https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10389

Sioka v Republic (Criminal Appeal E070 of 2025) [2026] KEHC 10389 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEHC 10389 (KLR) Republic of Kenya In the High Court at Busia Criminal Appeal E070 of 2025 SM Mohochi, J July 13, 2026 Between Julius Bwire Sioka Appellant and Republic Respondent (Being an Appeal against the against the Judgment dated and delivered on the 29{{^th}} Day of October, 2025, Conviction and Sentence passed on the 12{{^th}} Day of November, 2025 by the Senior Resident Magistrate's Court Hon. Anne Njeru (S.R.M) Judgment 1.The Appellant was jointly charged with another not before court of the following counts;Count I: the offence of Assault causing actual bodily harm contrary to section 251 of the Penal Code.That on the 24th day of April 2024, at about 1530 hours, at Magoe area in Bunyala Sub-County within Busia County, jointly and unlawfully assaulted Cornel Bwire, thereby occasioning him actual bodily harm.Count II: the offence of Assault causing actual bodily harm contrary to section 251 of the Penal Code. That on the 24th day of April 2024, at about 1530 hours, at Magoe area in Bunyala Sub-County within Busia County, jointly and unlawfully assaulted Michael Wangira, thereby occasioning him actual bodily harmCount III: the offence of Malicious Damage to property contrary to section 339(1) of the Penal Code.That on the 24th day of April 2024, at about 1530 hours, at Magoe area in Bunyala Sub-County within Busia County, jointly with others not before court, unlawfully damaged 200 concrete poles and two metallic gates all valued at Kshs. 410,000/=, the property of Cornel Bwire.;Count IV: the offence of Stealing contrary to section 268 of the Penal Code.That on the 24th day of April 2024, at about 1530 hours, at Magoe area in Bunyala Sub-County within Busia County, Benson Afula, the 2nd accused herein, stole one mobile phone make Samsung Galaxy S21 FE 5G IMEI No. 358864121399331 valued at Kshs. 100,000/-, the property of Cornel Bwire. 2.He denied the charges and a plea of not guilty was entered. Summary of Evidence 3.The prosecution called six witnesses in support of its case. 4.PW1: Cornel Bwire Ongenga testified that on the material day, he attended a meeting convened to deliberate over a boundary dispute concerning land parcel BUNYALA/BULEMIA/1435, which borders land owned by the accused and the area Member of Parliament, Hon. Raphael Wanjala. 5.Present at the meeting were the Land Registrar, the Land Surveyor, the Member of Parliament, the accused persons, PW1, his brothers, the area elder who sold him the land, and other members of the public. 6.Interviews were conducted, and the Land Registrar pronounced that PW1 had no land there and that the fencing was illegal. Immediately thereafter, the accused persons began demolishing the concrete poles and barbed wire fence surrounding the land. Members of the public joined in the destruction. 7.PWI began recording the incident on video. The 2nd accused approached him, hit him with his fist, and the appellant joined in by kicking him on his back and taking away his phone. His brother Michael Wangira came to his rescue but was also kicked to the ground by the Appellant. PWI's phone got lost in the process. Both sustained injuries from the assault. 8.They sought treatment at Port Victoria Hospital, where treatment notes were filled. PW1 later reported the matter at the police station and was issued with a P3 Form which was completed on 29th April 2024. 9.PW1 further testified that the appellant had previously been convicted in Criminal Case No. E023 of 2023 before Port Victoria Law Court No. 2 for malicious damage to his property and sentenced to six months imprisonment or a fine of Kshs. 40,000/-. 10.He produced a copy of his title deed as Pexh 4 and identified photographs of the destroyed fence as those of his property. He stated that no court had authorized the destruction of his fence. 11.PW2: Michael Wangira Ongenga, a brother to PW1, corroborated PW1's testimony. He confirmed attending the meeting and witnessing both accused persons, alongside members of the public, begin demolishing PW1's fence. 12.When PWI started recording a video, the 2nd accused kicked and punched him severally, causing him to fall. When PW2 attempted to rescue his brother, the appellant descended upon him with kicks and blows. He managed to flee, leaving the accused persons assaulting PW1. 13.They later sought treatment at Port Victoria Hospital, where treatment notes and P3 Forms were issued. He confirmed that the accused and complainants had been in a longstanding boundary dispute and that the accused initiated the demolition. 14.PW3: Francis Tom Masiga testified that he attended the meeting and witnessed the accused persons begin demolishing PW1's fence after deliberations ended. 15.When PWI attempted to record the incident on his phone, the 2nd accused punched him and took away the phone as the Appellant joined in kicking PW1. PW2 attempted to intervene but was also assaulted. The accused then resumed demolishing the fence. 16.He confirmed that the accused persons were supporters of the area MP and that they, together with others, demolished PW1's fence. 17.PW4: Paschal Juma Siotero corroborated the testimony of previous witnesses. He stated that as the meeting proceeded, the accused persons began demolishing PW1's fence. 18.When PWI tried to record the incident, the 2nd accused punched him on the eye and took his phone. The Appellant joined in assaulting PW1 by kicking him severally as he lay on the ground. The matter was later reported to the police. 19.PW5: Jackson Oduor, a Clinical Officer, testified that he examined Michael Ongenga (PW2) on 29th April 2024, who reported being assaulted on 24th April 2024. He complained of pain on the back and chest. Examination revealed tenderness on the affected parts and a swollen right eye. He classified soft tissue injuries as “harm” and produced the P3 Form as Pexh 6 and treatment notes as Pexh 5. 