https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/690

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT BUNGOMA** **CRIMINAL CASE NO. E470 OF 2025** **REPUBLIC…………………………………………………………………………………DPP** **VERSUS** **AGGREY JUMA MATASI…….………...……..………………………..ACCUSED PERSON** **JUDGMENT** 1. Aggrey Juma Matasi (“the Accused Person”) was arraigned on 20th April 2025 to plead to a charge of destruction of crop of cultivated produce contrary to section 334 (a) of the Penal Code whose particulars were that: *On diverse dates between 08th February 2025 to 13th February 2025 at unknown time at Ruriende village, East Siboti Sub-Location, Siboti Location, Kimaeti Sub-County within Bungoma County the Accused Person unlawfully and knowingly grazed his animals on the farm of one namely Severin Wafula Matasi that destroyed his cassava, sweet potatoes and maize crops amounting to Kshs. 43,000/=.* 1. The Accused Persons denied the charge facing him thereby setting the stage for the the hearing of this matter for the prosecution to prove their case beyond reasonable doubt. 2. A summary of the evidence adduced before this court is set out below. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Severio Wafula Matasi** testified that he received a call from his son on 08th February 2025 from his son (PW2) who informed him that the Accused Person was grazing his cows on his farm thereby destroying his crops. He reported the matter at Mashiero Police Post. 2. He went back to his home in the evening when he found the Accused Person and his sons grazing the Accused Person’s cows on his land thereby destroying his crops. He added that police officers visited the land and took photos. 3. Police officers advised him from the agriculture officer who visited the shamba on 18th February 2025 and prepared an agriculture report dated 18th February 2025 detailing damage to his crops. 4. He conceded in cross-examination that the photos taken by the police officers were only showing the cows destroying cassavas and sweet potatoes. He stated that at the time the photos were taken the Accused Person had gone to pick his cows from the land. 5. **PW2 Griffin Simiyu Wafula** testified that he woke up on 08th February 2025 at around 0830hrs when he found the Accused Person and his sons grazing their crops. He informed PW1 about the incident and advised him to report the incident at Mashero Police Post. 6. He joined PW1 at Mashero Police Post when the OCS Miyanga called them and informed them that he was at the scene. They went back home and found the OCS Miyanga, deputy OCS Miyanga and other police officers from Miyanga berating the Accused Person for his actions. 7. He also added that the Accused Person ploughed their germinating maize on 17th February 2025 and thereafter planted his maize on their parcel of land. 8. **PW3 Isaac Simiyu Wanjala** stated that on 12th February 2025, he met PW1 and PW2 at the scene when he questioned PW1 why cows were destroying his crops. PW1 told him that the owner of those cows was disrespectful. 9. **PW4 Joseph Juma** is the agriculture officer South Bukusu. He visited the land in question on 18th February to assess the crop damage. He formed an opinion that the maize, cassava, and sweet potato destroyed on the land were valued at Kshs. 43,000/=. He added that it was the second time he was assessing the damage to the crops on the land in question. 10. He prepared an Agriculture Officer’s report dated 18th February 2025 to evidence the crop damage, and produced the same as an exhibit. 11. He clarrified in cross-examination that agricultural officers report do not bear land parcel numbers, and that they do not seek land ownership documents from complainant’s when writing their reports. He added in re-examination that the area village elder helped him to identify the complainant’s land on the date he went to assess the crop damage. 12. **PW4 No. 12XX95 PC Philip Otieno Ochieng** of Miyanga Police Station conducted investigations into the complainant’s complaint herein that had been reported by the complainant on 18th February 2025. 13. He visited the scene and confirmed that cassava, maize, and sweet potatoes had been damaged. He took scene photos. He also referred the complainant to the agriculture officer who assessed the damage to the crops. He added that his investigations revealed that the Accused Person had unlawfully grazed the complainant’s crops. 14. He produced the scene photos and the certificate of print as exhibits. 15. In cross-examination, he admitted that he could not tell the owner of the land where the crops had been destroyed by the Accused Person’s cows. He further stated that when he visited the scene, he found the Accused Person walking away his cows from the scene. He also admitted that he did not carry out investigations on the ownership of the land where the crops had been destroyed by the Accused Person. **Accused Person’s Case** 1. After the close of the prosecution's case, this court delivered a ruling on 08th December 2025 placing the Accused Person on his defence. The Accused Person elected to give sworn testimony. He called one witness in his defence. 2. **DW1 Aggrey Juma Matasi** recalled that on 08th February 2025 while at his Kimwanga market, he was informed that the OCS Miyanga needed him at his home. He went to his home and found his cows under his sons control and care in a cassava and potatoes in DW2’s shamba. 3. He found PW2 and police officers taking photos of his cows. He led the cows out of the shamba. He denied his cows destroying crops in the complainant’s shamaba. He attributed this case to a land dispute between him and the complainant. 4. He stated in cross-examination that the complainant was his nephew. He reiterated that the land and the crops the complainant was complaining about belonged to DW2. 5. **DW2 Douglas Wafula Matasi** testified that the Accused Person was his brother while the complainant was his nephew. 6. He stated that PW1 and the Accused Person had a land dispute over his father’s land. 7. He added that the land where the Accused Person’s cows were found belonged to him, and that his mother used to cultivate that land while he was away from home. He stated that the complainant constructed his house on his parcel of land while he was away from home, prompting him to report the matter to the area Assistant County Commissioner. 8. He further stated that the area Assistant County Commissioner (ACC) visited the disputed parcel of land on 13th March 2025 while in the company of the area chief and the area mukasa. The said visit prompted the ACC to write a letter dated 19th August 2025 to their area Deputy County Commissioner (DCC), informing the DCC about ownership of the land and the crops thereon. He produced the said ACC’s letter as an exhibit. 