Republic v Majimbo (Criminal Case E380 of 2024) [2026] KEMC 390 (KLR) (27 July 2026) (Judgment)

Republic v Majimbo (Criminal Case E380 of 2024) [2026] KEMC 390 (KLR) (27 July 2026) (Judgment) Neutral citation: [2026] KEMC 390 (KLR) Republic of Kenya In the Port Victoria Law Courts Criminal Case E380 of 2024 AK Njeru, SRM July 27, 2026 Between Republic Prosecutor and Fred Majimbo Accused Judgment 1.Accused has been charged with the offence of malicious damage to property contrary to section 339(1) of the Penal Code. Particulars are that on the 6th day of September 2024 at 1100hrs at Munani Village in Bunyala Sub-County within Busia County, the accused willfully and unlawfully demolished a VIP door and pit latrine valued at Kshs 261,585/-, the property of NG-CDF Budalangi. 2.Accused faced a second count of stealing contrary to section 268(1) as read with section 275 of the Penal Code. Particulars are that on the 6th day of September 2024 at about 1100hrs at Munani village, in Bunyala Sub-County within Busia County, the accused stole 8 iron sheets, 15 wooden timbers, and one wooden door from a demolished Munani VIP 6 door latrine, the property of NG-CDF Budalangi 3.Accused faced an alternative charge of handling stolen property contrary to section 322(1)(2) of the Penal Code. Particularly, on the 6th day of September 2024 at about 1100hrs at Munani village, Bunyala Sub-County within Busia County, the accused, other than in the course of stealing, dishonestly retained 8 iron sheets, 15 wooden timbers, and one door, knowing or having reason to believe the same to be stolen property. 4.The accused denied the three counts and the prosecution presented its evidence as follows 5.PW1 Wilfred Wesonga Sidonga, the chairperson CDF Budalangi, testified that on 8/9/2024, he received a call from one Teresa Opiyo informing him that the area Assistant Chief had ordered the toilet demolished. He sent one Bernard Kayamba who confirmed the demolition. He reported the matter to the District County Commissioner. Later a report was done by the Public Health officer over the demolished toilet dated 25/4/2024. The matter was reported to the police. The toilet was built by Constituency Development Funds for Munani ECD, but when the school moved, the same was retained for use by members of the public at the market. The parcel of land where the Latrine was built was donated in 2005 by a community member named John. It was constructed at a cost of Kshs 251,585/= as per the bill of quantities dated 28/4/2006 by Kwembo Constructors, whose registration certificate is dated 22/8/2005. The stolen iron sheets and doors are yet to be recovered. He was not aware if the latrine was full. 6.PW2 Lwande Ernesto Mbuka, manager in charge of operations, testified that on 8/9/2024 he received a call from the area Member of Parliament informing him of the demolition of the public latrine at Munani. He visited the scene and confirmed the latrine had been demolished. A shopkeeper near the scene informed him that she witnessed Bethwel Dienya alias Rider and Mark Mukudi demolishing the latrine. He reported the matter to the police. He was not aware if the latrine was full. 7.PW3 Augustine Dienya the Assistant Chief Ruambua Sublocation, testified that on 5/9/24 he attended a public baraza (meeting)at Munani village in the company of Munani area Chief Mudonga, Oscar Ngira and Athanas Pamba. On 8th September 2024, he received information about the demolition of the latrine at Munani. Members of the public had complained of the foul smell coming from the latrine. Accused admitted to having ordered its demolition because of the smell and because it was also full. He personally did not order its demolition and neither did he witness its demolition. The latrine belongs to one Joseph Magenye who is accused’s brother. Accused resides on the same parcel of land as the location of the said latrine. 8.PW4 Catherine Achieng Odhiambo, a business lady at Munani, testified that on 5/9/24, she attended a public meeting at Munani organised by the area Assistant Chief by the name Augustine. That during the meeting, the said area assistant chief informed the members present that the latrine built by the CDF needed to be demolished so people could instead build their own. On 6/9/24, she saw Mark Mukudi and Albert alias Aluba Dienya, Majimbo and Opiyo demolishing the latrine. Albert and Opiyo removed the doors and claimed they had orders from the Assistant Chief to demolish the latrine. The said Latrine had been built by the government to assist the members of the public. The reason for the demolition, according to the area chief, was that people were failing to build latrines in their homes. Accused stood as the rest demolished. He held in his hand a large post -hole digger ‘Tarimbo’ which he used to destroy the doors. She did not witness accused carry away any doors. He was just instructing the rest on how to conduct the demolition. 