https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/610

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E1724 OF 2024** **REPUBLIC…………………………………………………………………………………DPP** **VERSUS** **PATRICK WAFULA KABURU………...……..………………………..ACCUSED PERSON** **JUDGMENT** 1. Patrick Wafula Kaburu (“the Accused Person”) was arraigned on 18th March 2025 when the prosecution called upon him to plead to a charge of destroying crops of cultivated produce contrary to section 334 (a) of the Penal Code. 2. The particulars of the charge were that: *On the 01st day of December 2024 at Khwamulati area in Kimilili Sub-County within Bungoma County the Accused Person willfully and unlawfully destroyed crop of cultivated produce namely sugarcane valued Kshs. 1,584,000/= the property of Wilson Masungo Nkichabe.* 1. The Accused Person denied the charge facing him, thereby setting the stage for the prosecution to prove its case beyond reasonable doubt. The summary of the evidence placed before this court is set out below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Wilson Masungo Nkichabe** recalled that sometime in January 2024, he instructed his wife (PW2) to look for a parcel of land for sugarcane farming. His father-in-law (PW4) later informed them that the Accused Person was offering a 21/2 acre of land for lease. 2. He accompanied PW2, PW3 and PW5 to the Accused Person’s home in Kimlili where they executed a land lease agreement dated 03rd February 2024 for the lease of the Accused Person’s 21/2 acres of land at a consideration of Kshs. 145,000/=. He thereafter ploughed the land and planted sugarcane 3. The Accused Person called him a month after the execution of the land lease agreement proposing to refund him Kshs. 145,000/= since he had found a better offer for the lease of the land. He declined the Accused Person’s offer only for PW3 to inform PW2 later that the Accused Person had ploughed and destroyed his sugarcane. He thereafter reported this incident to the police for necessary action. 4. He stated in cross-examination that Chief Benjamin confirmed that the land the Accused Person leased him belonged to him. 5. **PW2 Maurine Nanjala Nyongesa** is the complainant’s wife. Her testimony was that she witnessed the land lease agreement between PW1 and the Accused Person. They ploughed the land and planted maize and sugarcane. 6. She added that the difference arose between PW1 and the Accused Person when the Accused Person demanded an extra Kshs. 24,000/= from PW1 when the Accused Person reportedly received a better offer for the lease of the land PW1 had leased from him. 7. She later requested PW3 to visit the land when PW3 found that the land PW1 had leased from the Accused Person had been ploughed and the crops planted thereon destroyed. She also visited the parcel of land and confirmed the damage to the crops she had planted on the Accused Person’s land. She reported the matter to the police 8. She also accompanied the agriculture officer (PW6) to the Accused Person’s land for assessment of the damage to the crops. 9. She reiterated in cross-examination that the land she planted sugarcane on the land which was shown to her by the Accused Person 10. **PW3 Peter Omari Webi** testified that on 01st November 2024 at around 0900hrs, he passed near the Accused Person’s land when he saw a tractor ploughing the sugarcane land. He later came to learn that the complainant had leased the land in question from the Accused Person. 11. He added in cross-examination that the Accused Person was his neighbour since they live about 1 – 2 kilometres apart. 12. **PW4 Nyongesa Kiberenge** stated that he witnessed a land lease agreement between PW1 and the Accused Person on 03rd February 2024 for the lease of 21/2 acres of land for sugarcane farming. He added that the complainant and PW2 planted sugarcane on that parcel on 15th April 2024 only for the Accused Person to plough and destroy the sugarcane on 04th November 2024. 13. In cross-examination, he stated that PW3 was the one who informed him that he saw the Accused Person supervising the destruction of PW1’s sugarcane. 14. **PW5 Fashion Simiyu Nakutwa** recalled that on 03rd February 2024, he accompanied PW1 to Khwamulati village to lease land from the Accused Person. He further stated that PW2 and PW4 accompanied them to the Accused Person’s home that day. He prepared the land lease agreement executed by PW1 and the Accused Person after the Accused Person had shown him the parcel of land’s title deed. 15. PW1 later told him that the Accused Person had ploughed and destroyed the sugarcane he PW1 had planted on the Accused Person’s land. 16. **PW6 Simon Mukhebi** testified that on 01st November 2024, while on his way to Khwamulati market, he saw a tractor ploughing PW4’s sugarcane under the Accused Person’s supervision. 