20.He also examined Cornel Bwire (PW1), who had redness and bruising around the right eye, tenderness on the chest and upper back, and internal bleeding in the eye. He similarly classified the soft tissue injuries as harm caused by a blunt object. He produced PWI's treatment notes as Pexh 2 and the P3 Form as Pexh 3. 21.PW6: PC Imani Munga - Investigating Officer, testified that he took over investigations on 30th April 2024. He recorded statements from PW1, PW2, and witnesses. He produced PW1's phone purchase receipt as Pexh 7, showing the phone was valued at Kshs. 105,000/-. 22.On 31st April 2024, he visited the scene and took photographs of the damaged fence, producing them as Pexh 1 (i-v) and a Certificate of Photographs as Pexh 8. He noted that the 2nd accused fled and remains at large. Defence case 23.The Appellant and his Co-acused were found with a case to answer and placed to their defence with the Appellant electing to give sworn testimony and calling one witness. 24.DW1, the Appellant admitted knowing PWI as a neighbour. He confirmed attending the meeting on the material day, where the Land Registrar allegedly found that PW1 had fenced the wrong property belonging to the late Philip Were and the area MP. He claimed to have left the meeting to go to Mulukoba Beach and only returned to find the fence already damaged. He denied participating in the demolition or assault. 25.He did not produce any proof that the Land Registrar made such findings or that he went to Mulukoba Beach. He admitted having been previously convicted in Criminal Case No. E023 of 2023 for malicious damage to PW1's property. 26.DW2: Leonida Akuku Okumu, the Appellant's sister, confirmed attending the meeting and stated that she accompanied the accused to Mulukoba Beach to collect flour. Upon their return, they found the fence demolished. She did not witness who demolished it and denied seeing the appellant assault or steal from PW1. She also admitted being a defence witness in the previous case where the appellant was convicted. 27.The Trial Court having considered the evidence presented, rendered its judgement, found the Appellant and his co-accused guilty of the offences and imposed the following sentence;a.Count I to pay a fine of Ksh. 20,000/= In Default 6 months imprisonment.b.Count II to each pay a fine of Ksh. 20,000/- In Default 6 months imprisonment.c.Count III to each serve 5 (five) years imprisonment.d.Count IV 2nd Accused to serve 2 years imprisonment sentence. The Appeal 28.Dissatisfied with both the sentence and conviction, the Appellant has now lodged this Appeal challenging the findings of the trial Court. The Appeal is predicated on ten (10) grounds of appeal as articulated in the Petition of Appeal summarized as follows: -i.That, the Learned Trial Magistrate erred in law and fact in convicting the Appellant basing her judgement on assumptions and attaching undue weight to the uncorroborated testimony of the Prosecution's Witnesses.ii.That, the Learned Trial Magistrate erred in law and fact in convicting and sentencing the Appellant despite the inconsistencies in the evidence tendered by the Prosecution.iii.That, the Learned Trial Magistrate erred in law and fact by failing to consider the Appellant's evidence.iv.That, the Learned Trial Magistrate erred in law by shifting the burden of proof to the Appellant.v.That, the Learned Trial Magistrate erred in law and fact by placing reliance on a previous conviction of the Appellant to infer guilt in the matter.vi.That the Learned Trial Magistrate erred in law and fact by convicting the Appellant without properly considering the evidence adduced, thereby arriving at a verdict that was unsupported by the weight of evidence.vii.That the Learned Trial Magistrate wrongly relied on uncorroborated or inadmissible evidence tendered by the Prosecution in convicting the Appellant.viii.That the Learned Trial Magistrate ignored the Pre-Sentencing Report and all mitigation placed before her and proceeded to pass an unreasonable sentence.ix.That the Charges against the Appellant were not proved beyond the threshold of reasonable doubt as the evidence by the Prosecution did not support/warrant a Conviction.x.That the Conviction and the subsequent sentence amount to a miscarriage of justice hence the same should be quashed and set aside. 29.The Appeal was heard by way of written submissions. Appellant’s Submissions 30.The Appellant has collapsed the ten grounds into three issues for the consideration by the court;a.Whether the Prosecution proved its case beyond reasonable doubt to justify the conviction and sentence by the Trial Court.b.Whether the Learned Trial Magistrate properly evaluated the Evidence on record and the Appellant's Defence; andc.Whether the Trial Court inferred guilt from the Appellant's previous conviction. 31.On the 1st issue as to whether the Prosecution proved its case beyond reasonable doubt to justify the conviction and sentence by the Trial Court, the legal burden of proof in criminal cases rests wholly upon the Prosecution and remains constant throughout the trial. It is the duty of the Prosecution to establish the guilt of the accused person beyond a reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. 32.That this position is well captured in Halsbury's Laws of England, 4ª Edition, Volume 17, paras 13 and 14, which states that:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. 