[2023] KEHC 25062 (KLR)

Director of Public Prosecution v Mutune (Criminal Appeal E035 of 2021) [2023] KEHC 25062 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25062 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E035 of 2021

TM Matheka, J

November 10, 2023

Between

The Director of Public Prosecution

Appellant

and

Daniel Mbolonzi Mutune

Respondent

(Appeal from the judgment /acquittal in Tawa MCCR 47 /2019 of M.K Mutegi (PM)

Judgment

1. Daniel Mbolonzi Mutune was charged with malicious damage to property Contrary to Section 339 (1) of the Penal Code.It was alleged that on 20th July 2018 at around 1800 Hours at Uvuu Village Uvuu Sub location, Kithungo Location, Mbooni West Sub county, Makueni County he willfully and unlawfully damaged 8(eight) blue gum trees all valued at Kshs. 80,000/= (Kshs. Eighty thousand) the property of Priscilar Mbulwa Ndeto.

2. He denied the charge on 26th June 2019 before Hon. Mutegi (SRM) as he then was.

3. The matter went to full trial and the appellant was placed on his defence.

4. Having perused the record I find that the learned trial magistrate’s summary of the facts to have been comprehensive and it is largely reproduced herein below.

5. PW1 Priscilar Mbulwa Ndeto from Uvuu sub-location testified inter alia that in the month of July , 2018 she heard trees being cut down. She saw Mbolonzi (accused person) cutting down the blue gum trees using an axe. That he told her to get out of that place because she did not know the boundary. She went and reported to the village elder Daniel Vundi who told her to report to Kikima Police Station. She was then told to go to the surveyor who went and planted sisal plants to mark the boundaries but the accused person uprooted them twice. That she saw him uprooting them. That the trees and the shamba belong to her. That she does not know the value of the trees. She produced Title No. Mbooni/Uvuu/853 in the name of Ndeto Mwove as PMFI “1”, the registry sheet map of Uvuu registration section as PMFI “2” and a letter dated 13th August 2018 from Kenya Forestry Service, Kikima as PMFI “3”.On cross examination PW1 stated inter alia that the accused person used the trees to make kiln used to make bricks. That the trees were inside her shamba.

6. PW2 Daniel Makau Vundu from Uvuu testified that on 20th July 2018 he saw Priscillah Mbulwa Ndeto who came to his home at about 4. 30pm. She told him that Mbolonzi had cut her trees. He is the village elder. That he accompanied Priscillar to the scene and saw that the trees were mature gum blue. That he called Mbolonzi (accused person) and asked him why he had cut down the trees belonging to PW1 but he said that he had cut down his own trees. That he advised PW1 to go and make a report at the police station. That the surveyor came in September, 2018 and planted sisal plants but the accused person uprooted them.In cross examination PW2 stated inter alia that the accused person cut down the trees and later chopped them into small pieces and prepared them for charcoal burning. That as he did so he was exceeding his boundary.

7. PW3 Gabriel Mainge, surveyor with the County Government of Makueni visited the scene and observed that PW1’s land in Mbooni/Uvuu/853 and the accused person’s land is Mbooni/Uvuu/912. That on the ground there’s a path which is not in the map. That the cut blue gum tree was at the border of the t shamba. That an officer had previously planted sisal plants to mark the boundaries but they had been uprooted. That the cut trees were in parcel No. 853. That parcel No. 912 did not have any trees. He produced the report as P Exh. 4. The map as PExh2. The search for parcel No. 853 as P Exh 5. On cross examination PW3 testified inter alia that he did not indicate who was to blame. That the trees were cut in the parcel No. 853.

8. The prosecutor closed their case without calling the Forester and the Police Officer.

9. In his defence the accused person called 2 witnesses.

10. DW1 Simon Kyamba Mwove testified that he went and saw the cut trees. On the day of arrest the accused had not done anything that is he was suffering for nothing, that no tree had been cut down.

11. DW2 the accused person Mutune testified that the case is full of lies because the person who reported to the surveyor was not the complainant. That during the scene visit by the court, the surveyor stated that he did not see any tree stumps. That in court he contradicted himself when he stated that there were stumps on the ground. That there was a boundary dispute. That PW4 and PW5 never attended court. That there is a lot of interference from outside in this case.

12. At the close of both the defence and prosecution case the learned trial magistrate found that the prosecution’s case lacked corroboration as they had failed to call both the Forester and the Investigating Officer. On that basis the learned trial magistrate was of the view that the case had not been proved and acquitted the respondent on that ground.

13. The state filed on appeal on the grounds inter alia that the learned trial magistrate erred in failing to find that the prosecution had discharged its burden of proof in accordance with the law; erred by holding that the failure by the prosecution to call the Forester and the Investigating Officer brought down the case for the prosecution; erred because the evidence rendered by the complainant and her witnesses was sufficient.

14. Parties argued the appeal through written submission.

15. For the appellant - the DPP reliance was placed on Simon Kiama Ndiagui V R [2017] eKLR on the elements of the charge of malicious damage to property contrary Section 339(1) of the Penal Code - and the Court of Appeal in David Njuguna Wairimu V R [2010] eKLR on the duty of the first appellate court to only see and re-evaluate the evidence on record from the trial court and draw its own independent conclusion without overlooking the conclusion of the trial court, bearing in mind that it never heard/ saw the witnesses.

