https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7690

Mwangangi v Republic (Criminal Appeal E053 of 2025) [2026] KEHC 7690 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7690 (KLR) Republic of Kenya In the High Court at Embu Criminal Appeal E053 of 2025 RM Mwongo, J June 3, 2026 Between Peter Mwangangi Appellant and Republic Respondent (Appeal arising from the decision of Hon. S. K. Ngii in Siakago MCCR E199 of 2023 delivered on 14th March 2025) Judgment Background 1.The appellant, among other people, was charged with 2 counts of malicious damage to property. The particulars of the 1st count were that on 21st February 2023 at Mariari village, Kiambere sub-location in Mbeere South Subcounty within Embu County, the appellant, willfully and unlawfully damaged a fence valued at approximately Kshs.80,000/=, the property of one Leonard Kiburi Ngoci (1st complainant) by setting it on fire. The particulars of the 2nd count, were that 21st February 2023 at Mariari village, Kiambere sub-location in Mbeere South Subcounty within Embu County, the appellant, willfully and unlawfully damaged a live fence valued at approximately Kshs.130,000/=, the property of one John Mwenda Njoka (2nd complainant). 2.Following a hearing, the appellant and his co-accused were convicted. The trial court considered pre-sentence probation reports and noted that the appellant, unlike his co-accused, was a repeat offender, thus, not suitable for a non-custodial sentence. He was sentenced to 2 years imprisonment on each count, the sentences running consecutively. The Petition of Appeal 3.Being dissatisfied with the findings of the trial court, the appellant filed a petition of appeal on 30th September 2025, challenging the abovementioned decision. He prayed that the conviction by the trial court be set aside or that the court orders that the sentences imposed run concurrently or be changed to non-custodial sentences. The appeal is premised on grounds that:1.The learned trial magistrate erred both in law and facts failing to consider the insufficiency, inconsistency and irregularities occasioned in the prosecution case;2.The learned trial magistrate still erred in both law and facts when failed to consider that the I.O, did not do proper and enough investigations and finding in the alleged crime before taking the matter and accused to court, an important obligation to have proceeded in a criminal offence of this nature;3.The learned trial magistrate erred in law and facts when he failed to consider that the case was brought by malice and grudge over land case still in Kerugoya court and the complainants and witnesses were people with passion and compromised by promise of land in the dispute over property Block Mbeere/Kiambere 1959 by PW2 who had given PW1 land;4.The learned trial magistrate erred in law and facts when he failed to allow my strong credible, unrebuttable, corroborated alibi in my defense case;5.The learned trial magistrate erred in law and facts when he failed to consider the contradictions and uncorroborated evidence by some witnesses which was a tantamount frame up and a cover up in the prosecution case and;6.The learned magistrate failed in both law and facts when failed to consider that I was not at the alleged scene at parcel No 4662 and 4663 respectively on the material date and time on 21st February 2023 1430 hours, and no single day and time did I meet with any other accused persons to plan or commit a crime. That I remained at my home in parcel No. 2603 from 6am to 6pm in the evening. Summary of the Evidence 4.PW1 was Leonard Kivuti Ngoci a farmer and owner of land parcel number Mbeere/Kiambere/4663. He testified that the land belonged to him and produced a copy of the title or P.Exb 1. He stated that 7 men including the appellant went to him claiming that this land belonged to them and they wanted him to leave. One of the men had a jerrycan of petrol which he poured on the fence. The men said that they were the ‘government; and that the local administration was on their side. They set the fence on fire using cartons and the petrol they had and the fire spread to a neighbour’s fence, consuming it. 5.He stated that his fence was valued at Kshs.240,000/=. He reported the incident at the police station. He had the damage assessed by a forest officer who valued the damage at Kshs.254,700/=. When he was cross-examined by the appellant, he stated that he owned the land which he acquired legally. He was aware that there were wrangles between 2 clans over the land but eventually, the land was registered in his name. He stated that at the time of the incident, he was at his farm with Benson and Benard. He denied invading the appellant’s home and setting it on fire. 6.PW2 was John Mwenda Njoka who produced the title deed for Mbeere/Kiambere/4662 as P.Exb4 which land he had bought from PW1. He stated that PW1 called to inform him that some men had come to his land and they had burned his fence. He was not surprised to hear this because relatives of 2 of the appellant’s co accused had told him of the intention to burn farms but they had said that they would spare him since he was their in-law. He saw smoke form PW1’s home and he went to the scene to see what was happening. He took pictures and the area Chief told him that the incident had been reported at the police station. The Chief said that he had also warned the culprits. 