33.This legal burden needs to carry a very high degree of probability of guilt as observed in Samoci v Republic (Criminal Appeal E033 of 2024) [2025] KEHC 11593 (KLR) with guidance by Lord Denning in Miller-vs-Ministry of Pensions, [1947] 2 ALL ER 372 who held:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The late would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 34.That the evidence required for conviction must be compelling and robust, however, in this case, this standard was not met, as demonstrated in the following instances:a)The Trial Court erroneously relied on the uncorroborated evidence presented by the Prosecution; andb)The Court disregarded the Appellant's evidence, which if considered would have been to the advantage of the Appellant and would have had the potential of throwing out in entirety the charges levelled against him and ultimately acquitting him. 35.Reference is made to the case of Pius Arap Maina -vs- Republic (2013) KEHC 1762 (KLR), where the Court emphasized that where material doubť's arise in a Prosecution's case, such doubt must be interpreted in favour of the Accused as the Prosecution will not have proved its case beyond reasonable doubt. The Court held that:It is gainsaid that the Prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the Prosecution's case raising material doubts must be interpreted in favour of the accused. 36.The Appellant submits that the Prosecution's case was undermined by significant evidential gaps. In particular, the Prosecution's evidence lacked corroboration as demonstrated the first Paragraph on Page 54 of the Appellant's Record of Appeal where the Complainant (PW1) alleged that the Appellant and the 2nd Accused person began demolishing the concrete poles holding his perimeter wall on the directions of the Land Registrar. He also claimed that he took a video of the destruction with his phone that was later stolen by PW2. However, neither the video evidence of the destruction or assault was produced by the Prosecution nor an OB Report of the stolen phone, if any. 37.In the case of Owili -vs- Republic [2022] KEHC 11587 (KLR) the Court held that;“In this case, there is no explanation as to why crucial exhibits and crucial evidence that would have linked the appellant to the offence was not called or produced. This court can only be left to infer that the said evidence may have tended to be adverse to the Prosecution case.The evidence was not watertight. It was scanty and left gaps. It is obvious that the evidence was interfered with and the Prosecution did not seem to be keen on calling the relevant witnesses. For the above reasons, I find that the evidence on record was in sufficient to found a conviction. The conviction was made in error”. 38.That the phone purportedly containing the most crucial evidence to identify the Appellant was conveniently alleged to have been "stolen," yet the Prosecution failed to tender any concrete proof such as an Occurrence Book (OB) report or recovery efforts to substantiate this claim before the Trial Court. This glaring omission raises serious questions about what the Prosecution may be concealing, as the absence of such foundational evidence erodes the reliability of PWI's narrative. 39.The fact that the alleged video footage which could have been the only evidence linking the Appellant to the alleged offence constitute a material lacuna, suggesting the evidence, if it existed, would have been unfavorable to the Prosecution's case. It was simply convenient for the Prosecution to claim the existence of such video evidence and allege that the phone that recorded the video in question was stolen by the Appellant without producing any evidence to that effect. Therefore, this evidential void critically weakens the Prosecution's case, falling far short of the proof beyond reasonable doubt required for conviction. Absent independent corroboration of the Appellant's involvement in the alleged demolition, the conviction cannot stand and must be quashed. 40.Secondly, all Prosecution witnesses confirmed the presence of other numerous individuals (approximately 50 people) whom they could not possibly identify due to the scuffle at the crime scene. Notably, PW3 and PW4, who identified the Appellant, were well-known to the Complainant, who had personally invited them to the meeting with the Land Registrar. Additionally, the Medical Examination Report at Page 15 of the Record of Appeal, reveals that PWI (the Complainant) had a medical history of short-sightedness, requiring glasses for near vision. This compromised the eyewitness evidence which could not be reliably acted upon, particularly as it lacked corroboration from PW2, who is PW1's brother. 41.Moreover, the Medical Examination Report does not disclose the number of assailants who attacked the Complainant. Likewise, the Witness Statements merely note the presence of approximately Fifty (50) people at the scene of the crime, without further specificity. Given this vagueness, it is implausible that PWI could have particularly singled out the Appellant as his assailant. 42.Thirdly, PW1 and PW2 alleged in their testimony that the Appellant struck both of them and forcibly threw PWI to the ground. However, the Medical Examination Report tendered by the Complainant at Page 15 of the Record of Appeal starkly contradicts this account, noting that his clothing was clean and entirely intact, neither torn, tattered, nor soiled. This is an inexplicable condition of the Complainant's attire that defies logic, particularly when contrasted with the Prosecution's own photographs depicting a dusty ground at the scene, where any such violent throwing would inevitably have resulted in visible dirt, rips, or disarray on the Complainant's garments. This material inconsistency undermines the credibility of PW1 and PW2's narrative and highlights a critical evidential gap in the Prosecution's case. 43.Fourthly, the Prosecution did not establish the elements of the offence of malicious damage to property in Count III as were stated in the case of Wilson Gathungu Chuchu-vs-Republic [2018] eKLR as follows:I.proof of ownership of the property,II.proof that the property was destroyed or damaged;III.proof that the destruction or damage was occasioned by the accused, and proof that the destruction was willful and unlawful. 44.That, the third element was not established as the Prosecution failed to tender concrete proof establishing that the Appellant damaged the Complainant's wall and gate. In the absence of such direct or cogent evidence linking the Appellant to the alleged destruction, the charge of malicious damage to property cannot sustainably stand. 