16. It is also submitted that it is not necessary to prove the ownership of the property that there was no contradiction/inconsistency in the case from the prosecution, and that it was established that the trees were cut from the complainant’s side of the shamba as testified by the surveyor.The appellant relied on S.C V R [2018] eKLR to the effect that failure to call the Investigating Officer was not fatal to the case from prosecution.

17. For the Respondent - submitting on the role of the first appellate court relied on Charles Kyalo Katiku V R [2014] eKLR where the court cited the Court of Appeal in Odhiambo V R [2005] eKLR. The Respondent also cited cases where the Court of Appeal has cautioned towards upsetting the findings of facts an appeal - Joram Mungai Kiberenge & 5 others V Peter Gikonyo Chiuga (legal representative of Jenniffer Njoki (deceased) & another [2020] eKLR; Samuel Gichina Muiruri V Evanson Kimemia (2002) eKLR.

18. With respect to the grounds of appeal, it was argued that the learned trial magistrate did not make any errors.

19. Upon considering the rival submissions the issues for determination appear to be the following;a.Whether the prosecution proved the ingredient of the offence of malicious damage as established under s. 339(1) of the Penal Code.b.Whether the prosecution’s failure to call the Investigation Officer and the Forester was fatal to the case from the prosecution.

20. Section 339 (1) of the Penal Code provides;Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which unless otherwise stated, is a misdemeanor, and is liable if no other punishment is provided, to imprisoned for 5 years.

21. Was any property destroyed? The charge states that 8 blue gum trees were destroyed on 20/8/2018 at 1800hrs. The complainant told the court she heard trees being cut. She went and found the accused cutting them with an axe - she reported to the village elder, who came.His testimony was that it was at 4. 30pm (1630 HRS). He said he went there and saw that some mature blue gum trees had been cut. He did not see accused cut the trees. He said when he went with the police the following day they did not find any trees.

22. The court visited the scene on 27th August 2019. There is no record of the visit as to what the court observed at the scene - and the photos alleged to have been taken were not produced as evidence. The government surveyor testified that one big blue gum tree at the borderline of two parcels of land one of which was occupied by the complainant had been cut. He also said that there were cut trees on the complainant’s side of the shamba. He produced a report - P Exh. 4.

23. I read the report - Ref TEC/18/MKN/Vol. Vi/45 dated 1st December 2018 - it simply speaks of a boundary dispute - a blue gum tree is mentioned as having been found “along the line of the boundary and hence it was used to align the other points along the line of the boundary”.

24. There is no mention of any cut trees.

25. Hence from the three witness it is evident that there is nothing to show that 8 (eight) blue gum trees were cut. The complainant does not mention 8 blue gum trees in her evidence – the village elder simply says he came and saw mature blue gum trees but did not say how many or whether they belonged to complainant or accused person.

26. The independent witness - the surveyor in his report did not mention any cut trees or any sign of cut trees at the site - neither was there any evidence from the site visit that any trees had been cut - The photos were not produced.

27. It is upon cross-examination that the surveyor stated that there were trees cut on the side of the complainant’s parcel of land - but if that was so - why was that information not in his written report?What should be believable - what he said in court /or what he wrote down while at the scene? At the scene eight tree trunks of mature blue gum trees would be visible and notable. What was notable as far as his report goes was the tree that was standing on the borderline of the two neighbouring parcels of land.

28. There was the issue of the boundaries - the complainant told the court she heard trees being cut, went there and found the accused who ordered her to leave . She states that she did not know the boundary between her parcel of land and the parcel of land neighbouring hers.In my view that explains why the surveyor only spoke about determining the boundary between the two parcels of land. If she did not know the boundary - between the two parcels - how else would she tell that any trees had been cut on her side – if at all? She testified that the boundary had been fixed twice before but the respondent had uprooted it. No such evidence was placed before the court that the boundary had been fixed earlier, twice , and destroyed by the respondent - if that was the case, he was liable to prosecution, which the state did not raise against him- That would have demonstrated that there had been in existence a known boundary between the two neighbouring parcels of land.

29. Was it established that there were trees belonging to the complainant?The ODPP produced evidence that the complainant was the widow of the owner of the land, and she occupied the land - however, there was no proof that the complainant was the owner of the trees with the unknown boundary or boundary dispute - and with the surveyors’ report – of no evidence of cut trees - it would not be possible to determine the ownership of the alleged trees.

30. The Forest Officer did not testify - his evidence would have confirmed whether 8 blue gum trees valued at Kshs. 80,000 were cut without his evidence - the court was left without evidence as to whether 8 blue gum trees were cut down of the alleged value.

31. It was testified that by the following day not a single cut trees was visible at the scene - One witness said the trees were turned into charcoal , another that they were used in a kiln to burn bricks - but no evidence of this was brought to court.

32. The Investigating Officer’s evidence was crucial as his investigation would have established some of these facts.

33. That stated, my analysis of the evidence, in view of the authorities cited, I arrive at the conclusion that there was a boundary dispute - the prosecution did not establish beyond a reasonable doubt that 8 blue gum trees valued at Ksh 8000 belonging to the complainant were cut down by the respondent-

34. In that event, the appeal is not merited and is dismissed.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER, 2023……………………………MUMBUA T. MATHEKAJUDGEAppellant (ODPP) - KazunguRespondent - No appearance