[2015] KEHC 427 (KLR)
The court found that there were allegations and counter-allegations between the parties, both of whom had witnesses supporting their respective versions. The existence of a land dispute was corroborated by the Assistant Chief, an independent witness. Given the conflicting evidence and the context of the land...
Source-derived case information.
- Citation
- [2015] KEHC 427 (KLR)
- Parties
- Appellant: Patrick Masila Musyimi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 235 of 2010
- Procedural Posture
- Criminal Appeal / Judgment on First Appeal
- Outcome
- appeal allowed; conviction quashed; appellant set at liberty
- Judges
- BT Jaden
- Legal Topics
- Creating Disturbance, Burden of Proof, Credibility of Witnesses, Land Dispute Context
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Masila Musyimi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment on First Appeal
Legal Issues
- 1 Whether the prosecution proved the offence of creating disturbance beyond reasonable doubt.
- 2 Whether the conviction was against the weight of evidence.
- 3 Whether the existence of a land dispute created reasonable doubt as to the guilt of the appellant.
Ratio Decidendi
The court found that there were allegations and counter-allegations between the parties, both of whom had witnesses supporting their respective versions. The existence of a land dispute was corroborated by the Assistant Chief, an independent witness. Given the conflicting evidence and the context of the land dispute, the court held that it was difficult to determine which side was truthful. Accordingly, the appellant was entitled to the benefit of doubt, and the conviction could not be sustained.
Court Disposition
appeal allowed; conviction quashed; appellant set at liberty
Orders
- The appeal is allowed.
- The conviction is quashed and sentence set aside.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 235 OF 2013
PATRICK MASILA MUSYIMI ……..….…… APPELLANT
VERSUS
REPUBLIC
(Being an appeal from the conviction and sentence of Hon. B.M. Kimemia Senior Resident Magistrate delivered on 30/7/2010 in Kitui Principal Magistrate Criminal Case No. 1203 of 2009)
************************************
(Before Hon. B. Thuranira Jaden J)
J U D G M E N T
The Appellant, Patrick Musila Musyimi, was charged with the offence of creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the penal code.
When the Appellant was arraigned before the Trial court, he pleaded not guilty. The case proceeded to a full hearing. The prosecution called four witnesses in support of their case.
The Complainant, Pw1 Muema Kilonzi, his mother Pw2 Kavenya Kilonzi and his wife Pw3 Koki Muema testified herein. Their evidence was that they were working at their farm when the Appellant came with some of his family members. That the Appellant advanced towards the complainant while holding a panga and threatened to kill him. The complainant and his family members ran away. That the appellant and his family members then started removing the maize seeds that the complainant’s family had planted and started planting millet. The matter was reported to the police and the appellant was arrested and subsequently charged with the offence herein.
In his defence case the Appellant gave sworn evidence and called three witnesses. That is Dw2 Nzeri Musyimiwho is his mother, Dw3 Kitonga Mulandiand the Assistant Chief, Dw4 Samuel Musyimi. The defence side blames the complainant for working on the land which had a land dispute and the parties were to maintain the status quo and not work on the said land. It was denied that any disturbance was created. The defence termed this case as a frame up due to the land dispute.
The trial magistrate convicted the appellant and sentenced him to five (5) months imprisonment. The Appellant was aggrieved by the conviction and sentence and appealed to this court. The Appellant’s counsel raised eleven (11) grounds of appeal which can be summarised as follows;
That the prosecution failed to discharge the burden of proof.
That the conviction was against the weight of the evidence.
That the prosecution evidence was uncorroborated, contradictory and unreliable.
That the case was a frame up due to a land dispute.
That the sentence was harsh and excessive.
During the hearing of the appeal, the parties agreed to proceed by way of written submissions. I have considered the said submissions.
This being a first appeal, this court is duty bound to re-evaluate the evidence and the record afresh and come to its own conclusions and inferences – See Okeno –vs- Republic (1972) EA 32.
The Complainants side gave evidence that blamed the Appellant for creating a disturbance. Two witnesses from the scene corroborated the complainant’s evidence. On the other hand the Appellant testified and blamed the complainant for working on the disputed land. The Appellant also called two eye witnesses. It is rather difficult in the face of these allegations and counter allegations to tell which side told the truth. Although the complainant’s side denied the existence of a land dispute, the Assistant-Chief who is an independent witness supported the defence case. The evidence of the Assistant Chief was that the land dispute existed.
In the premises, the Appellant ought to have been given the benefit of doubt. The appeal has merits and is allowed. The Appellant is at liberty unless otherwise lawfully held.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 21st day of December 2015.
………………………………………
B. THURANIRA JADEN
JUDGE