45.On the first element, it is submitted that the Prosecution utterly failed to establish proof of ownership of the disputed property or purportedly damaged property, and particularly that that the same was owned by the Complainant, a fatal flaw undermining the entire charge of malicious damage to property under Section 339 of the Penal Code. PW1's bare claims of proprietorship ring hollow absent any boundary demarcation by the Land Registrar or County Surveyor without such official verification, PWI could not possibly know with certainty that the allegedly damaged wall and gate encroached upon his titled parcel, BUNYALA/BULEMIA/1435, as reflected in the Title Deed he produced in Court. 46.That in the case of Wachira -vs- Republic (2025) KEHC 1342 (KLR) where the Court held that;“It is preposterous for the original complainant to trespass into disputed property and erect a tent and expect that it cannot be removed.It was the common position of the parties that there was a land dispute emanating on two adjacent properties described as parcel No. 366 and 367 and that the site where the subject funeral was staged was parcel 367 also a disputed spot, In the circumstances. I find that the Prosecution ought to have clearly identified the Appellant as perpetrator of the crime out of the group of people that was said to have invaded the burial proceedings. It was not enough for the witnesses to mention the Appellant as one of the perpetrators without direct correlation of his individual contribution in the wrong doing. In failing to do so, the Prosecution also failed in discharging its duty-bound requirement to prove that the act of the Appellant was willful and unlawful”. 47.There was no evidence tendered on the ownership of the property. In particular, the amendment changed the owners without the said owners being complainant. There was no basis for the original complainant making the complaint. He was not even the special owner for purpose of the offence. Further, there was no proof that property was damaged and by the accused. It is surprising no-one heard what kind of instructions the Appellant was giving the people destroying. Who were they? The court should have taken cue from the allegation of the pangas being hidden in the property. (Emphasis Ours) 48.On the fourth element of willful and unlawful destruction it is submitted that, the Prosecution also failed to establish willful damage in a malicious manner or otherwise by the Appellant. There was no evidence that the tear was willful and unlawful. reliance being placed on the case of Wachira-vs-Republic [2025] KEHC 1342 (KLR) where the Court held thatThirdly, there was no evidence that the tear was wilful and unlawful. Further, the one remarkable thing that the Prosecution left out of its case is the manner in which the tent was allegedly damaged and who in fact carried out the destruction as to infer malice in the acts of the Appellant and his co-accused. The witnesses testified that the Appellant and Daniel Ndungu were among the group of about 10 people that destroyed the tent. PW5 moved closer by testifying that the tent was torn. The manner in which the tent was torn ought to have been clearly laid in evidence. Whether this twas by use of sharp or blunt objects or fists, fingers and kicks, would have been crucial to establish willful damage in a malicious manner or otherwise, the motive. 49.That the Prosecution failed to establish these elements. Both Actus reus and mens rea are crucial parameters in criminal law that must both be established to sustain a conviction and the Prosecution ought to have established that the Appellant not only acted but acted with malice. There was no evidence provided demonstrating that the Appellant acted with malice or intention to destroy the property. 50.The principle that the burden of proof rests entirely on the Prosecution, was firmly stated in Melvin Muendo Muema v Republic [2019] KEHC 5458 (KLR) relying on H.L(E) Woolmington us. DPP [1935] A.C 462 pp. 481, where Viscount Sankey L..C held that -If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the Prosecution or the prisoner, as to whether the offence was committed by him), the Prosecution has not made out the case and the prisoner is entitled to an acquittal, (Emphasis Ours) No matter what the charge or where the trial, the principle that the Prosecution must prove 51.That, at the close of Prosecution, what is required in law at stage is for the trial court to satisfy itself that a prima facie has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code. A prima facie case is established where the evidence tendered by the Prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebutted is offered by an accused person. This is well illustrated in the cited Court of Appeal case of Ramanlal Bhat-Vs-Republic (1957) Ea 332. At that stage of the proceedings the trial court does not concerned itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence however must be such that it is sufficient for the trial court to place the accused to his defence. 52.In relation to Count I and Count II, Section 251 of the Penal Code clearly sets out the essential elements of the offence of assault causing actual bodily harm. In Ndaa -vs- Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR), the Court held that the Prosecution must prove two essential elements of Assaulting the Complainant or Victim; and Occasioning actual bodily harm. 53.The Appellant submits that, the Complainant (PW1) alleged he was assaulted from behind by the Appellant who allegedly kicked him on the back. This account, however, stands contradicted by the Investigating Officer (PW7), who testified that the Appellant, alongside others not before the Court, first assaulted PW1 before turning to PW2. We submit that the Complainant, (PW-1) could not possibly identify the Appellant as having assaulted him since he says he was hit from behind in a crowd of over fifty (50) people and none of those people was called to confirm having witnessed the Appellant kicking the Complainant as he claimed. These irreconcilable inconsistencies remain uncorroborated, engendering reasonable doubt as to the true sequence of events. In a chaotic scene involving over fifty (50) individuals, reliable identification of the Appellant amidst such a crowd becomes untenable and creates a real possibility of mistaken identification. 