17. He passed by the land that evening while going back home when he found PW4 at the land when PW4 told him that the sugarcane the Accused Person had ploughed on that land belonged to his son -in -law (PW5). 18. He added in cross-examination that the Accused Person was known to him by physical appearance before the date of the incident. He maintained that the Accused Person was present at the farm when the tractor was destroying PW1’s sugarcane. He further stated that he even greeted the Accused Person on the date of the incident. 19. **PW7 George Simiyu Mwembe** is an agriculture extension officer in Kimilili ward. His testimony was that on 06th November 2024, police officers from Kimilili Police Station requested him to assess damage to the complainant’s crops. He visited the scene of crime on 07th November 2024 and prepared a report to that effect. He assessed the damage to the complainant’s sugarcane at Kshs. 1,584,000/=. 20. He produced the police requisition letter dated 07th November 2024 and the Agricultural report dated 07th November 2024 as exhibits. 21. He conceded on cross-examination that his valuation report did not state the land parcel number he visited to assess crop damage. 22. **PW8 Benjamin Natembeya Lusweti** is the Assistant Chief of Namawanga Sub-Location. His testimony was that on 03rd December 2024, while acting as the area chief, he accompanied PW2 to Khwamulati village, where PW2 wanted to lease land parcel number Kimilili/Kimilili/85 for sugarcane farming from the Accused Person. 23. In cross-examination, he added that he accompanied PW2 to the Accused Person’s home to identify the Accused Person before the execution of the land lease agreement. 24. **PW9 No. 119093 PC Geoffrey Onyancha** of DCI Kimilili investigated this case. His testimony was that the DCIO Kimilili instructed him on 18th November 2024 to investigate this case, which had been reported vide OB. No. 26/06/11/2024. He recorded witness statements and collected evidence, including photos showing the Accused Person receiving money from PW1 on the date the land lease agreement was executed. 25. His investigations revealed that PW1 leased land parcel number Kimilili/Kimilili/85 from the Accused Person, where PW1 planted sugarcane only for the Accused to uproot the sugarcane on 01st November 2024. 26. He produced the said photos, scene photos, certificates of print, exhibit memo form dated 24th November 2024, copies of the Accused Person’s land green card, the complainant’s bank statement for the period in question, and the land lease agreement dated 03rd February 2024 as exhibits. He added that PW8 visited the parcel of land in question and assessed damage to PW1’s sugarcane at Kshs. 1,584,000/=. 27. In cross-examination, he stated that he took the scene photos when he visited the scene. **Accused Person’s Case** 1. After the close of the prosecution's case, this court delivered a ruling on 09th February 2026 when the Accused Person was placed on his defence. 2. Directions under section 211 of the Criminal Procedure Code were taken in Kiswahili in the presence of the Accused Person when the Accused Person elected to give unsworn testimony and call four witnesses. 3. This matter was thereafter fixed for defence hearing on 09th February 2026. However, the Accused Person absconded after that, prompting this court to issue warrants of arrest against the Accused Person. The Accused was thereafter re-arrested on 06th May 2026, and the matter was fixed for defence hearing on 10th June 2026. 4. On 10th June 2026, the Accused Person elected to remain silent per Article 50 (2) (i) of the Constitution. 5. It is given that where an Accused Person elects to remain silent, the court is still obligated to determine whether the prosecution proved its case against the Accused Person beyond reasonable doubt. This court draws inspiration from **David Ochieng Aketch vs Republic [2015] eKLR**, where the court observed that; *“The Appellant on being put on his defence he opted to keep quiet. The right to keep quiet is a constitution right enshrined in Article 50 (2) (1) of the Constitution of Kenya 2010. It is one of the components of a fair trial neither should failure to testify be taken as an admission of guilty on an accused part. The trial Court is under a duty in such situation to evaluate the prosecution’s evidence and ensure that the prosecution has proved its case beyond any reasonable doubts…”* 1. Be that as it may, whereas this court is well aware that an Accused Person is not under a duty to prove their innocence, this court doubts the wisdom of an Accused Person who elects to remain silent after a court has made a finding that such an Accused Person has a case to answer. This court’s view on this matter is informed by the definition of a prima-facie case, which loosely translates to a case which the court or tribunal properly directing itself on law and fact will convict an Accused Person if an Accused Person fails to give an explanation to rebut the prima-facie case established against them. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record, as well as the 2nd Accused Person's written submissions. It is this court’s considered view that the issues for determination are: 2. *Whether this case is an abuse of prosecutorial powers* 3. *Whether the prosecution proved its case against the Accused Person beyond reasonable doubt* ***Whether this case is an abuse of prosecutorial powers*** 1. The Accused Person submitted in his written submissions that, in view of the fact that the complainant had filed against him a civil case, Kimilili ELC Civil Case No. E044 of 2025, the instant case was meant to advance the complainant’s pending civil case against him at Kimilili Law Courts. He cited **Republic v Chief Magistrates Court Mombasa Ex-Parte Ganijee and Another (2020) 2 KLR 703** for the position that criminal investigations or criminal charge or prosecution to help individuals in their advancement or frustrations of their civil cases is an abuse of the court process. He submitted that criminal charges like this, meant to achieve ulterior purposes, must be put to a halt. 2. What this court gathers from the Accused Person’s submission is that the Accused Person was urging this court to quash the DPP’s decision to charge him in this case since his prosecution is reportedly meant to achieve an ulterior motive for the complainant to steal a march against him in the civil case between them in Kimilili. 3. A magistrate’s court cannot second-guess the DPP’s decision to charge an Accused Person. A magistrate’s court’s duty when an Accused Person is arraigned is to determine whether or not the prosecution has proved its case against the Accused Person beyond reasonable doubt, or in some instances, to determine whether the charge is defective. Where an Accused Person wants to question or challenge the DPP’s decision to charge him, such an Accused Person is required to move the High Court appropriately. 4. Allegations regarding abuse of prosecutorial powers are usually determined by the High Court in the exercise of its supervisory powers over administrative bodies, including the DPP per Article 165 of the Constitution. This court lacks such powers. 5. In any event, the law in this jurisdiction is that a pending civil case is not a bar to criminal proceedings arising from the same set of facts giving rise to the criminal case. This was well explained in **Tatu City Limited & another v Rosemary Wanja Mwangiru & 4 others [2019] KECA 764 (KLR),** where the Court of Appeal rendered itself thus: *“This finally brings us to the question of whether the learned Judge misdirected herself on the law. The beginning point of our analysis is a reaffirmation that the mere co-existence of criminal and civil claims cannot be a justification for a court to halt the criminal proceedings. Indeed, it is axiomatic that many disputes often traverse various fields of law so that it is possible to have a dispute touching on the law of contract, implicate constitutional questions and also reveal the commission of a criminal offence. If any doubt should linger about such contemporaneous processes, they are dispelled by***section 193A***of the Criminal Procedure Code in express terms;* **“Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.”** *It is a wonder that despite such clear statutory direction, persons charged with criminal offences are quite adept at making out cases of abuse of process or the pursuit of collateral aims in a criminal prosecution based only, it would seem, on the mere existence of a civil dispute, between the parties. The existence of a civil dispute by statutory pronouncement as well as an appreciation of the nature of legal disputes, should not of itself be a basis for injuncting or delaying the criminal proceedings. Were that the case, its pernicious and deleterious effects would be clear to see. Criminal suspects would stand immunized from prosecution by the mere subterfuge of filing a civil case or two against the potential or actual criminal complainants Ochieng, J. well-appreciated this human propensity when in his ruling in this very matter granting leave but rejecting the plea that such leave operate as a stay, which we quote at length in affirmation, delivered himself thus;* “By dint of section 193A of the Criminal Procedure Code, the fact that there was an ongoing criminal case in which the matters in issue were also directly or substantially in issue in a pending civil case, shall not be a ground for any stay, prohibition or delay of the criminal proceedings. One or another party to a civil dispute may commit an offence of