https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13098

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CRIMINAL APPEAL NO. E111 OF 2024** **DK RONO, J** **23 JUNE 2026** **BETWEEN** **MWIRIGI M’MBORU…………………………………. APPELLANT** **AND** **REPUBLIC……………………………………………RESPONDENT** **JUDGEMENT** **Background** 1. The Mwirigi M’mboru (“the Appellant”) was charged before the Senior Principal Magistrate's Court in Githongo with the offence of malicious damage to property contrary to S 339 (1) of the Penal code. The particulars of the offence were that on the 27 October 2023 at about 1700hrs at Riji Village, Kathai East Location, Imenti Central sub- county, willfully and unlawfully damaged maize plantation valued at Kshs 35 000 the property of Martin Kimathi Murithi. 2. The Appellant pleaded not guilty and the case went into full trial in which the prosecution called five witnesses. At the close of the prosecution's case, the trial court found that the Appellants had a case to answer. The Appellant elected to adduce sworn evidence. At the close of the defence case, the court found the Appellant guilty for the offence of malicious damage to property contrary to s 339(1) of the Penal Code. Consequently, the trial court convicted the Appellant and sentenced him to five years imprisonment. 3. The Appellant being aggrieved of the conviction and sentence rendered by the trial court in MCCR Case No. E604 of 2023 preferred an appeal against the whole decision of the trial court and raised several grounds of appeal to wit: 4. That the learned trial magistrate erred in both law and fact by relying on uncorroborated and contradicting evidence tendered by the prosecution witnesses; 5. That the learned trial court magistrate erred in both matters of law and also a fact where he failed to note that the sentence was harsh and excessive; 6. That the grounds herein were laid down in the absence of the court judgment and proceeding, the same may be change when availed with the court judgment and proceeding; 7. The Appellant prays that the appeal be allowed, sentence set aside, conviction quashed and he be set at liberty. **Appellant’s submissions** 1. The Appellant despite requesting for time to file his submission and such leave being granted the Appellant did not file his submissions as directed. The Appeal will nonetheless be determined based on the entirety of the record of appeal and his memorandum of appeal. **Respondent’s submissions** 1. The prosecution called five witnesses in support of its case against the appellant. PW1, the complainant, Martin Kimathi, testified that on 27/10/2023 he received information from his brother, Wilson Mureithi, that the Appellant had entered his parcel of land known as LR No. Abothoguchi/Katheri/5172 and was uprooting maize crops planted thereon. He stated that the appellant had previously threatened him and had earlier destroyed avocado seedlings on the same land. PW1 reported the matter to the police, after which police officers and an agricultural officer visited the scene, took photographs and assessed the damage. He testified that he lawfully purchased the land from one Catherine Kinya Thruanira, a niece of the appellant, and produced documentary evidence including a sale agreement, title deed, DCI verification letter, photographs, agricultural assessment report and OB extracts. He maintained during cross-examination that he was the registered owner of the suit property. 2. PW2 testified that on the material day he was walking with PW5 from work on an adjacent parcel of land when they saw the appellant enter the complainant’s land and uproot maize crops therefrom. 3. PW3, Morris Koome, an agricultural officer, testified that on 30/10/2023 he visited LR No. Abothoguchi/Katheri/5172 at the request of Githongo Police Station for purposes of crop damage assessment. He found damaged maize crops at crop stage and assessed that about 7,000 maize stems had been destroyed, valuing each at Kshs. 5. He produced the assessment report as an exhibit. 4. PW4, PC Mustafa Napoya, the investigating officer, testified that he received the complaint, conducted investigations into ownership of the land, verified the complainant’s title deed, visited the scene, photographed the damaged crops and referred the complainant to the agricultural officer for assessment. He later arrested and charged the appellant with the offence of malicious damage to property. 5. PW5, Wilson Kimathi, corroborated the evidence of PW2 and testified that while passing near the complainant’s farm he saw the appellant uprooting maize crops. He informed the complainant of the incident and further testified that the land had been purchased from one Catherine, though the appellant had persistently claimed ownership thereof. 6. In his defence, the Appellant denied the charge and alleged that his own crops had also been destroyed. 7. Counsel submitted that the appellant was properly convicted for the offence of malicious damage to property under s 339(1) of the Penal Code. Reliance was placed on the decision in *Wilson Gathungu Chuchu v Republic*[2018] eKLR where the court outlined the ingredients of the offence as proof of ownership of the property, proof of destruction or damage, proof that the accused caused the destruction, and proof that the act was wilful and unlawful. 8. It was submitted that the prosecution proved ownership of the suit property through the evidence of PW1 and PW4, supported by the title deed and DCI verification letter, and that no evidence was tendered to challenge the complainant’s ownership. 9. Counsel further submitted that the prosecution established destruction of the maize crops through photographic evidence, the agricultural officer’s report and the testimonies of the prosecution witnesses who witnessed the destruction. 