9.PW5 Macalias Afande Mukudi testified on oath that on 6/9/2024 around 10.00am he was asked by Albert Dienye to accompany him to perform a manual job for pay from the accused. On arrival at the workplace, he found the accused and Albert. Accused instructed him, Albert and Opiyo Rider to remove the iron sheets on the roof of the latrines. He was paid Kshs 200 by accused. He later returned to fetch his balance of Kshs 200 from the accused, and that was when he found the latrine walls demolished as well. accused is his neighbor. He demolished the roof using a hammer. He did not see accused carry any materials from the destruction site. He instead assigned people to carry them to his home. 10.PW6 Valentino Adieka Ndienya testified that on 6/9/24 he received a call from the accused at around 11.00am requesting him to find a mason to help in the demolition of a latrine. He called Macalias, who, together with one Opiyo Rider, demolished the pit latrine. Mukudi removed the roof and the timber, which the accused ordered them to take to the store his home. Macalias was paid Kshs 200, while he received Kshs 100 from the accused. Accused informed them the latrine was full and smelly. Accused is their village elder. 11.PW7 Consolata Bessy stated that she attended the public meeting held at Minani on 5/9/24 when she heard the Assistant Chief order the demolition of the latrine for the reason that it was emitting a foul smell. The following day, she saw the latrine being demolished by Mark Mukudi, Opiyo, Ondienya, and Majimbo (accused), who is her neighbor. She then witnessed the materials, namely the waste pipe and door frames, from the demolition being ferried into accused’s home by Opiyo. The latrine was for public use. Accused and she had a land dispute, but she had no reason to frame him for this case. Accused had a tarimbo that day, which he used to cause the demolitions. 12.PW8 Stephen Okumu testified that on 5/9/24 he attended a public meeting organized by the Assistant Chief Augustine. During the meeting, Augustine ordered the demolition of the public latrine. On 6/9/24, she saw Macalias, Mukudi, accused, and Opiyo carrying out the demolitions, with the accused having a Tarimbo in his hand. The accused took away the iron sheets to his home. The latrine belonged to the CDF. The accused participated in the carrying away of the materials for demolition. 13.PW9 Mary Juma testified as the wife of one John Muliro. That her husband donated the land on which the CDF built a public latrine in Munani. The area MP was to pay her husband. This was more than 20 years ago. The land is still registered in her late husband’s name. She later heard the latrine had been demolished. The national Government built the said latrine for use by a nursery school, which later was used by members of the public. 14.PW10 George Omondi Otwenyo, the Sub-County Health Officer, stated that he authored the report dated 25/9/24 in respect of the latrine demolished and which had earlier been used by an ECD School. he visited the scene after receiving a report of the demolition from the CDF Chairman of Budalangi. He found the latrine demolished with the bricks and roof removed and missing. He produced the report as Pex no. 8. His report indicates signs of open defecation, which implies misuse of the said latrine by members of the public, hence posing a health risk. Once a latrine is reported full, the same ought to be reported and a solution recommended, which can be exhausted of the contents. He did not recommend the demolition. 15.PW11 Victor Omondi Amenge testified to have attended the public meeting on 5/9/24 when the area Assistant Chief Augustine ordered the demolition of the said latrine. The public rejected this proposal, stating that the same had been built by the CDF and therefore no one had the capacity to demolish it. He ordered the same to be demolished the following day. On 6/9/24 at around 8.00am, he saw Makarios demolishing the roof of the latrine, removing the iron sheets. When he asked who had assigned him the work, Makarios left. Later, Albert Ndienya, Opiyo Rider, Barasa and Neto in the company of accused demolished the latrine using hammers and a Tarimbo. The accused had the Tarimbo. They reported the matter to the CDF office. He even recorded the demolition orders by the Assistant chief in the meeting on his phone and saved in in a flash disk which he supplied the police with. a transcript of the conversation was also done and certificate thereof produced the doors and the iron sheets were later taken to his home after the demolition. 16.Accused, faced with a case to answer, offered his evidence as follows: 17.DW1 Fred Majimbo Olwete testified that on the material day of 6/9/24, he attended to his normal farm duties then went to Busia. On 5/9/24, he attended a public meeting organized by the Assistant Chief. The latrine was demolished in his absence. its located at the entrance to his homestead. he did not take away any of the demolished materials nor steal the materials from the demolition. Noe of the stolen items were recovered from his home. He never assigned anyone to carry out the demolition nor pay anyone to that effect. It is the Assistant chief who authorized the demolition in the meeting. The latrine was smelly. He had no grudge with any of the witnesses to have a reason to frame him for this offence. 