a criminal nature. If that were to happen, there would be no justification, in law, to stop the police from carrying out investigations into the alleged criminal offences. And if the investigations revealed that a criminal offence had been committed, the police would be required by law, to prefer criminal charges against the person concerned. If the existence of civil disputes were to act as a bar against the institution of criminal charges simply because the alleged offence arose from facts which were also directly or substantially in issue in the civil proceedings, suspects would need only to rush to the civil courts if they wanted toput on hold any potential criminal charges. It is such an action which would, in my considered view, be deemed as an abuse of court process. On the other hand, a suspect should find comfort in the fact that unlike in civil proceedings where the standard of proof is on a balance of probabilities, in the criminal case, the prosecution would have to tender proof beyond any reasonable doubt.” 1. Guided by the authority above and by dint of section 193A of the Criminal Procedure Code, and in the absence of a High Court order to discontinue this criminal case or prohibiting the DPP from charging the Accused Person over this charge, the criminal charge facing the Accused Person herein is properly before this court. In the circumstances, this court declines the Accused Person’s invitation to halt this case on account of alleged abuse of prosecutorial powers by the DPP. ***Whether the prosecution proved their case against the Accused Person beyond reasonable doubt*** 1. This court now proceeds to determine whether the prosecution proved the charge facing the Accused Person beyond reasonable doubt. 2. Section 334 (a) of the Penal Code sets out the offence facing the Accused Person in the following terms: *334. Any person who willfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently injures -* *(a) a crop of cultivated produce, whether standing, picked or cut….* *is guilty of a felony and is liable to imprisonment for fourteen years.* 1. In **Republic v Christopher Bwanga [2019] KEHC 5081 (KLR),** the court set out the ingredients of the offence herein as follows: *“The ingredients of the offence of destroying a crop of cultivated produce are:-* *(i) evidence of destruction of a crop of cultivated produce.* *(ii) whether the act was wilful and unlawful.* *(iii) whether the crop belonged to the complainant.”* 1. The provisions of the law reproduced above show that the ingredients of the offence herein are: the evidence of destruction of a crop; the destruction of the crop must be willful and unlawful; the crops destroyed must have been under cultivation; the crops destroyed must have belonged to the complainant; and the Accused Person must have been the one who destroyed the complainant’s crops. 2. This court proceeds to consider the ingredients of the offence herein sequentially. 3. ***Whether there was destruction of a crop/sugarcane*** 4. The unimpeached oral testimonies by the prosecution witnesses, when read together with the scene photos and Agricultural Crop Damage Report dated 07th November 2024, proved beyond reasonable doubt that there was destruction of sugarcane on the date of the incident. 5. ***Whether the destruction of the crop/sugarcane was willful and unlawful*** 6. As to whether the destruction was willful and unlawful, the Black’s Law Dictionary defines willful as follows: *“‘Willful’ means proceeding from a conscious motion of the will; intending the result which actually comes to pass; designed; intentional; malicious…”* 1. Simply put, a willful act is an intentional act as opposed to an accidental or involuntary act. 2. There is also nothing on record to suggest that whoever destroyed the sugarcane herein was forced to destroy the said sugarcane. Therefore, it follows that the destruction of the sugarcane herein was done consciously by whoever destroyed the said sugarcane. 3. The fact that the destruction of the sugarcane led to the complainant reporting this case to the police against the Accused Person shows that the sugarcane herein was destroyed without the complainant’s authority. 4. In the circumstances, this court finds and holds that the prosecution proved beyond reasonable doubt that the destruction of the sugarcane herein was willful and unlawful. 5. ***Whether the destroyed crop/sugarcane was under cultivation*** 6. All the prosecution witnesses testified that the sugarcane destroyed on the date of the incident was planted by PW1 after leasing land from the Accused Person. The Accused Person did not impeach the said evidence. 