10. It was further argued that the evidence of PW1, PW2 and PW5 proved beyond reasonable doubt that the appellant unlawfully and intentionally uprooted maize crops on the complainant’s land without any colour of right or authorization. 11. Reliance was also placed on the decision in *Timothy Mutuku Kitonyi v Republic* [2021] KEHC 1388 (KLR) where the court held that destruction of another person’s property without lawful justification amounted to wilful and unlawful conduct within the meaning of s 339(1) of the Penal Code. 12. On sentence, counsel submitted that the trial court properly exercised its discretion and imposed an appropriate sentence after considering the probation report and the appellant’s antecedents, including previous convictions of a similar nature. Reliance was placed on *Bernard Kimani Gacheru v Republic* 2002] KECA 94 (KLR) and *Timothy Mutuku Kitonyi* (supra) for the principle that an appellate court should not interfere with sentence unless it is manifestly excessive or based on wrong principles. It was therefore urged that both the conviction and sentence be upheld. **Analysis And Determination** 1. This being the first appellate court, I am expected to subject the entire evidence adduced before the trial court to fresh evaluation and analysis. This I do while bearing in mind the fact that I did not have the opportunity to hear the witnesses and observe their demeanour. For this I give due allowance. The principles that apply in the first appellate court are set out in the case of *Okeno v Republic*[1972] EA 32 where it was stated as follows: *‘The first appellate court must itself weigh conficting evidence and draw its own conclusion. (Shantilal M. Ruwala v Republic*[1957] EA 570.) *It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses,* (See*Peters v Sunday Post*,[1958] EA 424.)’ 1. Further in *Mark Oiruri Mose v Republic*[2013] eKLR Criminal Appeal No.295 of 2012 the Court of Appeal stated: *‘It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court afresh, analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.’* 1. Similarly the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in *Pandya v Republic* [1957] EA 336 is as follows: *‘On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court difering from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.’* 1. In view of the above, I have perused and considered evidence adduced before the trial court together with submissions herein and wish to consider the following: 2. Whether the ingredients/elements for the offence of malicious damage to property have been proved beyond reasonable doubt 3. Whether the sentence imposed against the appellant was harsh and excessive **Whether the ingredients for the offence of malicious damage to property have been proved beyond reasonable doubt.** 1. Section 339(1) of the Penal Code states as follows: *‘Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.’* 1. In *Wilson Gathungu Chuchu v Republic*[2018] eKLR**,** it was held that under the above definition, the elements of the offence may be dissected as follows:\ 2. Proof of ownership of the property; 3. Proof that the property was destroyed or damaged; 4. Proof that the destruction or damage was occasioned by the accused; 5. Proof that the destruction was willful and unlawful. 6. Further in the case of *Simon Kiama Ndiagui v Republic*(2017) eKLR, it was 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.’* 1. **Proof of ownership of destroyed property** 2. 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.’* 1. Similarly, in *Republic v Jacob Mutuma & another*(2018) eKLR explained in the following terms, the rationale for the offence was: *‘In my view, it is not diffcult 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.’* 1. The complainant testified that he lived in Katheri where he operated a taxi business and that the accused was his neighbour with whom they shared a common boundary. He stated that on 27 October 2023 at about 5.00 p.m., he received a telephone call from his brother, Wilson Kithinji Mureithi, informing him that he had found the accused person in his maize plantation situated on parcel number Abothuguchi/Katheri/5172. The complainant produced a copy of the title deed in respect of the said parcel which was marked as PMFI 1. He further testified that his brother informed him that the accused, Mwirigi M’Mbuuri, was in the act of uprooting his maize crops. Since he was far from the scene, he was unable to proceed there immediately, but upon later visiting the farm he found a large portion of his maize crops uprooted. 2. The complainant further testified that a few days prior to 27 October 2023, the accused had verbally threatened to uproot any crops planted on the land. He stated that he had reported those threats at Githongo Police Station vide O.B No. 0600/09/2023 and O.B No. 015/24/08/2023, which extracts were marked as PMFI 2(a) and (b). According to the complainant, the accused thereafter implemented those threats by uprooting the crops. He added that the accused had previously uprooted his avocado tree seedlings. The complainant informed the OCS of the destruction and police officers accompanied him to the scene where photographs of the destruction were taken. Three photographs were marked as PMFI 3(a), (b) and (c). 3. The complainant produced a sale agreement dated August 2020 together with the title deed for Abothuguchi/Katheri/5172 measuring approximately 0.02 hectares. He further testified that on 26 November 2020 the Directorate of Criminal Investigations at Kariene had verified the title deed as genuine and the verification letter was marked as PMFI 6. 