9. In cross-examination, he stated that he was away from home when the crops were destroyed. He added that he did not report the crop destruction to the police since he wanted to clear the area where the crops were destroyed. 10. In view of the new evidence in the ACC’s letter dated 19th August 2025, the prosecution made an application under section 212 of the Criminal Procedure Code to cross-examine the ACC 11. Patricia Loliso testified that she authored the letter dated 19th August 2025 while working as an ACC at Kimaeti Sub-County. She stated that PW1 and DW2 visited her office and requested her to write the letter herein since she had visited the disputed land on 13th March 2025. She added that PW1 and DW2 did not disclose to her if there was a pending case in court regarding the crops on the disputed land when they requested her to write the letter. 12. She further stated that when she questioned PW1 during her visit to the disputed land, PW1 admitted that the land belonged to him, but the crops belonged to DW2. **ANALYSIS AND DETERMINATION** 1. This court has given due regard to the evidence on record. It is this court’s considered view that the only issue for determination is whether the prosecution proved its case against 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 crops*** 4. PW1, PW2, PW3, and PW5 testified that cassava, maize, and sweet potatoes were destroyed on the disputed land. The Agriculture Officer’s report dated 18th February 2025 produced by PW4 as well as the scene photos produced by PW5 corroborated the prosecution witnesses’ oral testimonies that crops were damaged on the disputed land. 5. The defence did not impeach the prosecution’s evidence that crops were destroyed on the disputed land. 6. It is against this backdrop that this court holds and finds that the prosecution proved beyond reasonable doubt that there was destruction of crops on the disputed parcel of land. 7. ***Whether the destroyed crops belonged to the complainant*** 8. PW1 – PW5 maintained that the crops destroyed belonged to the complainant (PW1). The prosecution also reiterated that the land where the crops were destroyed belonged to PW1.PW5, who investigated this case, insisted that the destroyed crops belonged to PW1. However, PW5, who investigated this case, conceded that he did not establish the ownership of the land where the crops were damaged. 9. The Accused Person, on the other hand, maintained that the crops belonged to DW2, who confirmed as much. DW2 also claimed ownership of the parcel of land where the crops were destroyed. The letter on record by the ACC and the ACC’s oral testimony corroborated the defence’s case on ownership of the disputed land and the destroyed crops. 10. The evidence on record shows that there is a dispute on the ownership of the land where the destroyed crops were growing and the ownership of the disputed land. 11. The question of ownership of the land where crops are reported to have been destroyed is also an important consideration in determining the ownership of the destroyed crops, as was stated by Mbungi, J in **Nyongesa v Director of Public Prosecution (Criminal Appeal E003 of 2025) [2026] KEHC 5806 (KLR),** where the learned judge stated as follows: *“I have gone through both the prosecution and the defence evidence. There are several things that the prosecution ought to have proved. First, they should have proved ownership of the land parcel Bunyala/Nambacha/1680. They ought to have also proved that the sugarcane that was destroyed belonged to the complainant and that they were planted by him….”* 1. The position taken by Mbungi, J above is fortified by the *cujus maxim*, which Visram, JA (as he then was) defined in **Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR)** thus: *30.**Article 260 aforesaid echoes the traditional definition of land under the common law doctrine known as Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine)which translates to “whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell”. As with our Constitution, the doctrine defines land as the surface thereof, everything above it and below it as well…”* 1. It is evident from the authorities above that a complainant can only claim ownership of the destroyed crops after proving ownership of the parcel of land where the destroyed crops were destroyed. Proof of such ownership could be through documents like title deeds or lease documents or even oral testimony by persons conversant with ownership of a given parcel of land. 2. This begs the question of whether the evidence led by the prosecution established, proved beyond reasonable doubt, that the land where the crops were destroyed belonged to the complainant, thereby making him the owner of the destroyed crops. 3. The question above finds its answer in the ACC’s letter on record and the ACC’s oral testimony on ownership of the disputed land and the destroyed crops. 4. The ACC testified that she authored the letter on record at the request of PW1 and DW2 after she had visited the disputed land 13th March 2025 almost one month before filing of this case. The ACC added that she was not aware of this case when she authored the letter on record. 5. The evidence by the ACC that she authored the letter on record at the instigation of PW1 and DW2 after she had visited the disputed land before the filing of this case, and that she was not aware of this case when she authored the letter on record, was not impeached by the prosecution at all. 6. The foregoing shows that the letter on record was not an afterthought and that the same was not authored by the ACC to help the Accused Person steal a march against the complainant. 7. The said letter creates reasonable doubt on the complainant’s ownership of the destroyed crops and the complainant’s ownership of the portion of land where the crops were destroyed. That doubt must be resolved in the Accused Person’s favour. 8. The foregoing inevitably leads to the finding that the prosecution failed to prove beyond reasonable doubt that the destroyed crops belonged to the complainant. 9. The finding above renders the determination of whether the prosecution proved the other ingredients of the offence herein beyond reasonable doubt moot. **DETERMINATION** 1. Given the reasons above, the Accused Person is acquitted under section 215 of the Criminal Procedure Code for the offence of destruction of crops under cultivation 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. Mulwa and Ms. Achieng for ODPP Accused Person C/A: Mr. Rioba