Republic v Wanu (Criminal Case E128 of 2026) [2026] KEMC 485 (KLR) (23 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE MAGISTRATE COURT OF KENYA AT MURANGA COUNTY COURT NAME: MURANGA MAGISTRATE COURT CASE NUMBER: MCCR/E128/2026 REPUBLIC VS ELIJAH WANU JUDGMENT 1. The particulars of the charges against, Elijah Wanu, the accused in this matter, are that on 1st February 2026 at around 1200 hours at Ndurumo village, Kiangochi sublocation, Muchungucha location, Murang’a east sub county, within Murang’a county, he wilfully and unlawfully damaged two water pipes of 8 inches each valued at Kshs. 28,000/= the property of Gathuka Water Project. 2. The assistant chief Gacharu Sub location, Simon Muru Munyua (PW1) testified that on 2nd February 2026 at about 8:00 a.m., he got a call from the care taker of GATHUKA irrigation project informing him that the pipes installed for use in the project were missing. Thinking it was a case of theft, PW1 asked the caretaker to report the incident at Kiangochi police patrol base and announced the incident to members of his jurisdiction in a *baraza*. 3. Members of the water project decided to replace the missing pipes on 5th February 2026. However, when they arrived at the site, the accused intercepted the members and warned them against completing the re-installation of the pipes. Salome Njeri Mwangi (PW2) and Kenneth Kyalo Wangui (PW4) were present when the accused had the altercation with the members of the irrigation project that day. PW2 testified that on that day, the accused had informed them that he had removed the pipes earlier. He also threatened to cut them with his *panga* and remove the pipes again, if the members went on with the re-installation. PW2 informed the court that pipes that were used in the irrigation project ran through the accused’s farm but he was not able to use water from the project as the water flowed downwards, away from the accused’s parcel of land which was on the upper part of the project. 1. When PW1 received information about the exchange between the accused and the members of the water project, he proceeded to the site and kept guard as the members completed the repair works. Subsequently, PW4 reported the matter to Kiangochi patrol base. The matter was taken up by SGT Kennedy Mbithi Musanyi (PW3) who testified that the 2 pipes of 3 meters by a diameter of 8 inches that had been removed from the water intake were recovered intact from the accused’s house. PW2 and PW3 also testified the accused had entered into an agreement with the water project’s contractor, Machine Center Limited, for a wayleave onto his land to install the water project’s water pipes on his land. 2. In his defence, the accused refuted the claim that he had damaged water pipes belonging to GATHUKA water project. He however conceded that he had a long-standing dispute with members of the water project for installing the water pipes on his land. In his estimation about 5 feet of his land was covered by installation. He had asked for access to water for 2 years to no avail. The accused claimed that water project restricted his access to the river. He insisted that there had been no agreement for the water pipes to go over his land. 3. Paul Njau Chomba (DW2) a resident of Gacharu testified that the intake in question belonged to GIKINDU irrigation water project and not GATHUKA water project. He claimed that Gikindu had built the water intake but did not have a way leave. Anytime they wanted to carry out maintenance works on the installation, they would seek permission from the accused as the water intake was in his land. He explained that the water intake’s wall was about 60 feet long and 30 feet wide. He testified that he had attended meetings to attempt to resolve the dispute between the members of the project and the accused, but the accused was never supplied with water from the project despite earlier agreements. # ISSUES, ANALYSIS AND DETERMINATION 1. The accused person has been charged with the offence of malicious damage to property contrary to **Section 339** of the **Penal Code** which provides; *“339 (1) Any person who willfully and unlawfully destroys or damages* *any property is guilty of an offence, which, unless otherwise stated, is a misdemeanor, and is liable, if no other punishment is provided, to imprisonment for five years.”* 1. To establish the offence of malicious damage to property the prosecution must establish; 1. *proof of ownership of the property;* 2. *proof that the property was destroyed or damaged;* 3. *proof that the destruction or damage was occasioned by the accused; and* 4. *proof that the destruction was willful and unlawful.