7.He said that the he had conducted a search before purchasing the land and was unaware of any unlawful claim by PW1. He denied allegations that the land was sold to him by a cartel or that he conspired with PW1 to grab land. He maintained that eyewitnesses placed the accused at the scene and confirmed remnants of K‑apple planted along the fence. He acknowledged lacking fingerprint evidence but insisted the accused was among those who burnt the fence and was arrested at home. He rejected claims of luring or transporting people to invade the land prior to the incident. 8.PW3 was Ezekiel Maganda Ndaru, a forester at KFS. He stated that he assessed the damage caused on parcel number Kiambere/Kiambere/4663. He stated that a k-apple fence grown by the 1st complainant was worth Kshs.69,400/= for the seedlings, Kshs.69,400/= for labour, Kshs.69,400/= for planting the fence, Kshs.40,000/= for transportation of the seedlings. He charged Kshs.6,500/= for his transport to the scene. Total damage was estimated at Kshs.254,700/= and he produced his report stating as much. He also produced a report by his colleague who had assessed the damage to the 2nd complainant’s land. The report stated that the damage on the 2nd complainant’s land was valued at Kshs.130,000/=. 9.On cross-examination by the appellant, he confirmed knowing the land parcels but denied awareness of disputes or cancellation of titles. He acknowledged that the seedlings were planted and later burnt but said he was not involved in procuring the seedlings. He admitted not checking invoices or receipts. He rejected allegations of fabrication, stating that no seedlings or holes were visible at the site, explaining that holes may have been filled and that K‑apple requires shallow planting. He added that nearby homesteads exist and K‑apple can grow even in forests. 10.PW4 was Benson Kariuki Nyaga. He stated that on the day of the incident, he was with PW1 when they were approached by a group of 7 men including the appellant. The men ordered them to leave the land, claiming it did not belong to them or their employer and they obliged. He observed Simon Ngari carrying a matchbox and cartons, and Jeff Murimi with a jerrican. From a distance, he saw Ngari ignite the fence with fire, assisted by others using cartons. The witness stated that half the fence was burnt by the time they left, and later the entire fence and adjoining ones were destroyed. 11.He stated that the K‑apple seedlings were completely burnt, and the matter was reported to the chief and police. On cross-examination by the appellant, he stated that he mentioned seven suspects in his statement but denied omitting Nguyu Makothe, his father, to conceal wrongdoing. He asserted that Geoffrey carried a jerrican with fuel and the accused had a matchbox, though he admitted the matchbox was not recorded in his statement. He rejected claims that the fire was lit after women screamed or that the accused was absent from the scene. He conceded that he did not photograph him there. 12.He confirmed recording his statement in February 2023, but noted discrepancies in the dates. He denied knowledge of reports made at Mutuobare or Kiritiri, and stated that they did not repair the fence. He dismissed allegations of later erecting barbed wire or creating a path to residences. Finally, he said he was unaware of any pending land cases, including Misc. ELC Application No.25/2013 before Kerugoya court. 13.PW5 was Godfrey Ndaru. He stated that he was at Nyambura’s farm near PW1’s farm with other people when some men, including the appellant came to PW1’s farm carrying a white jerrycan, pangas and sticks. The man carrying the jerrycan was Nyaga and he poured fuel on the fence as Simon followed him and set a fire where he had poured fuel on the fence. His farm was between PW1’s and the 2nd complainant’s farm, and his fence was also torched. He reported the matter to the police together with his neighbours whose fences had been burned. On cross-examination by the appellant, he admitted selling land to Nyambura but firmly denied that it belonged to the complainant or that they had gone to evict him for Nyambura’s possession. He rejected claims of invasion, insisting that the complainant’s screams were unfounded. He clarified that although his statement placed him at Njoka’s, he was actually at Nyambura’s, and that he was testifying for Njoka. He confirmed the fire was lit using matchsticks, cartons, and fuel. 14.PW6 was Benard Nthiga Njoka who stated that he was with Leonard Ngoci and Geoffrey Ndaru putting up a fence when a group of people including the appellant came and commanded them to leave the land since it wasn’t theirs. He stated that they left and the men, who were not armed, started demolishing the fence. They shared out pieces of carton amongst themselves and then set the fence on fire as one of them threw petrol on the fence. He stated that the men also went to John Mwendwa’s land which was some distance away past empty pieces of land. That they burned John’s, Nyambura’s and Leonard’s fences and the incident was reported to the police. On cross-examination, he denied that he was lying in order to implicate the appellant. He also did not know that the chief had been called because of the invasion. 15.PW7 was Solomon Murimi Mbugi, the area Chief. He stated that Mugo called to inform him that while he was at Nyambura’s place, a group of men including the appellant had come and burned down the fence. Out of apprehension, he called the OCS Kiritiri Police Station who advised him to call Mutuobare police station which was closer to the scene. He went to the scene where he found the fences burned as reported and he took photos of the scene. He saw the accused persons leaving the scene on motor cycles. The fire had consumed a big area but only 2 people complained. 