54.Reliance is placed on the Court of Appeal case of Wamunga -vs- Republic (1989) where the Court stated that:“Evidence of visual identification in criminal cases can bring about miscarriages of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant depends wholly or to a great extent on the correctness of one or more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification. The way to approach evidence of visual identification was succinctly stated by Lord Widgery C.), in the well-known case of R v Turnbull [1976] 3 All E.R. 549 at page 552 where he said:'Recognition may be more reliable than identification of a stranger, but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. (Emphasis Ours) 55.Secondly, the Appellant submit that these inconsistencies and the evidence of the Appellant, which ought to have been taken into consideration and not the Trial Court selectively placing reliance on the evidence of PW1 and other Prosecution witnesses while disregarding the Appellant's Defence. 56.That the Appellant maintains that he departed the crime scene immediately after handing over the relevant land documents to the Land Registrar, a fact corroborated by the testimony of DW-1, Leonida Akuku Obura. In his Defence Statement at Page 36 of the Record of Appeal, he avers that he proceeded directly to Mulukoba Beach to collect cassava flour from Uganda and returned at around 6:00 p.m., at which time he observed that a fence had been demolished, an event that occurred in his absence. The Trial Court did not give any reason for dismissing the Appellant's defence, which was cogent and unshaken and the Trial Court finding that the elements of the two offences had been proved beyond reasonable doubt. 57.The Appellant further submits that, the Prosecution, bearing the burden to prove the Appellant's presence and involvement beyond reasonable doubt, adduced no cogent evidence to rebut this alibi, rendering their allegations unsubstantiated. 58.On the 3rd issue as to whether the Court inferred guilt from previous convictions? It is submitted that it is a foundational principle of criminal jurisprudence that guilt must never be inferred from an accused's prior convictions or unrelated previous cases; rather, each case falls to be determined strictly on its own unique merits and the evidence adduced therein. 59.That permitting inferences from past records would erode the presumption of innocence of an accused person enshrined in Article 50(2)(a) of the Constitution of Kenya, 2010, transforming suspicion into proof and undermining fair trial rights. 60.That Kenyan Courts have consistently emphasized that the Prosecution bears the unyielding burden to prove the elements of the offence beyond reasonable doubt in the instant matter, irrespective of the accused's history. 61.Reference is made to the case of Asili v Republic (Criminal Appeal 225 of 2020) KECA 2010 (KLR), where the Court held that each case turns on its own facts. 62.That the Trial Court in its Judgment (reference to Page 80 of the Appellant's Record of Appeal) placed reliance on the Appellant's previous conviction in Port Victoria Criminal Case E123 of 2023 where he was fined Kenya Shillings Forty Thousand (KShs.40,000/-) to infer guilt in the present case before the Trial Court on grounds of the Appellant was a repeat offender thereby undermining the credibility of his evidence. 63.The Appellant further submit that these matters, even if proven, serve no probative value toward establishing guilt in the current case, as they neither corroborate the alleged acts nor negate the Appellant's alibi or the evidential gaps identified in the case. 64.Reliance is placed upon the case of Joan Chebichii Sawe v Republic [2003] eKLR where the Court held that:We have evaluated the evidence as we are entitled to at great length and there is really nothing left to connect the appellant with the death of the deceased except mere suspicion. The suspicion may be strong but this is a game with clear and settled rules of engagement. The Prosecution must prove the case against the accused beyond any reasonable doubt. As this Court made clear in the case of Mary Wanjiku Gichira v Republic (Criminal Appeal No 17 of 1998) (unreported), suspicion however strong, cannot provide a basis for inferring guilt which must be proved by evidence. We disagree with the learned judge's view that the Prosecution had proved its case against the appellant beyond any reasonable doubt. (Emphasis Ours) 65.Similarly, under Section 277 of the Criminal Procedure Code (Cap 75), prior convictions may inform sentencing post-conviction but cannot prejudice the determination of guilt ab initio. It provides thatProvided that, if upon the trial of a person for a subsequent offence that person gives evidence of his own good character, the advocate for the Prosecution, in ansteer thereto, may give evidence of the conviction of that person for the previous offence or offences before a verdict of guilty is returned, and the court and assessors shall inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence. 66.Appellant submits that his status as a non-first-time offender, far from aggravating the instant case, underscores the Prosecution's failure to marshal independent, cogent evidence in the present case therefore disentitling him to acquittal. 67.In conclusion the Appellant submits that the Prosecution did not meet the evidentiary burden of proof beyond reasonable doubt in this case that ought to have led to his conviction. 