Republic v Wanjala (Criminal Case E1180 of 2025) [2026] KEMC 655 (KLR) (6 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CRIMINAL CASE NO. E1180 OF 2025** **REPUBLIC……………………………………………………………………………………..DPP** **VERSUS** **NICKSON WANJALA…………………..………………………………...ACCUSED PERSONS** **JUDGMENT** 1. On 25th April 2025, the Accused Person was arraigned for the offence of malicious damage to property contrary to section 339(1) of the Penal Code whose particulars are that:- *On the (sic) diverse dates between 1st August 2022 and 23rd October 2024 at Musikoma location in Bungoma County, the Accused Person willfully and unlawfully destroyed the house electrical installations and fittings all valued at Kshs. 50,323/= the property of Harrison Indimuli* 1. The Accused Person denied the charge herein, prompting the prosecution to lead evidence from five (5) witnesses in an effort to prove their case against the Accused Person beyond reasonable doubt. **EVIDENCE** **Prosecution’s Case** 1. **PW1 Harrison Munala Indimuli** recalled that on 15th February 2025, he accompanied the Accused Person who is his tenant to his apartments in Romima area where the Accused Person used to stay. 2. He added that they went to the apartments while in the company of other people including PW2, PW3, and PW4 to access the house which the Accused Person had rented for him to exercise his right of lien over the Accused Person’s property since the Accused Person owed him Kshs. 60,000/= in rent arrears. 3. He added that when the Accused Person’s house was opened, they noticed that electrical fittings in that house had been damaged. He reported the matter to the police who visited the house and took photos of the damage. 4. In cross-examination, he stated that he locked the house with his padlock when the Accused Person’s padlock was still intact on the door. He admitted that no one saw the Accused Person carting away electrical appliances from the house. He added that they found two padlocks on the Accused Person’s door when they went to the house with the Accused Person. 5. **PW2 Joshua Wangila Nyongesa** is the caretaker at PW1’s apartment where the Accused Person used to stay. 6. He testified that on 23rd October 2024, PW1 instructed him to lock the Accused Person’s house with a padlock since the Accused Person had rent arrears. He found the Accused Person’s locked with another padlock so he added another padlock. The Accused Person returned that evening when he told him to engage PW1 over the rent arrears. He added that the Accused Person stayed under the stairs within the apartment for around three weeks then disappeared. 7. He also recalled that the Accused Person’s house was opened on 15th February 2025 in the Accused Person’s presence after the Accused Person had unlocked his padlock when they realized that electrical appliances in that house had been vandalized. 8. In cross-examination, he stated that the Accused Person used to leave the apartment every morning with a laptop bag but he never used to ransack the said laptop bag. He suspected that the Accused Person used to carry the vandalized electrical appliances in that laptop bag in bits. 9. He denied breaking the Accused Person’s padlock before they accessed the house. He reiterated that there were two padlocks on the Accused Person’s house’s door when they discovered the vandalized electrical appliances in that house. 10. He further stated that the vandalism in the Accused Person’s house could not affect the other tenants since the other tenants had separate electrical metres. 11. **PW3 Hopkin Abwabo Mandala** introduced himself as the Accused Person’s area village elder. He recalled that on 15th February 2025, he was instructed by his area chief to accompany PW1 and the Accused Person to PW1’s apartment. 12. They proceeded to the Accused Person’s house which was opened by PW2 and the Accused Person only for them to discover that electrical appliances had been vandalized in that house. He also noticed that some of the property in the house had been packed. 13. In cross-examination, he denied breaking into the Accused Person’s house and vandalizing the electrical appliances therein. 14. **PW4 Moses Wanyonyi Kasembeli** testified that he witnessed PW2 and the Accused Person unlocking padlocks to the Accused Person’s house when they discovered that electrical appliances in that house had been vandalized. 15. He added that PW1 and the area chief questioned the Accused Person about the vandalism but the Accused Person did not answer. 16. He reiterated that the Accused Person unlocked his padlock before they accessed the house and discovered the vandalism. 17. **PW5 No. 255807 PC Levis Ochieng** of Musikoma Police Station investigated this case. He recalled that PW1 reported this matter to the police station on 15th February 2025. 18. He visited the scene on 17th February 2025 when he took the scene photos. He added that PC Sang and an electrician accompanied him to the scene to assess the damage. He also the photos to the scenes of crime personnel for processing. He produced the photos evidencing the damage to the electrical appliances in PW1’s house, the certificate of print, the exhibit forwarding memo, and the wiring quotation as exhibits. 19. In cross-examination, he reiterated that the Accused Person was responsible for the vandalism in the house since he was the person who used to stay in that house before the vandalism was discovered. He maintained that the Accused Person’s padlock had not be damaged when the house was opened by PW2 in the presence of the Accused Person when the vandalism was discovered. **Accused Person’s Case** 1. This court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused elected to give sworn testimony. He did not call any witnesses. 2. The Accused Person denied committing the offence herein. He recalled that on 23rd April 2024 when he went back to his house in the evening, he discovered that his house had been locked by a second padlock. He did not access the house that day. 3. He stated that sometime in November 2024, PW1 told him to remove his property from the house since someone wanted to occupy the house. He requested time to raise the rent arrears, but PW1 insisted on breaking into the house. He alleged that the house was broken into in his absence. 