16.On cross-examination, he denied that the appellant had called him earlier seeking help. That Mugo Gaconi is not a witness and that he knew about the land dispute whose subject was the lands. He stated that he had intended to encourage the conflicting parties to resolve the land dispute through ADR. He did not see k-apple at the scene because it could have already been consumed by fire. He rejected claims that the complainant was frivolous or had made repeated reports to authorities. 17.He confirmed never receiving summons from the Land Disputes Tribunal but noted that Nyambura, through his office, had sought surveyor assistance for boundary subdivision. He explained that the surveyor declined to proceed after being advised that other interested parties had not been invited. He affirmed seeing the accused clearly on the land. Finally, he said he was unaware whether the complainants bought land during ongoing court proceedings, or of the outcomes of those cases. 18.PW8 was PC Eric Miriti of Kiritiri Police Station, the investigating officer. He produced photographs of the scene together with the relevant certificate of electronic evidence. He verified the title deeds of the land in question and recorded statements by eye witnesses. In connection with the offence, the appellant and his co-accused were arrested and charged. On cross-examination, he stated that by the time he visited the scene, the fire had gone out but the damage was visible. That identification parades were not necessary because the appellant and his co-accused had been seen and were known. 19.In his defense as DW11, the appellant denied ever being at the scene that day. He explained that the charges stemmed from an ongoing land dispute, noting repeated police summons initiated by the complainants. He referred to letters from the DCI and Land Registrar regarding reconciliation efforts. On the material date, he said, he recounted tethering cows when a vehicle arrived, and dropped several individuals near his homestead. After initially ignoring them, he later heard slashing and cutting sounds and saw the complainants felling trees along his fence, piling them, and setting them on fire. He stated that they threatened to return and burn his structures. He described calling security personnel without success, then hearing his mother cry out. On rushing outside, he found her surrounded by people armed with pangas and jembes, holding a burning beam. The fire was spreading towards his home but they managed to control it. On cross-examination, he stated that he had alibi witnesses to prove that he was at home between 6am and 6pm on the day of the incident. 20.DW12 was Lydia Muthoni Nguyu who stated that the appellant was out tethering cows and when he returned, he told her that he had seen some people outside the gate. Her labourer also told her the same thing and soon, they heard trees being felled. She went outside to check and found that the fence had been destroyed and the people were now heading towards her home. The people set the fence on fire, prompting her to call the Chief but he did not come. The fire was spreading very fact and they only concentrated on putting it out near their home. On cross-examination, she stated that when the appellant went to tether the cows, he did not take very long. After the incident occurred, she said, she did not make a report but sent the appellant to go and report. 21.DW13 was Elizabeth Ngoca who works at DW12’s home. She stated that she saw many people gathered outside the home and there was commotion. Her employer told her that a fire had been lit on the fence and they started fighting the fire. People gathered and helped to put out the fire. On cross-examination, she stated that the appellant was repairing the cowshed near his home at the time of the incident. Parties’ Submissions 22.In his submissions, the appellant stated that he was implicated because of a land dispute pending before Kerugoya High Court. He stated that when the area Chief reported the matter to the police, he was referred to another police station, an indication that the police failed to investigate the matter conclusively before implicating him. He relied on the cases of Okeno v Republic [1972] EA 32 and S v Mokoena (A20/2024; R18/2024) [2025] ZAFSHC 26 and urged the court to re-examine the evidence. He also relied on the cases of Kipkering Arap Koske & Another (1949) 1 EACA 135, S v Blom 1939AD 188 and Ndungu Kimanyi v Republic 1979 KLR) and argued that circumstantial evidence available was not sufficient to sustain a conviction. 23.That the evidence adduced was not corroborated as provided under section 124 of the Evidence Act, hence it was not credible. According to him, the investigation of the matter was rushed, incomplete and it failed to implicate him. That even though his alibi evidence was dismissed, the same was credible and, in that regard, the trial court erred. He stated that the prosecution’s evidence was mostly contradictory thus it lacked credibility and he relied on the cases of Kenga v republic (1979) KLR 212 and Ndung'u Kimanyi v Republic 1979 KLR 283. He cited the elements of the offence as provided under section 339(1) of the Penal Code and urged the court to allow his appeal. 