68.Firstly, we have extensively demonstrated that the evidence tendered by the Prosecution was inconsistent, filled with evidentiary gaps, uncorroborated and did not clearly identify the Appellant as the person who committed the alleged offences. Further, we have also outlined that the Prosecution failed to prove the essential ingredients for the charge of malicious damage to property in light of the large crowd of approximately fifty people (50) at the scene of the crime making it reasonably impossible for the Appellant to be identified. Thirdly, we have shown, in these Written Submissions that the ingredients of Assault were also not proved as Prosecution's evidence contained irreconcilable inconsistencies that remained uncorroborated thereby engendering reasonable doubt as to the true sequence of events, if any. 69.Accordingly, the Appellant urges this Court, as a first Appellate Court, to re-evaluate the entire evidence and find that the Prosecution case fell short of the required legal standard of proof. The doubts and inconsistencies on record render the conviction unsafe, and the Appellant is, therefore, entitled to the benefit of doubt. 70.That that it is paramount, in the interest of justice that this Court allows the Appeal as prayed so as to prevent the ends of Justice from being defeated. 71.The Appellant thus prays that the conviction of the Trial Court and subsequent sentence be quashed. Respondent’s submission 72.The Prosecution on behalf of the Respondent in the submissions filed on 6th may, 20267, opposed the appeal and maintained that the prosecution’s case was proved beyond reasonable doubt. 73.The Respondent submits that, on evaluation of the evidence the trial court properly did evaluate the evidence on record and considered the defence and the exhibits produced by the prosecution and reached a well-informed decision, the incidence happened at 1530 hours and the complainants knew the appellant swell together with BENSON WAFULA as they attacked, assaulted the complainants and maliciously damaged the phone of CORNEL BWIRE. The evidence was properly evaluated. 74.Of the ground of the trial court considering the appellant's previous records in sentencing the Appellant, the court was justified as such there is no need to interfere with the sentence. 75.The principles guiding interference with sentencing by the appellate Court were properly.as, set out in S vs. Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court..." 76.Similarly, in Mokela vs. The State (135/11) [2011] ZASCA 166. the Supreme Court of South Africa held that:“It is well-established that sentencing remains pre-eminently within the discretion of the sentencing court. This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this Includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served." 77.The predecessor of the Court of Appeal in the case of OGOLA S/O OWUOR VS REPUBLIC, [1954] EACA 270, pronounced itself on this issue as follows: -“The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors". 78.Reference is made to the case of Shadrack Kipkoech Kogo-vs-R., Eldoret Criminal Appeal No.253 of 2003 the Court Appeal stated thus: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered. 79.That, Section 231 of the Penal Code provides as hereunder:-Any person who, with intent to malm, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person -(a)unlawfully wounds or does any grievous harm to any person by any means whatever, or(b)unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife or other dangerous or offensive weapon: or(c)unlawfully causes any explosive substance to explode; or(d)sends or delivers any explosive substance or other dangerous or noxious thing to any person; or(e)causes any such substance or thing to be taken or received by any person; or(f)puts any corrosive fluid or any destructive or explosive substance In any place; or(g)unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person, is guilty of a felony and is liable to Imprisonment for life. 80.The court is urged to associate itself with views of J. Ngugi, J in Benson Ochieng & Another vs. Republic [2018] eKLR that:“Re-phrasing the Sentencing Guidelines, there are four sets of factors a Court looks at in determining the appropriate custodial sentence after determining the correct entry point (which, as stated above. I have determined to be fifteen years imprisonment). These are the following: a. Circumstances Surrounding the Commission of the Offence: The factors here include: i. Was the Offender armed? The more dangerous the weapon, the higher the culpability and hence the higher the sentence. II. Was the offender armed with a gun? iii. Was the gun an assault weapon such as AK47? iv. Did the offender use excessive, flagrant or gratuitous force? v. Was the offender part of an organized gang? vi. Were there multiple victims? vii. Did the offender repeatedly assault or attack the same victim? b. Circumstances Surrounding the Offender: The factors here Include the following: i. The criminal history of the offender: being a first offender is a mitigating factor: il. The remorse of the Applicant as expressed at the time of conviction: ill. The remorse of the Applicant presently; iv. Demonstrable evidence that the Applicant has reformed while in prison; v. Demonstrable capacity for rehabilitation; vi. Potential for re-integration with the community: vil. The personal situation of the Offender including the Applicant's family situation; health; disability: or mental illness or impaired function of the mind. c. Circumstances Surrounding the Victim: The factors to be considered here Include: 1. The impact of the offence on the victims (if known or knowable); II. Whether the victim gotInjured, and if so the extent of the injury; ill. Whether there were serious psychological effects on the victim: iv. The views of the victim(s) regarding the appropriate sentence; v. Whether the victim was a member of a vulnerable group such as children; women; Persons with disabilities; or the elderly; vi. Whether the victim was targeted because of the special public service they offer or their position in the public service; and vil. Whether there been commitment on the part of the offender (Applicant) to repair the harm as evidenced through reconciliation, restitution or genuine attempts to reach out to the victims of the crime." 