7. The Court of Appeal in **James Manyoni Nyachuba v Republic [2011] KECA 73 (KLR)** defined “cultivation” as follows: *“As regards the ground relating to cultivation we consider it a valid ground in law in that under the section creating the offence, the standing trees must have been under cultivation. The Concise Oxford English Dictionary states that “cultivate”**includes raise or grow plants especially on a large scale****.****Consequently, since the blue gum trees were grown by the owner, the ingredient of cultivation was present in the circumstances.”* 1. A reading of the authority above shows that for crops to be deemed to have been under cultivation, the said crops must have been raised or grown by the owner or the complainant. 2. Given the uncontroverted evidence on record that PW1 planted the destroyed sugarcane, it follows that the logical and inevitable conclusion to be drawn is that the sugarcane in question was under cultivation. 3. ***Whether the destroyed crop/sugarcane belonged to the complainant*** 4. The prosecution witnesses were all in agreement that the destroyed sugarcane belonged to the complainant. In the absence of evidence by any other person, other than the complainant, claiming ownership of the destroyed sugarcane, this court finds and holds that the complainant’s ownership of the destroyed sugarcane was proved beyond reasonable doubt. 5. ***Whether the Accused Person destroyed the complainant’s crop/sugarcane*** 6. PW3 and PW6, who are persons who know the Accused Person, testified that they saw the Accused Person in the shamba in question supervising the destruction of the complainant’s sugarcane by a tractor. It should also be remembered that the incident happened during the day when the question of mistaken identity cannot arise. Their evidence that the Accused Person supervised the complainant’s sugarcane destruction by the tractor remained cogent even after cross-examination. 7. Further, this court had the benefit of observing PW3 and PW6's demeanour when they testified before this court. They were credible, believable, and truthful witnesses. This court finds no reason to doubt their testimony on the Accused Person’s presence at the scene of crime on the date of the incident. 8. In any event, nothing on record suggests that PW3 and PW6 harboured any grudge against the Accused Person for them to come up with trumped up charges against the Accused Person. 9. It is given that the Accused Person was not the one who was driving the tractor that destroyed the complainant’s sugarcane on the date of the incident. Does that make the Accused Person innocent? The answer to this question is simple: the Accused Person, being aware that the tractor was destroying the complainant’s sugarcane, had a duty to stop the destruction if at all he was not complicit in the destruction. 10. The Accused Person having failed to stop the destruction of the complainant’s sugarcane on the date of the incident shows that the destruction of the sugarcane was with his authority and was done under his supervision. 11. Section 20 of the Penal Code defines principal offenders as follows: *Principal Offenders* *(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—* *(a) every person who actually does the act or makes the omission which constitutes the offence;* *(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;* *(c) every person who aids or abets another person in committing the offence;* *(d) any person who counsels or procures any other person to commit the offence, and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.* *(2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. (Emphasis added)* 1. This court’s understanding of the provisions of the law above is that any person who does any of the things listed in section 20 (1) (a) – (d) of the Penal Code leading to the commission of a crime is deemed to be said crime’s principal offender or perpetrator. 2. This court has already made a finding that the complainant’s sugarcane was destroyed with the Accused Person’s authority and under the Accused Person’s supervision. In the circumstances, this court is inclined to find that the Accused Person not only procured the tractor driver to commit the offence herein but also aided and abetted the commission of the offence herein per section 20(1)(a), (c), and (d) of the Penal Code. 3. The upshot of the above is that the prosecution proved beyond reasonable doubt that the Accused Persons committed the offence herein. **DETERMINATION** 1. The upshot of the above is that the Accused Person is convicted under section 215 of the Criminal Procedure Code for the offence of cutting down trees contrary to section 334 (a) of the Penal Code. 2. It is so ordered. **Judgment read, signed, and delivered in open Court at Bungoma, this 29th day of June 2026** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Ms. Achieng and Ms. Mulwa for the ODPP Mr. Onkangi h/b for Mr. Wayongo for the complainant Accused Person C/A: Mr. Rioba