Republic v Oprong (Criminal Case E605 of 2025) [2026] KEMC 316 (KLR) (16 July 2026) (Ruling)

Republic v Oprong (Criminal Case E605 of 2025) [2026] KEMC 316 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEMC 316 (KLR) Republic of Kenya In the Malaba Law Courts Criminal Case E605 of 2025 AZ Ogange, RM July 16, 2026 Between Republic Prosecutor and Philip Ebere Oprong Accused Ruling 1.The accused person was presented before this court on 2nd December 2025 and charged with the offence of cutting down trees contrary to Section 334(1) of the Penal Code. 2.The particulars are that on the 24th day of November 2025 at Chelelemuk sub-location in Teso North Sub-County within Busia County, willfully and unlawfully cut down five mango trees, five pine trees, five eucalyptus trees, five cypress trees and five egule tress the property of Isaac Oprong all valued at Kshs. 87,340/=. 3.The accused person pleaded guilty to the charges and the matter was reserved for reading of facts on 16th December 2025. The prosecution made an application for amendment of charge sheet which application was allowed and the accused person took plea afresh on 23rd December 2025. 4.He was charged with the offence of cutting down trees contrary to section 334(c) of the penal code. The particulars are that the accused person on the 24th day of November 2025 at Chelelemuk Sub-County within Busia County willfully and unlawfully cut down five trees of different species valued at Kshs. 32,782.18/= the property of Isaac Chrispine Odeke Oprong. 5.The accused person pleaded not guilty to the charges and was admitted to cash bail of Kshs. 5,000/=. The matter was set down for hearing and the prosecution called a total of three witnesses. 6.PW1 was the complainant one Chrispine Isaac Odeke Oprong who testified that on 24th November 2025 he was called by his sister one Pamela Osore and informed that their younger brother had cut down trees in their family homestead. That this was not an isolated incident and they had tried to resolve the dispute at home to no avail. That the trees cut down were a mixture of indigenous trees namely mango trees, cypress trees among others. That his sister regarded him as the family spokesperson and hence the report. That the trees were valuable with sentimental value. The matter was escalated to Kenya Forest Service to ascertain value of the trees. 7.On cross-examination he reiterated that this was not an isolated incident hence his resolve to report to the police station. That the sitting at clan level was not with a view to resolve this case. That the reason the matter is in court is because the accused person did not seek permission to cut down the trees. That the land is still in their father’s name and has not been sub-divided and the properties and cars of their father were handed over to him during their father’s lifetime. 8.There was no re-examination for this witness. 9.PW2 was one Gregory Oprong who testified that on 24th November 2025 he was on his property which is situate next to that of the complainant. That he is an uncle to both the accused person and the complainant. He heard the sound of a power saw cutting down trees and witnessed the accused person cutting down the trees. He informed one Pamela what he had seen. That he knew that the said Pamela would inform the Complainant who had been left in charge of the homestead. 10.On cross-examination he testified that the trees were cut down on 21st day of November and he did not speak to the accused person as according to him the accused person did not respect them. That his siblings sat and appointed the complainant as the administrator. 11.There was no re-examination for this witness. 12.PW3 was the Investigating Officer one PC Joseph Muthami who testified that on 27th November 2025 a complainant reported a case of cutting down trees belonging to their father. He visited the scene and found twenty-five tree stumps and some coal. On interrogation of the neighbors he established that on 21st November 2025 the accused person using a panga cut down some trees. He got assistance from an officer of Kenya Forest who assessed the damage. He later arrested the accused person, recorded his statement and arraigned him in court. He produced photographs of the scene as PEXH 1(a) and (b) and the report from Kenya Forest Service as PEXH (2). 13.On cross-examination he testified that he visited the scene on 10th December 2025 and the report had been booked on 27th November 2025. That to him this was a family issue. He took general photographs and that the accused person had been seen cutting down twenty-five trees. 14.There was no re-examination for this witness. This marked the close of the prosecution’s case and the court reserved the matter for ruling on 16th July 2026. Analysis and Determination 15.The issue for determination is whether the prosecution established a prima facie case against the accused person sufficient to warrant his being placed on his defence. 16.The charge sheet in this matter alleges that the accused person unlawfully cut down five trees. The complainant (PW1) was unable to state the number of trees allegedly cut. It was only the investigating officer (PW3) who testified that twenty-five trees had been cut, yet his testimony was not corroborated by the complainant or any other witness. Further there was no concurrence between the particulars of the charge sheet and evidence adduced in court as to when the offence was committed. The prosecution witnesses testified that the offence was committed on 21st November 2025 with the particulars of charge sheet indicating that the offence was committed on 24th November 2025. 17.The prosecution witnesses also gave conflicting accounts regarding the instrument allegedly used to cut down the trees. PW2 testified that the trees were cut using a power saw and explained that it was the sound of the machine that attracted him to the scene. On the other hand, PW3 testified that the trees had been cut down using a panga. This contradiction was neither explained nor reconciled by the prosecution. Given that the manner in which the offence was allegedly committed formed part of the prosecution narrative, such inconsistency cannot be dismissed as inconsequential. 18.Further, the prosecution produced a tree assessment report through the investigating officer. The maker of the report or any officer from the Kenya Forest Service possessing the requisite expertise was not called to testify. Equally no foundation was laid to justify the production of the report by PW3 in the absence of its maker. Consequently, the evidential weight to be attached to that report is considerably diminished. 19.Be that as it may, the most fundamental deficiency in the prosecution’s case relates to the proof of ownership of the trees. The particulars of the charge expressly alleged that the trees belonged to Isaac Oprong. However, the evidence adduced established that the trees were situated on land belonging to the parties’ deceased father and that the accused and the complainant are siblings. No grant of representation, certificate of confirmation of grant, transmission documents, family agreement or any other evidence was tendered to demonstrate that ownership of the trees had devolved to the complainant or that he had authority to deal with or assert proprietary rights over the estate on behalf of the family. In the absence of such evidence, the court cannot simply presume that the complainant was the owner of the trees. In so holding and by applying analogy of reasoning I am guided by the Court of Appeal decision in James Manyoni Nyachuba v Republic [2011] KECA 73 (KLR)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. To illustrate the point that ownership in which the trees stood constituted the heart of the case, section 3 of the Registered Land Act under which the parcel in question was registered defines “land” as follows:-“Include land covered with water, all things growing on land and buildings and other things permanently affixed to land.” 20.The prosecution was bound to prove the case as charged. Since it specifically alleged that the trees belonged to the complainant, proof of ownership was essential. The cumulative effect of the inconsistencies in the prosecution evidence coupled with the failure to establish ownership is that no prima facie case has been made out against the accused person. 21.The accused person is therefore acquitted of the offence of cutting down trees contrary to Section 334(c) of the Penal Code under Section 210 of the Criminal Procedure Code. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT MALABA PRINCIPAL MAGISTRATES COURT THIS 16TH DAY OF JULY, 2026.A.Z. OGANGERESIDENT MAGISTRATEIn the Presence ofPhilip Ebere Oprong the Accused PersonMr. T. Rotich Prosecution CounselCourt Assistant: Paul Otieno