20. According to Francis Karioko Muruatetu & Another vs. Republic, Petition No. 15 of 2015: "[71] To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge: (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty: (d) character and record of the offender; (e) commission of the offence In response to gender-based violence: (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender, (h) any other factor that the Court considers relevant. 81.That the appellant has previous records, is a man whose previous record speaks, as such the trial court was justified in being guided with such reasons while sentencing the appellant as such the trial court cannot be faulted for doing so. 82.As to whether the trial magistrate erred in law and fact in convicting the appellant basing her judgment on assumptions and attaching undue weight to the uncorroborated Testimony of the prosecution's witnesses 83.That the trial court in convicting the appellant he judgment was based on the law and facts as argued and presented by both the prosecution and the appellant there was absolutely no assumption by the trial court or attaching undue weight to uncorroborated testimony of the prosecution's witnesses. In fact the Prosecution witnesses demonstrated that indeed they were at the scene of crime and that the offence of assault was committed by the appellant in broad day and this was corroborated with the medical evidence by the clinical officer who saw the complainants as such these ground of appeal fall. 84.As to whether the trial court erred in law and fact in convicting and sentencing the Appellant despite the inconsistencies in the evidence tendered by the prosecution, that the trial court was never moved by the inconsistencies in the evidence tendered by the prosecution if any in fact the trial court properly considered evidence of the prosecution and the defence case and that the prosecution gave water tight evidence against the appellant and others at large which the court found to be believable. The clinical officer highlighted the injuries suffered by the complainants subject to assault and nothing more as such the trail court was justified in reaching that decision. 85.As to whether the trial court erred in law and fact by failing to consider the Appellant's evidence raising a defence of alibi. As for alibi defence, it was submitted that the alibi adduced by the appellant at the trial court, it was the appellant himself who told court during the defence case that he was in the meeting and that the meeting was in his home and that he welcomed visitors in his home until the meeting ended. he then stated that he left to the lake but on cross examination he admitted that he saw off the visitors and he is the one who had welcomed them at his home where the meeting was held. The learned trial magistrate after considering the evidence adduced by both parties found that the Appellant could not exonerate himself from the offence. Therefore, the trial magistrate went ahead and dismissed it and Convicted him as the prosecution had proved their case beyond reasonable doubt. 86.As to whether the trial court shifted the burden of proof to the appellant, the Respondent contends that throughout the trial at no single time did the trial court shift the burden of proof to the appellant in fact the prosecution throughout the record had the burden of proof the offences charged and the prosecution did that beyond reasonable doubt which is the required standard in such cases as such the trial court never shifted the Burden of proof to the appellant faulted by the appellant. 87.On whether the trial court place reliance on the previous conviction of the appellant infer guilt in the matter, it is submitted that, the trial court never placed reliance on the previous conviction of the appellant o infer guilt in the matter. In fact the trial court considered the prosecution evidence tabled and the defence evidence tabled and found the appellant guilty of the offences charged and during sentencing phase the prosecution then informed court of Port Victoria Criminal Case No. E123 OF 2023 where the appellant was charged with the offence of malicious damage to property and was convicted of the offence and Sentenced thereto. The sentencing guideline allows the trial court to look at the antecedent of the accused person in sentencing which the trial court was at liberty to look at as such previous records as presented by the prosecution. 88.The Respondent submits that, the trial court did not rely of the previous convictions of the appellant to Infer his guiltiness as such these ground of appeal must equally fail. 89.That the appellant has not demonstrated to this court with sufficient reasons enough to warrant turning around the trial magistrates' decision as the decision was given in clear adherence to the law. 90.Reference was made to George Opondo Olunga vs Republic [2016] eKLR to submit that the prosecution bears the burden of proving all elements of the offence and which they had done 91.The Respondent maintained that the prosecution’s evidence was consistent and that the witnesses corroborated each other without contradictions. The Respondent emphasized that the trial Court did not disregard the Appellant’s defence. Instead, the Court considered it but concluded that it did not dislodge or weaken the prosecution’s case. Analysis and determination 92.I have carefully considered the grounds of appeal, the record before me, the rival submissions, the Applicable law and the authorities relied upon. As this is a fist appeal, I am duty bound to undertake independent evaluation of all the evidence adduced in the trial Court and in doing so, I remain mindful that I did not have the opportunity to see or hear the witnesses as they testified. See Okeno vs. Republic [1972] EA 32 93.The Appellant contents that the evidence of assault was uncorroborated but this court finds otherwise PW1 testimony was consistent that the Appellant attacked him by kicking him to the ground testimony corroborated by PW2 that once on the ground he continued to hit him severally with blows and kicks while he lay on the ground and PW2 intervened to stop the attack only to be attacked by the Appellant in similar fashion. Furthermore, the same is corroborated by medical evidence as adduced by PW6. This evidence is further corroborated by PW3 and PW4 testimony. 