. The one from which the accused had removed the fuse was serving the residential
areas. The area of coverage was including half of the polling station. The polling station had
power but there was darkness outside.

DW 4, Patrick Otieno, Staff No. 16434, an employee of KPLC attached to Nyali feeder
recalled the 8/8/2017 when he got some news that one of their staff members had been arrested
from the Emergency department. They proceeded to Nyali police station and asked for
permission from the OCS to see him who in turn allowed them. They explained to the IO that the
1st accused had authority to be at the police station. The OCS demanded for documents to prove
that he was an employee. They could not obtain the documents as the HR had gone out of office.
The document was later availed-Dexhibit 2 (letter of employment).

On cross examination by the prosecution, he stated that he went to the police station the
following day and that he is not the author of Dexh. 2.
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DW 5, accused 2, stated that he lives in Bombolulu and works as a matatu driver. He recalled
the 8/8/2017 he had gone to Freretown to pick his keys from a friend. He could not trace his
friend’s house as they as so close. He was waiting for him and there were so many bodyguards
with Mohamed Ali. They were bundled in a probox and taken to the police station. He did not
know the 1st accused

On cross examination by the prosecution, he stated that he was not arrested at the transformer
and that it was between 7:00-8:00pm. He was not carrying anything.

Issue for determination

1. Whether the charge is defective

2. Whether the accused persons attempted to disconnect power supply with intent to
interfere with votes counting process

Analysis and disposition

Whether the Charge is defective and whether the accused persons attempted to disconnect
power supply with intent to interfere with votes counting process

I shall deal with these issues together.

In his final submissions, counsel for the 1st accused submitted that the charge sheet as drawn was
incurably defective since it does not describe any offence known in law. The Penal Code under
section 343 only provides for the offence of sabotage. It states, “Any person who, wilfully and
unlawfully, destroys or damages, or does any act with intent to, or knowing it to be likely that
such act will, impair the usefulness or efficiency or prevent or impede the working of, any
property used or intended to be used in the service of the Government or any local authority, or
for the purposes of any airport or air service or any supply of water or electricity to any person
or community of persons, or in the performance of any other service essential to the life of the
community, is guilty of an offence and –

(a) if the offence is committed with intent to endanger life or with the knowledge that it is likely
to endanger life, is liable to imprisonment for life; and

(b) in any other case, is liable to imprisonment for a term not exceeding five years.”

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A cursory look of the charge as crafted is that the accused persons are charged with attempted
sabotage contrary to section 343 as read together with section 390 of the Penal Code. It is worth
noting that the latter section was repealed by Act No. 10 of 1969.

The question as to whether a charge is defective or not is well settled as was stated by Justice
Joel Ngugi in B N D v Republic [2017] eKLR thus, “…the test for whether a charge sheet is
fatally defective is a substantive one: was the accused charged with an offence known to law
and was it disclosed in a sufficiently accurate fashion to give the accused adequate notice of the
charges facing him" If the answer is in the affirmative, it cannot be said in any way other than a
contrived one that the charges were defective. In this case, the Appellant was charged under
section 8(1) (3) of the Sexual Offences Act. No such section exists in the Act.

The question is: did this prejudice the Appellant and occasion a miscarriage of justice" I do not
think so. There is no question in my mind that the Accused Person clearly understood the
charges facing him well enough to understand the ingredients of the crime charged so that he
could fashion his defence. In this case, he understood it well enough to offer an explanation
when the facts were read out to him.”

“The test for a defective charge sheet is a substantive one, not a formalistic one and when it is
used here it establishes that the charges gave fair notice to the Accused Person to the charges he
was facing, and the trial was fair in a substantive sense. No miscarriage of justice was
occasioned by the typographical error in the charge sheet.”

It is notable that the common denominator in the above authority is that an accused person
should be charged with an offence known to law. If there is no statute creating the specific
offence before court, the end result that should follow is an acquittal. In the absence of such a
crucial ingredient, then the court should not waste time in determining whether the ingredients of
the offence were proved. This court pointed out in Republic versus Hania Said Sagar & 3
others Criminal Case No. 935 of 2016 (unreported) at paragraph 248 that, “…under Article 159
(2) (d) of the Constitution, the guiding principle is that justice shall be administered without
undue regard to procedural technicalities. In a case where evidence clearly shows that an
offence has been committed, the society would go into shock and even ridicule the court for
acquitting an accused person just because the charge was not properly drafted or was not

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drafted in a particular manner. What is important is that the accused knows and understands the
nature of offence that she is facing.”

However, the court should only invoke Article 159(2)(d) where the issue in question is not of a
substantive nature such as a typographical error. In a case such as the one before me where the
Investigating Officer charges an accused with an offence that is not provided for by any law, to
my mind, that is a substantive question and would prejudice the accused persons if I were to
proceed and convict them even on the strongest of evidence. I find that the charge was hurriedly
and carelessly drafted not to mention that the drafter never noticed that the latter section is non-
existent. The same is incurably defective.

Even assuming that the charge as drafted is non-defective, the evidence on record is scanty and
cannot secure a conviction against the accused persons for the following reasons.

1. The particulars of the offence are that “the accused persons willfully and unlawfully
attempted to disconnect power supply…” As provided under section 343, the use of the
words “willfully and unlawfully” form the mens rea for the offence of sabotage. The
word “and” is used conjunctively meaning that in order to prove an offence under that
section, then the prosecution must show that the accused persons acted willfully or
deliberately without coercion and that they acted unlawfully; without authority.
2. With regards to the 1st accused person, the defence led very strong evidence to the effect
that he was at the scene under instructions from his employer, KPLC as corroborated by
DW 2, DW 3 and DW 4.
3. Despite the fact that the 1st accused’s colleagues tried to persuade the IO that he was their
colleague, the IO was adamant and maintained even on cross-examination that the 1 st
accused was not an employee of KPLC for reasons only known to him. The 1 st accused’s
employment letter was produced as exhibit 2.
4. It was the defence case that the transformer in question had a problem and as confirmed
by the feedback report (Dexh. 3), the same was repaired by replacing the blown up fuse.
5. There was no evidence to the effect that the 1st accused person was affiliated to any of the
two contestants so as to sabotage electricity for the benefit of any of them.

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 6. When DW 2, DW 3 and DW 4 went to Nyali police station and informed the IO that the
1st accused was their colleague, and even after production of letter of employment, the IO
did not record their statements for reasons known to him.
7. There was evidence (Dexh. 2) that a complaint had been lodged by a customer that there
was electricity problem at the residential areas near Freretown primary school and action
was taken to remedy the situation as per Dexh. 3.
8. Further as alleged in the charge sheet that the intention of the accused persons was to
interfere with the votes counting process, no evidence was led to the effect that there was
ever a blackout at the polling station. This fact was admitted by PW 3, one of the
arresting officers.
9. The evidence of DW 1 and DW 3 that the areas affected by the blackout were the
residential areas and not the polling station was not controverted.
10. There was no evidence linking the 2nd accused to the offence in question. He only
happened to be a victim of circumstances leading to his arrest and charge before court.

All the above factors point to one conclusion, that is, the accused persons did not commit the
offence of sabotage or even attempt to commit the same. The upshot is that the prosecution has
failed to prove its case beyond reasonable doubt. I accordingly acquit the accused persons under
section 215 of the Criminal Procedure Code.

Judgment read, delivered and signed this………….day of………………………………..2018

R/A: 14days

………………………………

HON. D. MOCHACHE

SPM

In the presence of:

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