https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/253

Republic v Adhiambo (Criminal Case E160 of 2025) [2026] KEMC 253 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEMC 253 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E160 of 2025 AK Njeru, SRM June 29, 2026 Between Republic Prosecution and Anjeline Adhiambo Accused Judgment 1.Accused has been charged with the offence of injuring an animal contrary to section 338 of the Penal Code. Particulars are that on the 26th day of April 2025 at about 1400hrs at Makunda area in Bunyala Sub County within Busia County, accused willfully and unlawfully wounded an animal capable of being stolen namely a cow valued at Kshs 36,000 the property of Miliana Atieno. 2.Accused denied the charge and the prosecution presented its evidence as follows: 3.PW1 Vincent Opiyo Kanoti testified that on 26th April 2025, he went to withdraw some money from an Mpesa Shop and while on his way, there were cows being herded along the way. He saw one cow, brownish in colour go ahead of the rest of the heard and stray onto a shamba along the road. Inside that shamba there was a woman ploughing with a jembe. He saw the woman lift the jembe and hit the cow. The cow tried to join the rest on the road but fell alongside the road. He informed the herdsman of what he had seen and went his way. The herdsman knew him well having seen him severally. Complainant, led by the herdsman found him and requested him to record a statement with the police. Accused was the one that hit the cow. He had seen her severally in that shamba. 4.PW2 Regina Khatono, a business lady testified that on the material date, she received a call from her daughter Pauline informing her that her cow lay alongside the road, unable to move. She rushed to the scene at round 6.00pm and confirmed the same. a close look at the cow, the same had an injury on its back. she reported the matter to the village elder (Ligulu). She asked around and was informed that accused was the one who had inflicted the injury. In the company of her children, she went to accused’s house the same day at around 8.00pm and found her with her husband to try and discuss over the matter. The following day, she asked accused to accompany her to see the vetinary doctor so as to determine how to treat the cow at her expense. Accused had pledged to meet the costs of treatment. The cow was in the same position they had left it the previous day. It eventually died after 4 days. Accused is her fellow church member and neighbor hence well known to her. Accused has never paid her for the loss of her cow. The cow is in the images in he pictures before court today. Accused had planted maize on her shamba. She moved the cow near the road. The cow died from the injury inflicted upon it by accused herein. 5.PW3 Mathew Wanyama, a vetinary officer registration number 19813577 working at Bunyala area stated that on the 28th April 2025, Milliana Akello his daughter informed him that a cow had been injured. He headed to the place where the cow was which was along the road next to a shamba. He found the cow and on examination, the same had a cut on its back next to the tail. The probable type of weapon used to inflict the injury was a sharp -panga like object. The cow had bled a lot from the cut and lay on the ground, unable to move an inch. He administered tetracycline painkiller to ease its pain and advised the owner to report the matter to the police. The backbone had a clear fracture. He wrote his report. The image does not show the injury as the cow was laying on the injured part which is the left side of its back. he produced his report as Pex no. 2. 6.PW4 116706 PC Betty Cheronges, the investigating officer stated that the matter was reported at Port Victoria Police station on 25/4/2025 and minute to her to investigate. The reported stated that on the same day around 5.00pm she was informed by her daughter that her cow had been injured and lay beside the road next to parcel of land. They headed to the scene and found the animal injured on its back and on asking around, they were informed accused was the one who had inflicted the injury on the cow’s back. she visited the scene, took photographs of the injured cow which had now been moved next to the road to avoid obstruction. Later she presented the pictures for certification and produced them in court as Pex no. 1. She produced the certificate thereto as Pex no. 2. Accused’s land had maize and tomatoes. The cow had a visible injury on its back. they were informed the weapon used by accused to inflict the injury was a jembe. A witness saw accused inflict the injury. 7.PW5 Milliana Akello on 26/4/2025, her sister Regina called her and informed her that her cown had been injured and was laying on the ground. Regina informed her that the cow had strayed onto the nearby shamba and the owner had injured it. she visited the scene and indeed found her cow laying n the ground unable to move. They reported the matter to the village elder. Later they visited accused’s home and when accused saw the cow, she was in disbelief at the severity of the injury. Accused admitted hitting the cow with a jembe which she was using to plough the farm. The cow had a calf. The injury was so severe that the cow ended up dying. The calf was unable to cope and died as well. The vetinary officer had examined and treated the cow but the same succumbed to the injury. Accused failed to pay the value of the cow despite agreeing to settle the amount. 