94.It is immaterial for the medical evidence to disclose the number of assailants as the evidence indicates the Appellant and his co-accused . 95.On the element of identification, the Complainants and the Appellants were neighbors with a long running land boundary dispute and the Appellant in his evidence acknowledged of being in the same meeting with the Complainants that occurred in his home. 96.PW1 evidence of identification of the Appellant is corroborated by PW2 who was equally assaulted, this court is thus persuaded that the Appellant’s identification was by way of recognition and by name. The Appellant and PW1 are neighbours hence the positive identification. In Maina v Republic [2024] KEHC 3870 (KLR), the High Court emphasized that recognition, especially where the accused is known to the complainant, carries greater weight and reduces the possibility of mistaken identity. 97.Similarly, in Amwogo v Republic [2024] KEHC 10129 (KLR), the Court reaffirmed that recognition evidence, when consistent and corroborated, meets the legal threshold for identification in sexual offence cases. 98.I am persuaded that the element of identification has been established to the requisite legal threshold of proof.Whether the ingredients for the offence of malicious damage to property have been proved beyond reasonable doubt 99.Section 339(1) of the Penal Code states as follows: -“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 imprisonment for five years.” 100.In Wilson Gathungu Chuchu v Republic [2018] eKLR, Ngenye Macharia, J held that under the above definition, the elements of the offence may be dissected as follows: -a.Proof of ownership of the property;b.proof that the property was destroyed or damaged;cproof that the destruction or damage was occasioned by the accused; andd.proof that the destruction was willful and unlawful. 101.Further in the case of Simon Kiama Ndiagui v Republic (2017) eKLR, Ngaah J. held that-“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful.” (a)Proof of ownership of destroyed property 102.In the above case, the court stated as follows in respect to proof of ownership: -“Suggestion in this provision that ownership of the destroyed property must be established for liability to attach. My take on this issue is that ownership of the property is a relevant but not the defining factor; it may be taken into account amongst other evidence that tends to establish that the offence was committed. It follows that failure to prove ownership is not fatal to the prosecution case and to this extent I agree with the learned counsel for the state.” 103.Similarly, in Republic v Jacob Mutuma & another (2018) eKLR, the rationale for the offence was explained in the following terms –“In my view, it is not difficult to see why the offence is not necessarily tied down to ownership of particular property. It is to prevent wanton destruction of property that may lead to lawlessness and people taking the law into their own hands.” 104.In this instance the Appellant and the Victims have had a long running boundary dispute and it is not in dispute that PW1had fenced a land that was on the material day subject to a survey which fence the Registrar of lands ordered removed following the meeting at the Appellants home. Further more PW7 tendered photographic evidence of the damage including receipt of the stolen phone following the assault, belonging to PW1 and there is ample evidence of the appellants role. 105.This court finds the evidence sound and unimpeached with any doubt. 106.The Appellant tendered an Alibi defence that he contends was disregarded by the Trial Court. 107.Alibi defence must be laid well in advance and the defence ought to notify the court and prosecution of its existence as was held in the case of R v Sukha Singh S/o Wazer Singh & Others {1939} 6 EACA 145 held:“If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the internal and secondly, if he brings it forward at the earliest possible moment it will give the prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness, proceedings will be stopped.” 108.It is trite that the onus is on the prosecution to displace the defence of alibi after the defence raises it at the trial since as was held by the Court of Appeal in Victor Mwendwa Mulinge vs. Republic [2014] eKLR:“It is trite law that the burden of proving falsity, if at all, of an accused’s defence of alibi lies on the prosecution.” 109.The Court of Appeal in Wangombe vs. Republic [1980] KLR 149 held inter alia:“…in Ssentale vs. Uganda [1968] EA 365, 368 [Sir Udo Udoma CJ]…said that a prisoner who puts forwards an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout on the prosecution. We agree, we have ourselves said so on more than one occasion…The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible.” cited by Odunga J in Republic v SSM [2020] eKLR. 110.In Adedeji vs. The State [1971] 1 All N.L.R 75 it was held by the Nigerian court that:“failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed.” 111.In this instance the Alibi Defence was found to be a mere denial as it was uncorroborated, the Appellant called his sister in support of the same but admitted in cross examination that he had no independent witness of the same while his sister admitted to have testified in his aid in a previous criminal case in which the Appellant was convicted for destroying the same fence. 112.The Fact of his previous conviction for malicious damage to property was introduced in trial and as such was not the basis of the current conviction but as a way to undermine his credibility. 113.Accordingly, this court finds the Petition of Appeal both on conviction and sentence to be devoid of any merit and dismiss the same.It is so ordered. DATED, SIGNED AND DELIVERED AT BUSIA ON THIS 13TH DAY OF JULY, 2026MOHOCHI S.MPRESIDING JUDGE.