[2022] KEHC 334 (KLR)

Kamau v Republic (Criminal Appeal E005 of 2020) [2022] KEHC 334 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 334 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E005 of 2020

MM Kasango, J

May 5, 2022

Between

Stephen Mwaura Kamau

Appellant

and

Republic

Respondent

(An appeal from conviction and sentence in the Chief Magistrate’s Court at Thika, Hon. Riany, SRM, dated 17th November, 2020 in Criminal Case No. 6641of 2015)

Judgment

1. Stephen Mwaura Kamau, was convicted by the Chief Magistrate’s Court Thika on two counts. On the first count he was charged with the offence of discharging a loaded firearm with intent to alarm a person in a dwelling house contrary to Section 95(2)(b) of the Penal Code. On the second count he was charged with the offence of malicious damage to property contrary to Section 339(1) as read with Section 339(3)(b) of the Penal Code. On being convicted by the trial court on those two counts, he was sentenced on count 1 to a fine of Kshs.100,000 in default to one year imprisonment and on count II he was sentenced to a fine of Kshs.200,000 and in default to two years imprisonment.

2. He was aggrieved by both conviction and sentence and has failed this appeal.

3. Both the counts on which the appellant was convicted relate to what occurred on 30th October, 2015.

4. Prosecution’s evidence was that on that subject date Christopher Kamau, the complainant was leaving his house at Gatanga, at 5. 30 a.m. As he came out of his house, he saw two vehicles one pick-up and another he referred to as a personal car. Nine people came out of those cars. They were led by the appellant. They had sledgehammers, “pangas” and fork “jembes”. These people shouted to the complainant telling him to save whatever he could from his house. The complainant rode his bicycle to inform the assistant chief. The assistant chief informed the complainant that he had not authorized anyone to carry out demolition. When the complainant returned to his home, he found his house and the toilet completely demolished. He produced photographs in evidence which evidenced the destruction of his home. Complainant’s reaction was to scream. The villagers responded to this scream. It is when those villagers responded to complainant’s screams that the appellant shot his gun in the air.

5. The appellant by his defence stated that he purchase the land part of which the complainant’s house was built. The land was sold to him by complainant’s father. When he purchased that land, some of complainant’s brother declined to move out of the land but eventually, did. The complainant agreed to move out after he was given an alternative accommodation, of his grandfather’s house, to move to. The appellant stated the complainant, on the subject day, requested the appellant to assist him to move into his (the complainant’s) grandfather’s house. Appellant stated he and his witness arrived at complainant’s house at 8. 00 A.M. They found complainant’s house was demolished and the iron sheets were placed aside. Appellant further stated:"He (complainant) said he was going to get people to help him load his items while I went and got a tractor and started digging. Reaching halfway at around noon, complainant came with a crowd on motorbikes and ‘pangas’ and attacked me saying I leave or they will cut me up.”

Analysis and Determination 6. This is the first appellate court. As such, this Court is required to look at the evidence adduced before the trial court afresh, re-evaluate that evidence and reach its own independent conclusion. This indeed was the holding in the case Eliud Waweru Wambui Vs. Republic (2019) eKLR thus:-"It is required to and must be seen to be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant, the only limitation to its task being a remembrance that it is without the advantage, enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance."See Pandya Vs. Republic [1957] EA 336, Okeno Vs. Republic [1972] EA 32. ”

7. The appellant has raised nine grounds of appeal. By those grounds, the appellant faulted the trial court on several fronts, that is, the trial court did not analyse the evidence; that the trial court lumped together the two counts and thereby reached the wrong decision; that it disregarded appellant’s evidence which evidence proved there was reasonable doubt in the prosecution’s case; that it failed to consider the inconsistencies in prosecution’s evidence; that it shifted the burden of proof to the appellant; and that the trial court’s sentence was harsh.

8. What the above grounds of appeal call upon this Court to consider is whether the prosecution proved its case on required standard of proof and whether the appellant raised reasonable doubt of the prosecution’s evidence. This case is essentially a factual-based one. It does not involve controversial law.

9. The fact that the complainant’s house was demolished is confirmed by the complainant, by the complainant’s brother Martin Mugnai, by the officer in charge of station (OCS) Kabati and by the appellant. The question that arises is did the evidence offered by the prosecution prove that the said demolition was as a result of malicious damage as provided under Section 339(1) of the Penal Code?

PARA 10.

Before delving further on that discussion, I need to state that the appellant was charged on the second count with the offence of malicious damage to property contrary to Section 339(1) of the {{Penal Code}}as read with Section 339(3)(b) of the Penal Code. In my view, the inclusion of Section 339(3)(b) was not applicable. It was indeed superfluous the appellant, in view of the facts before the trial court, should only have been charged with the offence of malicious damage to property contrary to Section 339(1) of the Penal Code. Having been charged additionally under Section 339(3)(b) which as I stated was superfluous, did not occasion failure of justice, the appellant was not prejudiced. Accordingly, that error is curable as provided under Section 382 of the Criminal Procedure Code. That Section provides as follows:"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 11. It is therefore my determination that this Court only need consider the provisions of Section 339(1) of the Penal Code. The Section provides:"Any person who wilfully 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.”

12. The elements of the offence of malicious damage to property were considered in the case Timothy Mutuku Kitonyi Vs. Republic (2021) eKLR as follows:39. In Simon Kiama Ndiagui Vs. 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 wilful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful.’”