18.In submissions, accused stated that the prosecution had failed to discharge the burden of proof beyond reasonable doubt in any of the charges for reason that no evidence had been produced to prove the latrine’s construction value of Kshs 261,585, the land upon which the said latrine stood was also not proved. That the certificate of search produced by PW9 showing the parcel of land known as BUNYALA/ MUDAMBI/366 belonged to her late husband John Zakaria Muliro was unsupported by the evidence of a lease agreement proving the said portion had been allocated for public use by the community. That no evidence was produced to prove the said Latrine was built by the NG-CDF Budalangi. That the fact that the said Zakaria was deceased, his estate remained unadministered and hence the CDF had no capacity to sue the accused on behalf of the estate of ZAKARIA. That any acts of the estate amounted to intermeddling. That no photographs were presented as evidence to prove destruction of the latrine as alleged hence no proof of the same. That none of the witnesses testified to seeing accused demolish the latrine or carry away the materials from the sad latrine from the crime scene. That all the evidence points to the Assistant Chief Augustine Dienya Swat as the culprit who authorized the demolition. That PW5 AND PW6 also had no evidence of payment from accused for the alleged demolition wage. That the charge of theft was equally not proved as none of the witnesses saw accused carry away anything. That none of the alleged stolen items stated in the charge sheet were produced as evidence hence proof unsatisfactory. That in effect, there being nothing recovered, the offence of handling stolen property also was rendered moot. He prayed for an acquittal of the charges. Issues for Determination 19.The issues for determination are:a.Whether the prosecution proved that the accused maliciously damaged the public latrine.b.Whether the prosecution proved the offence of stealing.c.Whether the alternative count was established. Analysis Count I - Malicious Damage to Property 20.Section 339(1) of the Penal Code provides,“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.”Odunga J. (as he then was) inTimothy Mutuku Kitonyi v Republic [2021] KEHC 1388 (KLR) held: -“I agree with Ngenye Macharia, J’s finding in Wilson Gathungu Chuchu vs. Republic [2018] eKLR that under the above definition, the elements of the offence may be dissected as proof of ownership of the property; proof that the property was destroyed or damaged; proof that the destruction or damage was occasioned by the accused; and proof that the destruction was wilful and unlawful.” 21.The evidence that the public latrine was demolished is overwhelming.PW1, the Chairman of NG-CDF Budalangi, testified that upon receiving information, he sent an officer to verify the report and later confirmed that the latrine had been demolished. PW2 equally visited the scene and confirmed the destruction. PW10, the Sub-County Public Health Officer, also visited the scene and prepared a report confirming that the latrine had been completely demolished. 22.The ownership of the structure was also, in my considered view and contrary to the submissions by the accused, proved. PW1 produced documentary evidence showing that the latrine had been constructed by the Constituency Development Fund for use by the nursery school before later being converted into a public facility. PW9 corroborated this evidence by confirming that her late husband donated the land upon which the public latrine was constructed. 23.The accused argued that ownership was not proved because the land remained registered in PW9's husband's name. I do not agree. The charge relates to destruction of the latrine and not ownership of the land. The prosecution sufficiently established that the destroyed structure belonged to NG-CDF Budalangi.In the case of Simon Kiama Ndiangui v Republic [2017] KEHC 8332 (KLR) Ngaah J. held: -“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful…….………suggestion in this provision that ownership of the destroyed property must be established for liability to attach. My take on this issue is that ownership of the property is a relevant but not the defining factor; it may be taken into account amongst other evidence that tends to establish that the offence was committed. It follows that failure to prove ownership is not fatal to the prosecution case and to this extent I agree with the learned counsel for the state.” (Emphasis mine) 24.Similarly, in Republic v Jacob Mutuma & another [2018] KEHC 6285 (KLR), Majanja J. (MHSRIEP) held: -“In my view, it is not difficult to see why the offence is not necessarily tied down to ownership of particular property. It is to prevent wanton destruction of property that may lead to lawlessness and people taking the law into their own hands.” 25.The next question is whether it was the accused who caused the destruction. 26.PW4 witnessed the accused standing at the scene armed with a Tarimbo while directing those demolishing the latrine. She saw him actively participating by destroying the doors.PW5 testified that the accused personally hired him, instructed him to remove the iron sheets from the roof and later paid him Kshs.200 for the work.PW6 similarly testified that after receiving a call from the accused he procured labourers, who demolished the latrine under the accused's instructions and that the accused paid him for the work.PW7 saw the accused participating in the demolition and later witnessed the demolition materials being ferried into his compound.PW8 equally saw the accused at the scene armed with a Tarimbo and participating in carrying away the iron sheets.PW11 testified that he witnessed the accused together with others demolishing the latrine after the Assistant Chief's proposal had been rejected by members of the public during the meeting. 