[2019] KEHC 5869 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 47 OF 2015

PATRICK MWANGI NGUGI...........APPELLANT

VERSUS

REPUBLIC......................................RESPONDENT

[Appeal from the judgment in Criminal Case No. 11 of 2015 at

Kandara by C. Kithinji, Resident Magistrate, dated 8th May 2015]

JUDGMENT

1. The appellant was adjudged guilty of setting fire to trees contrary to section 334 (c) of the Penal Code. He was sentenced to ten yearsimprisonment.

2. The particulars were that on 1st January 2015 at Muirini village, Mungaria Sub-Location, Kandara District within Murang’a County, he willfully and unlawfully set fire to one acre of blue gum and wattle trees belonging to Luciah Wangari Kiondo. The value was placed at Kshs 300,000.

3. He lodged a petition of appeal on 26th May 2015. He challenges both the conviction and sentence. Regarding his conviction, he contends that his defence was not taken into consideration. On sentence, he pleaded that he was a first offender; that his mitigation was not taken into account; and, that the punishment was too harsh. The appellant informed me that he was remorseful and sought for clemency.

4. The appellant continues to protest his innocence. He repeated his defence in the lower court: that there was an underlying land dispute between him and the complainant; that he is the one who planted the trees; and, that the criminal proceedings were a stratagem to steal his inheritance.

5. Learned Prosecution Counsel opposed the appeal. She submitted that all the elements of the offence were proved; and, that the sentence handed down was lenient.

6. This is a first appeal to the High Court. I have re-evaluated the evidence and drawn independent conclusions. I am cognizant that I neither saw nor heard the witnesses. Njoroge v Republic [1987] KLR 19, Okeno v Republic [1972] EA 32.

7. On 1st January 2015 at about 10:00 p.m., the complainant (PW1) was in her house. She heard someone bang her gate. She switched off the lights in her house but left the security lights on. She peeped through the window. She testified further as follows-

“I saw Mwangi holding a paper bag and a metal rod. He stood momentarily. I was looking at him. He went down to the lower side.”

8. In cross examination, the witness said she did not go to the lower side. She said she stayed inside the house as she feared for her safety. She is the wife of the appellant’s grandfather. Accordingly, she was of the view that the land belonged to her. She asserted that the appellant’s father owns some other land where the appellant resides. She denied that the appellant planted the trees.

9. At about 10:30 p.m., her neighbour, Joyce Wairimu (PW2) informed her that the tree plantation was on fire. PW2 had seen smoke billowing from the complainant’s farm. She said the fire was fierce and was only contained at about 2:00 a.m. When cross examined by the appellant, she confirmed that she did not see him.

10. PW3 is a son of the complainant. He was not at the scene on the night of the fire. On 28th December 2014, he had a discussion with the appellant regarding the dispute over trees. The appellant told him he planted the trees and had marked them. When PW3 informed his mother, she denied ever allowing the appellant to plant the trees.

11. On 6th January 2015, PW3 organized a group of villagers who laid an ambush and arrested the appellant. He was handed over to Githumu Police Station. This was confirmed by PW5, Police Constable Cherotich. PW5 testified that the appellant was re-arrested by his three colleagues including PW6, P.C. Kipkosgei.

12. The police also recovered 300 grams of cannabis in the appellant’s leather jacket. PW5 said the appellant had escaped from police custody a year earlier.

13. PW4 was Solomon Ng’ang’a. He is a village elder. He said that at about 7:00 p.m., on 1st January 2015, he saw the appellant at Muirini Shopping Centre. He had a metal rod and a small beer bottle. On his way home, PW4 saw the inferno. He screamed. He said that the appellant told him “to shut up or [go] to him”. He said he asked the appellant whether the bottle he had seen earlier contained fuel but he got no answer.

14. The witness said the appellant spoke in a loud voice; and, that he clearly saw him from the light generated by the fire. The following morning, PW4 went back to the scene and collected the bottle (exhibit 1). He said the land does not belong to the appellant because the appellant’s mother is still alive and has other children.

15. When the appellant was placed on his defence, he denied setting the plantation on fire. He also denied being in possession of the cannabis. The material part of his defence went as follows-

“The [complainant] took away my parcel of land and destroyed all the crops I had planted. She left some trees standing [sic]; when they matured, I asked her to let me cut the trees. I did this in the presence of the children. I got a buyer. I called her on phone and she declined…..”

16. I have re-appraised the evidence. For starters, Count II for possession of cannabis sativa was withdrawn on 26th February 2015.

17. From the evidence of PW1, PW2 and PW4 there is no doubt that about an acre of blue gum and wattle trees were burnt on the night of 1st January 2015. From the further evidence of PW4 and PW6, the fire was an act of arson. Traces of petrol were found in the bottle recovered by PW4 at the scene.

18. The important question is whether the appellant started the blaze. No one saw him set the trees alight. But there are three compelling pieces of circumstantial evidence. The first is from PW1. She clearly saw the appellant through a window. There was electric light. The appellant was holding a paper bag and a metal rod. He then “went down to the lower side”. PW1 did not go that side or leave her house. She was alerted of the fire by PW2. PW2 did not see the appellant.

19. The second incriminating piece of evidence was from PW4. He knew the appellant. He saw the appellant at 7:00 p.m. at the shopping centre holding a metal rod and a small beer bottle. On his way home he saw the fire. He spoke with the appellant at the scene and identified him from the light generated by the fire.

20. The third compelling piece of evidence is the Government Analyst Report dated 28th January 2015 [exhibit 2 (b)]. Traces of petrol were detected in the small beer bottle recovered at the scene. PW4 had seen the appellant holding the same bottle at the shopping centre.

21. The appellant was thus positively identified and placed squarely at the scene of the crime. His defence that he owned the trees is hopeless. I agree there was a simmering dispute over ownership of the land or the trees. But even assuming that the appellant had a stake in the property; or, that he planted the trees, it would not justify or excuse the arson.

22. In the end, I concur with the learned trial magistrate that the chain of circumstantial evidence was complete. The prosecution proved that the appellant willfully set fire to the trees. I find there is no other hypothesis than that of his guilt.R v Kipkering arap Koske & another 16 EACA 135 (1949). The appeal on conviction is dismissed.

23. I will now turn to the sentence. Section 354 (3) of Criminal Procedure Code empowers this court to review the sentence. In Macharia v Republic [2003] 2 E.A 559 the Court of Appeal held-

“The Court would not alter a sentence on the mere ground that if the members of the court had been trying the appellant they might have passed a somewhat different sentence and it would not ordinarily interfere with that discretion exercised by a trial judge, unless it was evident that the judge acted upon some wrong principles or overlooked some material factors.”

24. The appellant did not mitigate. It cannot now fall from his lips that his mitigation was not taken into consideration. Furthermore, the trial court called for a pre-sentencing report. The court properly found that a non-custodial sentence was unsuitable.

25. The offence carries a sentence of up to fourteen years. But I have considered that the appellant was a first offender and aged 25 years. The underlying motive was a dispute over ownership of the family land and the trees. Granted those circumstances, the sentence was too harsh. The appellant has been in custody since 8th January 2015. I think he has learnt his lesson.

26. I will accordingly reduce the sentence to the period served. The appellant shall be set at liberty forthwith unless otherwise lawfully held.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 10th day of July 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

The appellant (in person)

Mr. Mutinda for the Republic.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.