Court frees scrap metal dealer in vandalism case against Kenya Power over insufficient evidence

The court found that the prosecution failed to prove its case against Luo Minghui beyond a reasonable doubt and acquitted her on all counts under Section 215 of the Criminal Procedure Code.

The accused had faced three criminal counts and two alternative charges, including stealing copper valued at more than Ksh.1.3 million, handling stolen goods contrary to Section 322 of the Penal Code, and willfully handling vandalised energy equipment contrary to Section 169(1)(c) of the Energy Act, 2019.

The prosecution called seven witnesses, including officials from KETRACO, Kenya Power and officers from the Directorate of Criminal Investigations. They testified that copper wires, copper bars, transformer fuses and earthing conductors were allegedly recovered from the premises of Jinxin Commercial Limited in Athi River on June 12 and 13, 2023.

During cross-examination, however, several prosecution witnesses conceded that none of the recovered items bore unique serial numbers or markings identifying them as property of KETRACO or Kenya Power. No witness testified to having seen the accused steal any copper material.

The court was also told that no inventory of recovered items was prepared or produced in court, and no photographs or CCTV footage were availed despite claims that such evidence existed.

One of the investigating officers further admitted that three other suspects had initially been arrested and later released, while the accused was not a suspect at the beginning of the investigations.

During her defence, lawyer Ceceil Miller told the court that  Luo Minghui t works at Jinxin Commercial Limited, a licensed scrap metal dealership, and that the business purchases scrap from licensed suppliers. She denied any involvement in theft or vandalism of power infrastructure.

Her defence witness, the company’s manager, confirmed that police officers collected scrap material from the godown floor and stated that the company lawfully handles large quantities of scrap metal sourced from licensed dealers.

In its judgment, the court held that the prosecution failed to establish the essential elements of the offences charged. The court noted that there was no direct or circumstantial evidence linking the accused to the alleged theft, and that ownership of the recovered items was not proved.

The court further observed that prosecution witnesses gave contradictory and inconsistent accounts regarding the recovery of the items, the dates of the alleged raids and the nature of the materials recovered. The absence of an inventory, expert reports, photographs or CCTV evidence fatally weakened the prosecution’s case.

Citing the decision in Sawe v Republic (2003), the court emphasised that suspicion, however strong, cannot be the basis of a criminal conviction.

On the charge of handling vandalised energy equipment, the court found no evidence that the accused knew or had reason to believe that any materials in her possession were vandalised or stolen. The court noted that no complaint of vandalism had been lodged against her and that no witness testified that she was part of any cartel involved in vandalising power infrastructure.

The court concluded that the prosecution had failed to prove the case beyond a reasonable doubt and acquitted Luo Minghui on all counts. She was ordered to be released forthwith unless otherwise lawfully held, with a right of appeal within fourteen days.