https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/378

Republic v Ludasia & 3 others (Criminal Case E207 of 2025) [2026] KEMC 378 (KLR) (22 July 2026) (Judgment) Neutral citation: [2026] KEMC 378 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E207 of 2025 AK Njeru, SRM July 22, 2026 Between Republic Prosecution and Francis Ludasia 1st Accused Gabriel Ojiambo Makokha 2nd Accused Dennis Opiyo Makokha 3rd Accused Godfrey Musungu Makokha 4th Accused Judgment 1.Accused persons have been charged with the offence of malicious damage to property contrary to section 339(1) of the Penal Code. Particulars are that on 7th April 2024 at around 0700hrs at Sinyenye village, Bunyala Sub-County within Busia County, the accused persons willfully and unlawfully damaged a perimeter wall valued at Kshs 41,745, the property of Christopher Ludasia. 2.The accused each denied the charges. Prosecution’s Evidence 3.PW1 Christopher Ludasia Nabwana testified that on 3rd April 2024 he contracted one Arori to build him a perimeter wall. That the said Arori called him and informed him that the construction had been ordered stopped by one Dennis Makokha. On 4th April 2024, as construction continued and he was planting maize, Dennis Makokha, Francis Ludasya Makokha, Godfrey Musuungu, and Gabriel Makookha all arrived and ordered him to stop the construction immediately. He had already been alerted of their arrival earlier by the Area Assistant Chief Augustine. He informed them that he could only stop the construction if a court order was presented to him to that effect. They threatened him with consequences if he continued the construction. On 7/4/24, the contractor informed him that he had already found 5 columns installed to support the bent perimeter wall. He reported the matter to the police. Police arrived at the scene and took photographs of the damaged columns. Only the 4 accused persons opposed the construction, hence the ones who had committed the damage. The accused persons are all his cousins. His property is Bunyala/Bukoma/1547. The Land Registrar, acting on instructions of the accused persons, had visited the parcel of land and already established the boundaries of his parcel of land as per the ruling dated 15/10/2019. He is the registered co- owner of the said land with one Sylvester Kinyundo Ochieng as per the certificate of search dated 14/1/2025, which he produced as Pex no. 2. The estimated cost of the destruction was approximately Kshs 50,000/=. There is indeed a consent to subdivide the land between himself and Sebastian dated 20/4/2017 which is yet to be implemented due to an ongoing land dispute over the said land where he has sued Felix and accused persons herein, which is Port Victoria ELC NO. E011 OF 2025, seeking the Land surveyor to visit the land and establish the boundaries of the said land Bunyala/ Bukoma /1547. Accused persons were arrested in June 2025 yet the offence occurred in 2024. He did not witness any of the accused bend the columns. The photographs were taken 3 different times. He does not know whether the same were subject to a likely vandalism for purposes of sale of scrap metal. The damage is worth Kshs 41,745 as per the receipt. 4.PW2 Rosemary Ochieng, the area Assistant Chief, testified that in the month of April 2024, she received a report of a boundary dispute between the complainant and the accused persons over a parcel of land known as Bunyala/Bukoma/91. The report stated that the complainant was erecting a perimeter wall, and the accused persons asked him to stop and allow the case to be completed. She called the complainant and asked him about the issue, and the complainant demanded a court order stopping the construction by the accused persons. Complainant vowed to continue with the construction. Later, complainant informed her that damage had been done to the columns on the wall. She only saw the bent columns and not destruction of the same. Accused persons are all complainant’s cousins. It’s a common thing to have such destruction due to theft of scrap metal. 5.PW3 John Nyasoko Arori testified that he is a contractor employed by the complainant to build him a perimeter wall. That on 2/4/2024, while working, a man came to him and ordered him to stop the construction. He reported the matter to the complainant, who instructed him to continue with the construction. The following day, as they continued building, 4 men, accused herein, came to them and found them with the complainant. The 4 accused spoke, and the following day they came to the site to find 5 columns bent. Christopher saw the damage and reported the matter to the police. Pictures of the scene were taken. The construction did not proceed. He did not see who bent the columns. He had not secured the boards with a binding wire. That the bars were just bent. None of them was stolen. 