13. The court in the case Margaret Nkoroi Vs. Republic (2018) eKLR had this to say on what prosecution should prove in respect to a charge of malicious damage to property:"25. The prosecution was indeed duty bound to prove the act of the appellant was wilful and unlawful. The word wilful is defined in the Black’s Law Dictionary Eighth Edition as:-“the word ‘wilful’ or ‘wilfully’ when used in the definition of a crime, it has been said time and again, means only intentionally or purposely as distinguished from accidentally or negligently and does not require any actual impropriety; while on the other hand it has been stated with equal repetition and insistence that the requirement added by such a word is not satisfied unless there is a bad purpose or evil intent.”

14. Did the prosecution prove those elements of the charge? That is, was there proof of intent and unlawfulness? 15. What is evident from the trial court’s evidence is that the appellant purchased land from the complainant’s father. According to the complainant and his brother the land purchased by the appellant did not include where the complainant’s house was. According to complainant’s brother, Martin Mungai, their father sold 3 acres of land to the appellant. The other remaining portion belonged to him and the complainant. Each of them owned one acre. Martin Mungai stated that he sold his one acre to the appellant. The complainant, however did not sell his one acre. He did not sell because he did not have any other land to move to. Complainant’s brother stated that he was later to learn that the complainant’s one acre was not excised from the main title, which title was in their father’s name. Martin Mungai said:-"So accused (here the appellant) kept the whole title of land.”

16. The appellant’s evidence was that he purchased, initially 3 acres from complainant’s father on 24th April, 2012. On 15th November, 2012 he purchased from complainant’s father the remaining 2 acres. That he gave time to those on the land, at their requested for them to find alternative land. That they eventually moved out except one son the complainant. The appellant stated that complainant was called by his father, although he did not state when this was, and that his father gave him, the complainant, keys to his grandfather’s house in Ngolitha and asked him to move to that house. The appellant stated that on the material date he went, as requested by the complainant, to assist the complainant to move out of the subject property. He said he went to assist the complainant move out by using his pickup.

17. Although the appellant stated that when he and his witness arrived at complainant’s home, they found the complainant’s house demolished his witness, Peter Mwangi Gathura, did not state so. That witness said that on arriving at the complainant’s house, they left him, the complainant organizing himself while they went to look for a tractor to dig.

18. It follows that although the appellant’s contention is that the complainant demolished his own house before the appellant and his witness arrived that issue however was not put to the complainant when he was cross-examined, and it was not supported by the appellant’s witness.

19. Further, the appellant’s witness in evidence stated that on arriving at the complainant’s home he and the appellant went to look for a tractor to dig the land. Appellant however stated that when the appellant and his witness arrived, the complainant, having already demolished his own house said he was going to look for people to help him load his items of property. It is not clear where the complainant was to load those items because looking at the photographs exhibited at the trial the items could not have fitted into a pick-up. There was several iron sheets, building stones and personal property in the photographs exhibited at the trial.

20. It is also strange that although the appellant ostensibly had gone to assist the complainant move house, he obtained a tractor and dug the land where the complainant’s house was originally built. The question one would then ask is: did the appellant go to assist the complainant move or did he go to plough the land?

21. It is clear from the evidence of the complainant and the appellant that the complainant was reluctant to move out of the land where he had built his house. The complainant gave the reason why he did not move out was because:I have children and wife. I cannot sell off the family house and land and leave them homeless.”

22. The trial court after setting out the evidence adduced made the following finding:For the accused (here the appellant) to have gone to the scene at 5. 30 am it was also clear that he had no good intention against the complainant.”

23. This Court concurs with the trial court’s finding on the second count. There indeed was no reason shown why the complainant would demolish his own house and as described by OCS that the place where complainant’s house had been “totally demolished and the place was scattered with stones, household goods and timber.” If indeed the complainant demolished his own house, he would not have left his items of property scattered. Mind you, the complainant stated he had declined to sell his property because it would have left his family landless, and this was confirmed by the appellant who said the complainant initially declined to vacate the land. The speed with which the appellant ploughed that land and because the complainant had refused to vacate will lead to this Court to accept the evidence of the complainant as credible and indeed it met the standard of proof in criminal trial. The complainant’s evidence proved that the destruction of his house and toilet was wilful and was an unlawful act. That demolition was obviously intended to facilitate eviction of the complainant. Count II was therefore proved by prosecution beyond reasonable doubt.

24. On the charge on Count 1, I am in agreement with the submissions made by the respondent that the fire arm having been discharged outside and not in a dwelling house, the facts adduced by the prosecution failed to meet the elements of that offence. The conviction on that count shall hereby be quashed.The appellant also appealed against his sentence by the trial court. On Count II appellant was sentenced to pay a fine of Kshs.200,000 and in default to serve a jail term to two ears. Section 339(1) of the Penal Code provides that on conviction on that section, a misdemeanour, one is liable to sentence of imprisonment of five years if no other punishment is provided. In considering the appeal on sentence, I am guided by the case Timothy Mutuku Kitonyi V Republic [supra]48. As regard the sentence, in Bernard Kimani Gacheru Vs. Republic[2002] eKLR, it was restated that:-“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”

25. The appellant other than requesting this Court to reduce the trial court’s sentence did not offer reason why this Court should interfere with the trial court’s sentence. I can find no evidence of the trial court overlooking material factor or having acted in wrong principles. There is no basis of interfering with that sentence on count II.

Disposition 26. The Judgment of this Court is:(a)The appeal on Count 1 is successful and accordingly, the conviction on Count 1 is quashed and the sentence on Count 1 is hereby set aside.(b)The appeal on Count 11 is declined and is dismissed. The conviction on Count 11 is upheld and the sentence thereof is confirmed.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceAppellant: Stephen Mwaura Kamau: N/AFor Appellant: - N/AFor Respondent: - KasyokaCOURTJUDGMENT delivered virtually.MARY KASANGOJUDGE