24.The respondent relied on section 339(1) of the Penal Code and the case of Wilson Gathungu Chuchu v Republic [2018] KEHC 9710 (KLR). It argued that its evidence proved that the complainants were the owners of the properties that were damaged, and that the damage was occasioned by the appellant among others. That the appellant’s defense was dismissed after the trail court considered all relevant factors. It relied on the cases of Republic v Mili [2024] KEHC 14858 (KLR) and Republic v Sukha Singh s/o Wazer Singh & others (1939) 6 EACA 145 and argued that the appellant’s alibi defenses were raised too late in the day. It defended the trial court’s findings on sentence and relied on the case of Bernard Kimani Gacheru v Republic [2002] KECA 94 (KLR). Issue for determination 25.The core issue for determination is whether the prosecution proved the 2 counts against the appellant beyond reasonable doubt. Analysis and Determination 26.This appellate court is tasked with reexamining the evidence adduced at trial and come up with its own findings, keeping in mind the advantage that the trial magistrate had in assessing the witnesses firsthand. This was the holding in the renowned case of Okeno v Republic (supra), where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v R. (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 finding and conclusion; 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] E.A 424.” 27.Section 339(1) of the Penal Code provides 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.” 28.For this offence to stand, the prosecution is required to prove two things beyond reasonable doubt: First, that the complainants are the owners of the property which was damaged unlawfully; and Second, that the damage was caused by the appellant. 29.PW1 and PW2 are the complainants in this case. They both produced ownership documents of the properties in question in the form of title deeds. The title deeds are prima facie proof of ownership of the properties in issue in this case. 30.The I.O produced photographs to show that the fences were burned down. PW1 stated that the appellant, being a part of a larger group, went to his farm and demanded that he and his workers leave the land as it did not belong to them. The group of people burned down the fence, fueling the fire with petrol which they had in a jerrycan. The fire from PW1’s farm spread to the home of PW2 who had purchased his land from PW1. The appellant stated that the land bought by PW1 is the subject of a land case that is ongoing in Kerugoya. He even stated that PW1 had attacked him earlier and had tried to burn down his home. 31.DW3, DW4, DW5 and DW6 gave similar evidence about the Appellent being at DW4’s farm ploughing. The all admitted that they did not give this information to the police and that the alibi was being raised for the first time. All six accused persons in the case at the lower court raised an alibi, alleging they were not present at the scene. 32.The learned trial magistrate considered the alibis and dismissed them at page 8 - 9 of his judgement. He dismissed the alibis on the grounds that they were afterthought, were not raised either during investigations or during cross examination during the prosecution case. He relied on R v Sukha Singh S/o Wazer Singh & Ors (1939) 6 EACA 145 and Ricky Ganda v The state [2012] ZAFSHC 59 cases on the threshold for acceptance of an alibi. 33.In their testimonies, PW1, PW2, PW4, PW5, PW6 and PW7 all testified that they saw the appellant at the scene with his co-accused. Hence, they placed him at the scene committing the offence. This evidence demonstrates beyond reasonable doubt that the appellant was at the scene of crime and did indeed commit the offence under section 339(1) of the Penal Code. 34.The appellant was convicted and sentenced to 2 years imprisonment on each count, the sentences running consecutively. In law and under the Judiciary Sentencing Policy Guidelines 2023, a trial court is vested with the discretion to pronounce how multiple sentences should run. The Guidelines provide as follows:“ 2.3.21 Notwithstanding the provisions under the Criminal Procedure Code and the Penal Code summarized in paragraph 2.3.4 above, the discretion to impose concurrent or consecutive sentences lies with the court. There are two elements to the concept of totality, and these apply as much to terms of imprisonment as they do to community service and fines.” Emphasis added 35.The trial court noted that the punishment provided in law for this offence is imprisonment for 5 years. The trial Magistrate, correctly, went on to consider mitigation and the aggravating factors which are that the appellant was a repeat offender. Considering all these, he sentenced the appellant to 2 years imprisonment on each count, sentences running concurrently and without the option of a fine, which was lawful. Conclusion and Disposition 36.From the foregoing, it is clear that the trial magistrate clearly exercised his discretion during sentencing. In my view, the sentence is fair and just and there is no basis for interfering with it. 37.Accordingly, the appeal is hereby dismissed in its entirety. The conviction and sentence are hereby upheld. 38.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 3TH DAY OF JUNE, 2026. _________________ R. MWONGOJUDGEDelivered in the presence of:1. Appellant present in Court2. Ms. Mwaniki for the Respondent3. Francis Munyao - Court Assistant