* 2. In this case, it is alleged that the accused person destroyed two water pipes measuring 8 inches each valued at Kshs. 28,000/= belonging to Gathuka Water Project. The prosecution relied on circumstantial evidence to prove the charges against the accused as none of the witnesses saw the accused damage the water pipes. 3. PW2 and PW3 testified that when members of the water project realized that the two water pipes had been removed from the water intake, they got replacements and proceeded to the site to re-install the pipes. The accused intercepted the repair works and informed members of the group that he had removed the pipes and warned them against re-installing the pipes lest he harm them. 4. From their evidence, it was clear that neither PW2 nor PW3 saw the accused remove the pipes from the water intake site. The prosecution relied on the retrieval of pipes from the accused’s home to prove its case. It was the evidence of PW3 that when the altercation between the accused and members of the irrigation group was reported, he went to the accused’s home and retrieved the pipes from his home. 5. Crucially, the water pipes or photographs of the water pipes were not produced in court. It was in fact the evidence of the prosecution witnesses that the water pipes were still intact and in the custody of the police. None of them claimed that the water pipes had been damaged in any way. 6. The prosecution was also required to prove that the water project belonged to GATHUKA water project. In his testimony, PW1 informed the court that the water project was an acronym of the areas covered by the project being, Gacharu, Thunde and Kanjagi. He testified that the project had been funded by the National Irrigation Board for Gikindu location. No documents were produced to establish these claims or that the water pipes were owned by the GATHUKA water project. What was produced before the court was an agreement between the accused and the contractor of the project, Machine Center Limited. The agreement dated 26th November 2020 indicated that the contractor was undertaking the construction of GIKINDU irrigation scheme. 1. According to DW2, a resident of the area, the water project belonged to Gikindu irrigation water project. PW1 also testified that the project was funded for Gikindu location. Given their testimonies and the copy of the agreement produced before this court, it is impossible to establish with certainty whether the pipes removed from the water project belonged to GATHUKA water project. 2. A wholistic analysis of the prosecution’s case shows that ingredients that constitute the offence of malicious damage to property were not proved. It was not established that the two water pipes allegedly damaged belonged to GATHUKA water project. It was also not proved that the pipes were damaged or that the damage had been occasioned by the accused lawfully or otherwise. 3. Before I conclude, it would be remiss of me not to point out that the dispute between the accused and the members of the water project is essentially a civil dispute. Based on evidence given by the prosecution witnesses, it would appear that the installation of the water project was undertaken without fair compensation to the accused. All prosecution witnesses conceded that the irrigation water pipes and the water intake are situated in the accused’s parcel of land. In particular, PW1 testified that the agreement produced in court merely gave the contractor of the project, Machine Center Limited, access to the accused’s land parcel Loc. 11/Muchungucha/2405 for the duration of project. There was no evidence adduced before this court to demonstrate that an easement or other agreement had been entered into between the accused and the owners of the water project. 4. The court further notes the admission by the prosecution witnesses that the accused does not benefit from the water project. It also takes note that the accused’s access to water has been curtailed by the irrigation infrastructure installed on his land. These facts stand in sharp contrast with the accused’s right to property as enshrined under **Article 40** of the **Constitution**. This is a matter that ought to have been resolved before the environment and land court or other forum with the requisite jurisdiction to deal with the matter conclusively. 1. In the end, this court finds no merit in the prosecution’s case. The accused is acquitted of the charges and set at liberty unless otherwise lawfully held. # DATED, SIGNED AND DELIVERED AT MURANG’A THIS 23RD DAY OF JULY 2026. **HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE** **JUDGMENT READ IN OPEN COURT IN THE PRESENCE OF; C/A JEREMIAH** **MR. MWANGI FOR THE ACCUSED ACCUSED IN PERSON** SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. GRACE WAITHIRA** Muranga Magistrate Court Magistrate Court Date: 2026-07-23 14:12:50