Republic v Akinyi & another (Criminal Case E332 of 2025) [2026] KEMC 252 (KLR) (29 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE SENIOR RESIDENT MAGISTRATES COURT AT PORT VICTORIA** **CRIMINAL CASE NO. E332 OF 2025** **REPUBLIC VERSUS LINET AKINYI AND VINCENT ONYANGO** **JUDGEMENT** 1. Accused persons have both been charged with the offence of malicious damage to property contrary to section 339(1) of the Penal Code. Particulars are that on the 26th day of October 2025 at about 1930hrs at Mukonjo village, Nyakhobi Sublocation Nambuku location in Samia Sub County within Busia County, accused jointly with others not before court willfully and unlawfully damaged two wooden doors, assorted plastic chairs, basins, wooden chairs, super drum all valued at Kshs 40,000 the property of Ann Atieno Omungo 2. Both accused denied the charges and the prosecution presented its evidence as follows: 3. PW1 Anna Atieno in a sworn statement stated that on the material day of 26/10/2025, at around 7.30pm, around 8 people including Ford, Okara,Daria, Ojiambo, Mukoya, Biona, Namenya came into home armed with weapons. She was with her children namely Y.A.A(hereinafter referred to complainant’s daughter) and her siblings including Michael and his friend Vincent who were in their boy’s hut. Ford, armed with a panga began slapping Yvonne across her face. Ford had a panga and he immediately began slapping her daughter. She tried to rescue her daughter but Ford hit her with a club on her right cheek. The rest of his group began destroying property. They entered her house, broke her sofa, plastic chairs, super drum, basins, super drum, all wooden chairs, doors and whatever they found of use, took them away such as her Woofer. Her son Michael and his friend tried to stop the accused persons but they were outnumbered. The images in court show the damage to her property. They reported the matter to the police. The following morning 4 of them namely Ford, Mukoya, Ojiambo and Daria returned armed with rungus and pangas and Daria attacked Vincent by cutting him at the back of his head with a panga. They made a further report to the police and this time, they returned home with police officers. Their reason for the attack was that her daughter had rejected sexual advances of Ford. Ford brought the group who are his family members to attack her. 1st accused was among the group that destroyed her house in the company of 2nd accused who goes by the name Okara in the village. That the accused and their family members are known to always attack fellow villagers as a group. Only some pangas and shoes belonging to Ford were recovered. The images of the damage were captured in the morning. 4. PW2 Y A.A, a 14 year old and class 8 student stated that on the material day, she was at home with her mother and siblings when accused in the company of their other family members attacked her. Ford turned and slapped her mother with a panga when she asked him why they were destroying her property. Her brother Michael and her other elder brother tried to intervene the situation but were outnumbered. Ford Kennedy in the scuffle managed to drop his panga shoes and cap which they later took to the police. The group comprised of Ford, his mother Daria, Mukoya, Ojiambo, Vincent (2nd accused) and 1st accused is Fords’ wife.. They were demanding for a mobile phone Ford had bought her Ford assaulted them while the rest of his group destroyed the households. After the group left, they reported the matter to the police. On 24/10/25, Ford had met her along the road and forcefully handed her a mobile phone to communicate with her. Ford made sexual advances at her but she constantly rejected him. The group is their neighbor hence well known to them. 5. PW3 73329 SGT Jared Atoni the investigating officer testified that on 27/10/2025 around 8.00am, complainant in the company of her 3 children reported damage to her property by accused persons and their accomplices on 26/10/2025 at around 8.30pm at her home. That the group, led by 1st accused’s husband had attacked them in their home and broken their wooden doors, chairs, plastic basins, super drum and other property and made away with complainant’s sub-woofer. The said Ford has the previous day confronted complainant’s daughter as to why she had rejected his sexual advances. He had then brought his family members to attack her in revenge for the rejection. In the company of his fellow officer’s PC Namulata, PC Koech, PC Chege and Driver Griffins, they went to complainants’ home where he took photographs of the damages. He did not find the accused persons at the complainant’s home. Complainants children had sustained some injuries in the scuffle. They were escorted to the hospital for treatment. later, he only managed to attest the two accused persons while the others remain at large. He produced the photographs as Pex no. 1 (a) to (d), the photographs were certified by scenes of crime officer vide an exhibit memo form dated 31/2/2026 which he produced as Pex no. 2(a) and a certificate thereof issued which he produced as Pex no. 2(b). At the time of 1st accused’s arrest, 1st accused was also found with unlawful possession of alcoholic drinks was charged in a separate case with the said offence. 2nd accused was arrested while at Funyula town and not for illegal possession of alcoholic drinks. 6. At the close of the prosecution’s case, each of the accused were found with a case to answer and placed on their defence. Their evidence was as follows: 7. DW1 Linet Akinyi Owima in her sworn testimony stated that she understood the charges she was facing and knew the complainant as her neighbor. On the material day and time she was at home cooking dinner in the company of her small child. She could not leave her child to participate in a fight as alleged. she was arrested with illegal possession of alcoholic drinks and not for this reason of the charges herein. She never committed the offence alleged. 