8.Accused was found with a case to answer and placed on her defense. Her evidence in defense was as follows: 9.DW1 Anjeline Adhiambo testified that she understood the charges against her. That she only got to know accused when this matter was instituted. On 26/4/2025 at around 3.00pm, she was in her farm which is next to the road and stayed on until around 6.00pm. That the eye witness who alleged to have seen her injure the cow lied in his testimony as he did not even live nearby. She saw people as she left the farm. She did not injure the animal. The witness is not known to her so he had no reason to frame her for this offence. Analysis and Determination 10.The accused is charged with the offence of injuring an animal contrary to section 338 of the Penal Code. The prosecution bears the burden of proving the charge beyond reasonable doubt. The ingredients of the offence are that:a.The animal was capable of being stolen and belonged to another person;b.The animal was wounded, maimed, disabled or otherwise injured;c.The injury was inflicted willfully and unlawfully by the accused. 11.There is no dispute that the cow in question belonged to PW5, Milliana Akello. PW2 and PW5 both testified that the cow was theirs and had strayed into a nearby farm. The evidence of PW3, the veterinary officer, confirmed that the animal had sustained a serious injury on its back resulting in a fracture of the backbone. The cow later died from the injuries. The court is therefore satisfied that the animal was injured and was capable of being stolen within the meaning of the law. 12.The central issue is whether it was the accused who inflicted the injury upon the cow. 13.PW1 was an eye witness. He testified that while walking from an Mpesa shop, he saw a cow stray into a shamba where a woman was cultivating with a jembe. He saw the woman lift the jembe and hit the cow. The cow thereafter attempted to rejoin the herd but fell beside the road. PW1 positively identified the accused as the person he saw strike the cow. He stated that he had seen her on several previous occasions working in that shamba and therefore knew her before the incident. 14.The court finds PW1 to have been a credible witness. His account was direct, consistent and remained unshaken during cross-examination. He had no apparent grudge against the accused and the accused herself admitted that she did not know him and could not suggest any reason why he would falsely implicate her. 15.The testimony of PW1 was further corroborated by the evidence of PW2 and PW5. Both testified that upon learning of the incident they visited the accused and that the accused admitted having struck the cow with a jembe while working on her farm. PW2 further stated that the accused initially agreed to meet the veterinary expenses. Although the alleged admission was not formally recorded, the evidence of PW2 and PW5 was consistent on this aspect and lends support to the prosecution case. 16.The medical evidence adduced by PW3 established that the cow sustained a severe injury on its back leading to a fractured backbone. While PW3 opined that the injury could have been caused by a sharp object such as a panga, his evidence does not exclude the possibility that a forceful blow from a jembe could have caused the injury. The important point is that the veterinary evidence confirms the existence of a serious traumatic injury consistent with the account given by PW1 that the animal was struck. 17.The defence offered by the accused was a bare denial. She stated that she did not injure the cow and that PW1 was lying. However, she did not provide any explanation as to why PW1, a person unknown to her, would falsely accuse her. Her defence did not dislodge the prosecution evidence nor create any reasonable doubt in the court's mind. 18.The court has carefully considered the entire evidence on record. The evidence of PW1 directly places the accused at the scene and identifies her as the person who struck the cow. His evidence is corroborated by the subsequent conduct of the accused as narrated by PW2 and PW5 and by the veterinary findings of PW3. The defence amounts to a mere denial and does not rebut the prosecution case. 19.The court is therefore satisfied that the prosecution has proved beyond reasonable doubt that the accused willfully and unlawfully injured the complainant's cow, causing the injuries that eventually led to its death. 20.Consequently, the court finds the accused guilty of the offence of injuring an animal contrary to section 338 of the Penal Code and convicts her accordingly under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 29TH DAY OF JUNE 2026HON. ANNE NJERUSRM