4. He added that they found the house locked with one padlock when they visited the house while in the company of PW1, PW2, PW3, and PW4. He produced a broken padlock as an exhibit. **ANALYSIS AND DETERMINATION** 1. This court has carefully considered the evidence on record. The issue that commends to this court for determination is whether the prosecution proved beyond reasonable doubt that the Accused Person maliciously vandalized or damaged the complainant’s house as set out in the particulars of the charge herein. 2. **Section 339 (1) of the Penal Code sets out the offence of malicious damage to property as follows;** ***“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.”*** 1. In **Joseck Muthuri Mwarania v Republic [2020] eKLR,** it was stated that under the above definition, the elements of the offence may be dissected as; ***(i) Proof of ownership of the property.*** ***(ii) Proof that the property was destroyed or damaged.*** ***(iii) Proof that the destruction or damage was occasioned by the accused.*** ***(iv) Proof that the destruction was willful and unlawful.*** 1. The elements of this offence were also stated in the case of **Simon Kiama Ndiagui vs. Republic (2017) eKLR**, as follows- *“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.* 1. Having fully appreciated the ingredients of the offence herein as set out in the authorities above, this court now proceeds to determine whether the prosecution proved the above ingredients of the offence herein beyond reasonable doubt. This will also involve considering the Accused Person’s defence. 2. It is common ground that the complainant owned the house where the Accused Person used to stay. It is also not in dispute that electrical fittings in the complainant’s house, where the Accused Person used to stay, were damaged. 3. The foregoing proved beyond reasonable doubt that the complainant’s property was damaged. 4. Turning to the question of whether the Accused Person occasioned damage to the complainant’s house, all the prosecution witnesses were emphatic that on the date the damage to the complainant’s house was discovered, the said house was opened after PW2, and the Accused Person had opened their respective padlocks which had been used to lock the house. 5. The Accused Person, on his part, stated that he found the padlock he had used to lock the house broken when he accompanied the complainant and the other prosecution witnesses to the house on the date the vandalism was discovered. He even produced a damaged padlock as an exhibit in support of his defence that the complainant’s house had been accessed before the vandalism was discovered. 6. It is inconceivable that the complainant or PW2 could damage the Accused Person’s padlock, access the house, then damage the electrical fittings in that house, leave the Accused Person’s damaged padlock at the scene, and then confidently tag along with the Accused Person and the local administrators to the house to witness their own acts of vandalism. 7. Further, it is noteworthy that even after the Accused Person had discovered that his padlock had been allegedly damaged by the complainant or PW2, the Accused Person neither handed over the damaged padlock to the police nor informed the investigating officer about the alleged damage to his padlock. 8. An analysis of the evidence by the prosecution on how vandalism to the complainant’s house was discovered when weighed against the Accused Person’s defence inevitably leads to the conclusion that the Accused’s alleged damage to his padlock was only an afterthought, which did not cast any reasonable doubt on the prosecution’s case on the circumstances under which the complainant’s house was vandalized. 9. The finding above also rules out the possibility of another person accessing the Accused Person’s house after the said house had been locked by the Accused Person’s and PW2’s padlocks. 10. The Accused Person, at least from the evidence on record, was the only person who used to stay in the complainant’s house. He is the only person who could explain how the electrical fittings in the complainant’s house were damaged. Unfortunately, instead of giving a reasonable explanation on how the said electrical fittings were damaged, the Accused Person just denied committing the offence herein. 11. This court has had the benefit of looking at the scene photos and the wiring quotation on record. The electrical fittings damaged in the complainant’s house are fittings that can be easily carted away in a bag without anyone knowing that someone is carting away anything from a house. This means that the Accused Person could easily cart away the vandalized electrical appliances from the complainant’s house without PW2’s knowledge, using the laptop bag he carried while leaving the complainant’s premises every morning. 12. It is against this backdrop that this court finds and holds that the Accused Person is the one who damaged the complainant’s property by vandalizing electrical appliances in the complainant’s house. 13. On whether the Accused Person’s damage to the complainant’s property was willful and unlawful, the evidence on record shows that the Accused Person’s damage to the complainant’s house was done without the complainant’s authority. Had the said damage been lawful, the complainant would not have reported this incident to the police for further and necessary action. 14. There is also nothing on record to suggest that the Accused Person was forced to damage the electrical fittings in the complainant’s house or that the Accused Person was under the influence of anything that impaired his judgment when he damaged the complainant’s property. 15. Given the reasons above, this court finds and holds that the Accused Person willfully and unlawfully damaged the complainant’s house. **The Accused Person’s Defence** 1. This court has already considered the Accused Person’s defence while determining whether the Accused Person was the perpetrator of the offence herein. This court dismisses the said defence for being a mere denial which did not cast any reasonable doubt on the prosecution’s case. **DETERMINATION** 1. The upshot of the foregoing is that theAccused Person is convicted under section 215 of the Criminal Procedure Code for the offence of malicious damage to property contrary to section 339(1) of the Penal Code. 2. Judgment accordingly. **Judgment read, signed, and delivered in open Court at Bungoma this 06th day of May 2026.** **T. O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Maroro for ODPP Accused Person C/A: Mr. Rioba