8. DW2 Vincent Onyango Okumu in his sworn testimony stated that on 26/10/2025 at around 6.00pm he went to charge his phone and retuned home around 8.00pm.it was his child that informed him that her uncle (Kennedy Ouma) had been assaulted at complainant’s home. He went to his brother’s home and his brother informed him that they had gone to drink alcohol at complainant’s home when a fight broke and he was injured. The following day, he saw his brother Benard Ouma bleeding from his head and Benard informed him that complainant’s son by the name Vincent, had cut him with a panga when he went to claim his brother(Kennedy’s) shoes and phone from complainant’s home which had remained after the fight earlier. He took them to the hospital. Later he was arrested by police who were accompanied by Michael, complainant’s son. He did not damage the property belonging to the complainant he does not understand why complainant framed him for the offence herein. 9. Based on the evidence on record, the key issue for determination is whether the prosecution proved beyond reasonable doubt that the accused persons, jointly with others not before the court, willfully and unlawfully damaged the complainant's property as alleged. 10. To secure a conviction under section 339(1) of the Penal Code, the prosecution must prove: 11. That the property in question existed and belonged to another person. 12. That the property was destroyed or damaged. 13. That the damage was willful and unlawful. 14. That the accused persons were the perpetrators of the damage. 15. The evidence of PW1, the complainant, was that on the evening of 26th October 2025 a group of about eight people, including the two accused persons, invaded her homestead armed with pangas and clubs. According to her, while Ford assaulted her daughter and later herself, the rest of the group, including the accused persons, destroyed household items such as doors, chairs, basins and a super drum. She testified that the accused persons were well known to her as neighbours and therefore there was no possibility of mistaken identity. 16. While the mode of lighting used to identify the accused among the group that attacked them was omitted by the prosecution, there was no doubt that the witnesses knew the attackers well prior to the incident. This court takes cognizance of the distinction between recognition and identification in unclear circumstances. A case in reference is that of ***Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR)***Where the court explained the concept as follows: *“…. recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”.* 17. In my view, there was no case of mistaken identity as to who attacked and damaged complainant’s property on the material day. Further, PW2, the complainant's daughter, corroborated the testimony of PW1. She stated that she personally saw both accused persons among the group that attacked their home. She identified the 1st accused as Ford's wife and the 2nd accused as Vincent Okara. She explained that the attack arose after she had rejected Ford's sexual advances. Her evidence placed both accused persons at the scene and participating in the attack. 18. The evidence of PW1 and PW2 was further supported by PW3, the investigating officer, who visited the scene the following morning and documented the damage. The photographs produced in evidence depict damaged doors and household items consistent with the account given by PW1 and PW2 and confirmed by the Investigating officer. The defence did not challenge the authenticity of those photographs. The prosecution therefore proved that damage was occasioned to the complainant's property. 19. The court has considered the defence of the 1st accused who stated that she was at home cooking dinner with her child and could not have participated in the attack raising a defence of alibi. That said, it was upon the accused to raise the same earlier to allow the prosecution time to verify the same. Raising alibi defence at the defence stage strips the prosecution of that opportunity. The court of appeal in ***Erick Otieno Meda vs. Republic [2019] eKLR*** inter alia stated that *“In considering an alibi, we observe that: a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from theaccused’s point of view. b. An alibi defence needs to be introduced at an early stage so as to allow it to betested, especially during cross-examination of the trial…”* 20. While it remains the duty of the prosecution to disprove defence of alibi as held in the case of ***Kiarie – v- Republic [1984] KLR***, 1st accused’s evidence does not displace the direct and positive identification by PW1 and PW2, both of whom knew her before the incident and had no difficulty recognizing her. 21. Similarly, the 2nd accused denied involvement and claimed that he only learnt of a fight involving his relatives after the incident. He stated that he later took his injured relatives to hospital. Again, this defence does not rebut the direct evidence of PW1 and PW2 who placed him at the scene as one of the attackers. The court notes that the identification was by recognition, which is generally more reliable than identification of a stranger. 22. The court has also considered whether there existed any motive for the complainant and her daughter to falsely implicate the accused persons. None was suggested. Their evidence remained consistent regarding the composition of the attacking group and the role played by the accused persons. Minor discrepancies, if any, do not affect the substance of the prosecution case. In the case of ***Twehangane Alfred vs Uganda(Cr.App.No.139 of 2001(2003) UGCA*** it was held that it is notevery contradiction that warrants rejection of evidence. 23. The prosecution evidence establishes that a group led by Ford attacked the complainant's homestead and damaged the property specified in the charge sheet. Although the evidence does not show which particular item was damaged by each accused person, the charge alleges joint participation. Under the doctrine of common intention, where several persons act together in the execution of an unlawful purpose, each is deemed responsible for the acts of the others done in furtherance of that purpose. The evidence demonstrates that the accused persons were part of the group that unlawfully invaded the complainant's home and destroyed her property. 24. I therefore find that the prosecution has proved beyond reasonable doubt that the accused persons jointly with others not before the court willfully and unlawfully damaged the complainant's property valued at Kshs 40,000. 25. Accordingly, I find both accused persons guilty of the offence of malicious damage to property contrary to section 339(1) of the Penal Code and convict each of them under section 215 of the Criminal Procedure Code. Dated, signed and delivered at Port Victoria this 29th day of June 2026 Hon. Anne Njeru SRM