6.PW4 254774 PC Athanas Simiyu, the investigating officer. That, following the complainant's report, he summoned the accused persons and enquired whether they had a court order stopping the construction, which none of them had. He then charged them with the offence herein. The columns were damaged through bending. The accused were arrested a year after the alleged incident. The parcel of land is registered in the complainant's name. The CO-Owner did not record his statement. He visited the scene and booked the same vide OB no. 9/30/10/24. From the images, it seems the scene has been tampered with. There was no damage to the perimeter wall itself. Only the columns, which, from the images, some are standing, others are bent. Defence Case 7.DW1 Francis Ludasia Makokha testified that the charges are false. The complainant is their neighbor and relative. His co-accused are all his brothers. The complainant is the neighbor to the 3rd, 2nd and 4th accused. On 5/4/2024, they heard people digging; they went to their father’s land and found the complainant encroaching on it. They reported the matter at the police station vide OB NO. 23/05/04/2024 at 10.22hrs. They requested that the police visit the scene, and the police did so, taking photographs. He produced the certified copy of the OB as Dex no. 3. He further reported the matter to the area chief, who visited the complainant, and the complainant was advised to continue the construction despite our complainant. In June 2025, they were arrested, and the complainant went ahead to file a civil suit alleging trespass on their part. They did not damage the columns. There is an existing boundary dispute between them and the complainant. There is a pending High Court case in which interference with the said boundary has been prohibited. He had no court order stopping the construction of the wall. 8.DW2 Gabriel Ojiambo Makokha, DW3 Gabriel Ojiambo Makokha, DW4 Dennis Opiyo Makokha and DW5 Godfrey Musungu Makokha all associated themselves with the evidence of DW1 in its entirety. 9.The issue for determination is whether the prosecution proved beyond reasonable doubt that the accused persons willfully and unlawfully damaged the complainant's property. 10.Section 339(1) of the Penal Code criminalises the willful and unlawful destruction or damage of another person's property. The prosecution must therefore prove ownership of the property, that damage occurred, and that the accused persons were responsible for causing that damage. 11.There is no dispute that the complainant was one of the registered proprietors of the parcel of land and that some of the steel columns erected for the perimeter wall were found bent. The critical issue is whether the prosecution proved that it was the accused persons who caused that damage. 12.None of the prosecution witnesses witnessed the accused persons bending the columns. The prosecution case is therefore entirely based on circumstantial evidence. In the case, Abanga Alias Onyango vs.v Rep CR A No.32 of 1990(UR) as cited with approval in the case of Mnyonga v Republic [2024] KEHC 15136 (KLR] the Court of Appeal set out the principles to apply in order to determine whether the circumstantial evidence adduced in a case are sufficient to sustain a conviction. The Court of Appeal stated as follows;“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 13.The only circumstances relied upon are that the accused persons had objected to the construction, threatened the complainant and that the columns were later found damaged. 14.Although those circumstances undoubtedly raise suspicion against the accused persons, suspicion, however strong, cannot substitute proof beyond reasonable doubt. Mary Wanjiku Gichira -vs-republic Criminal Appeal No. 17/1995 the Court of Appeal held that“Suspicion, however strong, cannot provide a basis for inferring guilt which must be proved by evidence. Before a court of law can convict an accusedperson ofan offence, it ought to be satisfied that the evidence against him is overwhelming and points to his guilt.” 15.The evidence on record also reveals an existing and active boundary dispute between close relatives. PW2 testified that vandalism of metal structures for purposes of stealing scrap metal was common. PW1 himself admitted he could not rule out such vandalism. PW4 further stated that from the photographs the scene appeared to have been tampered with since the incident. These factors present alternative possibilities that the prosecution did not eliminate. 16.For circumstantial evidence to found a conviction, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. In the present case, that threshold has not been met. The evidence establishes that the accused persons opposed the construction, but it does not establish beyond reasonable doubt that they were the persons who bent the columns. 17.The delay of nearly one year before the accused persons were arrested further weakens the prosecution case, particularly where no additional evidence linking them to the actual damage was obtained during investigations. 18.Further, the complainant admitted that no Court order stopped him from continuing with the construction. He did not explain why he did not just straighten the columns and continue with the construction. It is my considered view that if the accused persons intended to actually damage the wall, they would have gone ahead to bring down the wall already built. None of the witnesses attested to any damage to the wall. 19.Having carefully considered the entire evidence, I find that the prosecution failed to prove beyond reasonable doubt that the accused persons willfully and unlawfully damaged the complainant's property. 20.Accordingly, I find each of the accused persons NOT GUILTY of the offence of malicious damage to property contrary to section 339(1) of the Penal Code and acquit them under section 215 of the Criminal Procedure Code. They are each set at liberty unless otherwise lawfully held. Cash bail for each shall be refunded accordingly.Right of Appeal within 14 days explained.It is so ordered. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 22ND DAY OF JULY 2026.HON. ANNE NJERUSRMIn the presence ofAll the accused persons, their Advocate Mr Otanga,The prosecutor Mr Githinji andThe Court Assistant Mr Masiga.