4. **Proof that the property was destroyed or damaged** 5. The complainant further testified that a few days prior to 27 October 2023, the accused had verbally threatened to uproot any crops planted on the land. He stated that he had reported those threats at Githongo Police Station vide O.B No. 0600/09/2023 and O.B No. 015/24/08/2023, which extracts were marked as PMFI 2(a) and (b). According to the complainant, the accused thereafter implemented those threats by uprooting the crops. He added that the accused had previously uprooted his avocado tree seedlings. The complainant informed the OCS of the destruction and police officers accompanied him to the scene where photographs of the destruction were taken. Three photographs were marked as PMFI 3(a), (b) and (c). He further testified that the agricultural officer visited the scene and assessed the crop damage at Kshs 35 000. The report was marked as PMFI 4. 6. On 30 November 2023, PW3, Morris Koome Mukaria, the Ward Agricultural Officer for Abothuguchi West, testified that on 30 October 2023 he received instructions from the OCS Githongo Police Station to assess crop damage. He visited land parcel Abothuguchi/Katheri/5172 belonging to Martin Kimathi and found maize crops at the vegetative stage destroyed. He assessed the damage at 7,000 maize stems valued at Kshs 5 each and produced his report dated 30 October 2023 as an exhibit. During cross-examination, he stated that he followed the farmer’s directions to the location and that his role was not to verify ownership documents but merely to assess crop damage. He acknowledged that another report shown to him did not relate to parcel number 5172. 7. PW4, Police Constable Napoya, testified that he was based at Githongo Police Station and was the investigating officer in the case. He stated that on 28 October 2023 Martin Kimathi reported that his crops had been maliciously damaged. He visited the farm, made observations, and referred the complainant to the Agricultural Officer for assessment of the crop damage. The resulting report assessed the damage at Kshs 35 000. 8. **Proof that the destruction was occasioned by the accused** 9. Wilson Kithinji later testified that he lived in Riiji, worked as a farmer and staff supervisor at Mem Pork Hotel, and that Martin Kimathi was his brother. He testified that on 27 October 2023 at about 5.00 p.m., while returning from his leased farm adjacent to the accused’s home, he saw the accused uprooting and cutting young maize plants on Martin’s farm. He was together with Lawrence at the time. Upon seeing them approach, the accused fled into his house screaming for help from his children. Wilson informed Martin who later confirmed the damage. He testified that this was the third occasion the accused had committed such acts and that the accused had twice been convicted previously. 10. **Proof that the destruction was willful and unlawful** 11. The Accused gave sworn testimony in his defence and stated that he lived in Riiji where he farmed coffee, macadamia, and bananas. He denied the charges and claimed that it was the complainant who had entered his land and destroyed his coffee. He produced several defence exhibits including a chief’s letter showing he was the administrator, a letter from the agricultural officer indicating that his crops had been destroyed, P3 forms showing he had been attacked and injured, an O.B extract dated 24 August 2021, and another P3 form showing he had again been attacked by the complainant’s worker. During cross-examination, he admitted that he had no title deed to the complainant’s land but stated that he had title documents for his own land. 12. Having re-evaluated the evidence tendered by the Respondent and the defence evidence tendered by the Appellant before the trial court, I am satisfied that the charge was proven against the Appellant beyond reasonable doubt. The conviction as against the Appellant is therefore affirmed. **Sentence** 1. In determining sentence, the court considered the accused’s antecedents, including prior convictions for malicious damage and stealing, as well as the fact that he had previously been before the court in related criminal proceedings. The court also took into account the pre-sentence report dated 12th April 2024, which portrayed the convict as a continuing risk to public peace and order, and the absence of remorse on his part. 2. This court is equally bound to consider all relevant mitigating circumstances, including the advanced age of the convict, who is about 74 years old. Age is a recognised mitigating factor in sentencing, particularly where the objective of punishment must be balanced against humanity, proportionality, and the diminishing utility of incarceration in very elderly offenders. While prior convictions remain an aggravating factor, they do not automatically displace mitigation grounded in extreme old age, especially where imprisonment would amount to a sentence that is disproportionately harsh in the circumstances. 3. In the present case, the aggravating factors must be weighed against the convict’s advanced age and the attendant diminished physical capacity and rehabilitative prospects. The principles of sentencing require that punishment must not only reflect retribution and deterrence but must also remain just, proportionate, and tailored to the individual circumstances of the offender. 4. Accordingly, while the custodial sentence is warranted in view of the seriousness of the offence and the convict’s antecedents, this court finds that a reduced custodial term is appropriate in balancing the competing considerations. A sentence of five years, as imposed by the trial court, is found to be excessive in the circumstances. 5. In view of the foregoing, I am satisfied that the Appellant has sufficiently been punished. I allow this appeal with respect to the sentence and reduce the sentence to the period that the appellant has already served. He is accordingly set free forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 23 DAY OF JUNE 2026. D K Rono Judge