[2019] KEHC 4612 (KLR)
The appeal was dismissed because the prosecution failed to prove ownership of the property allegedly destroyed and stolen. The court found that the property belonged to deceased persons, and no letters of administration or direct proof of ownership were provided. Without such proof, the charges of malicious damage...
Source-derived case information.
- Citation
- [2019] KEHC 4612 (KLR)
- Parties
- Appellant: Director of Public Prosecutions (DPP); Respondent: Jacob Munialo; Respondent: Saul Mumasi; Respondent: David Injendi; Respondent: Silvanus Luvonga; Respondent: Kennedy Walwanda
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 75 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DAS Majanja
- Legal Topics
- Malicious Damage to Property, Stealing, Proof of Ownership, Succession and Intermeddling
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions (DPP)
Appellant
Jacob Munialo
Respondent
Saul Mumasi
Respondent
David Injendi
Respondent
Silvanus Luvonga
Respondent
Kennedy Walwanda
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in acquitting the respondents of malicious damage to property and stealing.
- 2 Whether the prosecution proved ownership of the property as required by law.
- 3 Whether the respondents should have been charged with intermeddling under the Law of Succession Act.
Ratio Decidendi
The appeal was dismissed because the prosecution failed to prove ownership of the property allegedly destroyed and stolen. The court found that the property belonged to deceased persons, and no letters of administration or direct proof of ownership were provided. Without such proof, the charges of malicious damage to property and stealing could not be sustained. The court further observed that the respondents' actions, if any, would have constituted intermeddling with the estate of the deceased, an offence under the Law of Succession Act, but they were not charged as such. Consequently, the acquittal by the trial court was upheld, and the respondents and their sureties were discharged.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The respondents and sureties are discharged from the proceedings.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CORAM: D. S. MAJANJA J.
CRIMINAL APPEAL NO. 75 OF 2018
BETWEEM
DIRECTOR OF PUBLIC PROSECUTION (DPP)....APPELLANT
AND
JACOB MUNIALO.............................................1ST RESPONDENT
SAUL MUMASI..................................................2ND RESPONDENT
DAVID INJENDI............................................... 3RD RESPONDENT
SILVANUS LUVONGA.....................................4TH RESPONDENT
KENNEDY WALWANDA.................................5TH RESPONDENT
(Being an appeal from the original conviction and sentence by Hon. M. L. Nabibia, RM, dated 1st April 2017 in Butali Magistates Court Criminal Case No. 472 of 2014)
JUDGMENT
1. This is an appeal by the Director of Public Prosecutions against a judgment of the trial court acquitting the respondents of the offence of malicious damage to property contrary to section 339 (1) of the Penal Code (Chapter 63 of the Laws of Kenya) and stealing contrary to section 275 of the Penal Code.
2. From the charge, the property that was destroyed was said to belong to one Nelly Walwanda and Solomon Masitsa but in the evidence, the house belonged to Nelly’s parents who were since deceased. When I asked for proof of ownership either directly or by way letters of administration since the property belonged to the deceased, it was not forthcoming. In the circumstances, the charges could not stand on that basis.
3. The respondents ought to have been charged with the offence of intermeddling contrary to section 45(1) of the Law of Succession Act (Chapter 120 of the Laws of Kenya) and I would venture to say that had this been done, they would have met the full force of the law. I will say no more.
4. The appeal is dismissed. The respondents and sureties are discharged from the proceedings.
DATED and DELIVERED at KAKAMEGA this 2nd day of September 2019.
D. S. MAJANJA
JUDGE
Ms Ombega, Prosecution Counsel, instructed by the Director of Public Prosecutions for the appellant.
Mr Indimuli, Advocate for the respondents