27.The testimonies of these witnesses are mutually consistent on the material particulars. They independently place the accused at the scene, participating in and supervising the demolition. 28.The accused denied involvement and blamed the Assistant Chief for authorising the demolition. Even assuming the Assistant Chief had suggested that the latrine be demolished, such authority would have been unlawful. The Assistant Chief possessed no legal authority to order the destruction of public property. More importantly, none of the prosecution witnesses testified that the Assistant Chief physically demolished the latrine. Instead, they consistently identified the accused as the person who organised, supervised and participated in the exercise. 29.The accused's defence that he was away in Busia is inconsistent with the direct and credible evidence of several independent witnesses, including labourers whom he himself engaged. 30.I therefore find that the prosecution proved beyond reasonable doubt that the accused wilfully and unlawfully damaged the public latrine. Count II - Stealing 31.Section 268(1) of the Penal Code which provides that: “A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.” 32.The prosecution was required to prove that the accused fraudulently took the iron sheets, timber and door belonging to NG-CDF Budalangi.PW5 testified that after removing the roofing materials the accused instructed that they be carried to his home.PW6 corroborated this evidence by stating that the accused ordered the labourers to take the iron sheets and timber to his home after demolition.PW7 witnessed the doors and waste pipes being ferried to the accused's compound.PW8 equally testified that the accused carried away the iron sheets to his home.PW11 confirmed that after demolition the doors and iron sheets were taken to the accused's home. 33.Although none of the items was eventually recovered, recovery is not an essential ingredient of the offence of stealing. In the case of Katana Kitsao v Republic [2003] EKLR, the court (P.M. Tutui Commissioner of Assize) observed that “The main ingredient for a charge of stealing is “taking anything capable of being stolen fraudulently or without claim of right”.The offence is complete once there is fraudulent taking accompanied by an intention to permanently deprive the owner of the property. 34.The consistency of the evidence from these witnesses leaves little doubt that the accused appropriated the materials removed from the public latrine. 35.Accordingly, I find that the prosecution has proved the offence of stealing beyond reasonable doubt. Alternative Count 36.The alternative charge of handling stolen property only arises where the principal charge of stealing is not proved.Having found that the accused was one of the persons who stole the materials from the demolished latrine, the alternative count cannot stand. In his defence, the accused raised several issues concerning ownership of the land, absence of photographs, absence of receipts for payment of labourers and lack of recovery of the stolen items.None of these issues creates reasonable doubt. 37.Ownership of the demolished structure was sufficiently established through both oral and documentary evidence. Photographs, though desirable, are not mandatory where credible eyewitness evidence establishes the destruction. Equally, payment for casual labour may be made in cash without documentary proof, and the labourers who received payment testified on oath and were subjected to cross-examination. Lastly, recovery of stolen property is not a prerequisite for proving theft where there is credible eyewitness evidence showing the accused carried away the property. 38.The defence is therefore a mere denial and does not displace the cogent prosecution evidence. Determination 39.I am satisfied that the prosecution proved beyond reasonable doubt that the accused wilfully destroyed the public latrine belonging to NG-CDF Budalangi and thereafter stole the building materials removed during the demolition. 40.Accordingly, the accused is convicted on Count I for the offence of malicious damage to property contrary to section 339(1) of the Penal Code pursuant to section 215 of the Criminal Procedure Code 41.The accused is convicted on Count II for the offence of stealing contrary to section 268(1) as read with section 275 of the Penal Code pursuant to section 215 of the Criminal Procedure Code 42.The accused is acquitted on the alternative count of handling stolen property, the same having been overtaken by the conviction on the principal count Orders accordingly. DATED, SIGNED AND DELIVERED AT PORT VICTORIA THIS 27TH JULY 2026. HON. ANNE NJERUSENIOR RESIDENT MAGISTRATE.In the presence ofAccused, his advocate Mr. Shihemi,The prosecutor Mr. Githinji andMr. Masiga the Court Assistant.