[2023] KEHC 23713 (KLR)

Tinega & another v Republic (Criminal Appeal E024 of 2022) [2023] KEHC 23713 (KLR) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23713 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E024 of 2022

WA Okwany, J

October 5, 2023

Between

Benjamin Orang’o Tinega

1st Appellant

Stephen Joseph Rioba

2nd Appellant

and

Republic

Respondent

(Being an appeal from the Judgment and Sentence in Criminal Case CMCC No. 913 of 2020 at the Chief Magistrate’s Court in Nyamira by the Hon. C.W. Waswa dated & delivered on 14th December 2022)

Judgment

1. The Appellants herein, alongside two others, were charged before the lower court with 3 counts as follows: -Count 1- Cutting down standing trees contrary to Section 334 (c) of the Penal Code. The particulars were that on diverse dates between 19th August 2020 and 21st September 2020 at Bombo village, Boisanga 1 Sub-Location in Nyamira North Sub-County within Nyamira Country, jointly with others not before court wilfully and unlawfully cut down exotic trees to wit 4,220 Eucalyptus Saligna (blue gum) trees on a parcel of land North Mugirango/Bomwagambo/1134 all valued at Kshs. 5,066,000/=, the property of Evans Nyaberi Achoki.Count 2 – Stealing contrary to Section 268 (1) as read with Section 275 of the Penal Code. The particulars of the charge were that on diverse dates between 19th August 2020 and 21st September 2020 at Bombo village, Boisanga 1 Sub-Location in Nyamira North Sub-County within Nyamira County, jointly with others not before court, wilfully and unlawfully cut down and stole exotic trees to wit 4,220 Eucalyptus Saligna (blue gum) trees on a parcel of land North Mugirango/Bomwagambo/1134 all valued at Kshs. 5,066,000/=, the property of Evans Nyaberi Achoki.Count 3 – The 1st, 2nd and 3rd Accused were charged with the offence of creating disturbance in a manner likely to cause a breach of the peace contrary to Section 95 (1) (b) of the Penal Code. The particulars being that on 19th August 2020 at Bombo village, Boisanga 1 sub-location in Nyamira North sub-County within Nyamira Country, jointly created disturbance in a manner likely to cause a breach of peace by chasing Evans Nyaberi Achoki while armed with pangas.

2. The Appellants pleaded not guilty to the 3 counts and the Prosecution later made an oral Application to amend the charge sheet so as to add a fourth count against the 1st Accused (1st Appellant) as follows: -Count 4 – Obtaining money by false pretences contrary to Section 313 of the Penal Code. The particulars of the charge were that on diverse dates between 13th June 2011 and 20th July 2011 at Boisanga 1 Sub-location in Nyamira North Sub-County within Nyamira Country, jointly with another not before court with intent to defraud, obtained from Evans Nyaberi Achoki a sum of Kshs. 1,500,000/= by falsely pretending that they were in a position to sell him a portion of land from land parcel No. North Mugirango/Bomwagambo/1134, a fact they knew to be false or untrue.

3. The case proceeded to a full trial where the Prosecution called a total of six (6) witnesses and produced 9 exhibits in support of its case.

The Prosecution’s Case 4. PW1, Evans Achoki Nyaberi, the complainant, testified that the Appellants herein, who are brothers, and their mother one Turusila Tinega sold the suit parcel No. 1134 comprising 5 acres to him on 13th June 2011 for the sum of Kshs. 1,500,000/=. They executed a sale agreement (P. Exh1) in this regard before an advocate whose legal fees was Kshs. 2,000/= (receipt for legal fees produced as P.Exh 2). He testified that he paid a deposit of Kshs. 650,000/= (P.Exh 3a) to the 1st Appellant’s account and later deposited a further Kshs. 500,000/= (P.Exh 3b) and Kshs. 200,000/= (P.Exh3c).

5. PW1 stated that he conducted a search of the suit land prior to the agreement which search revealed that the land in question belonged to one Joseph Tinega (deceased). He leased out the land soon after the said purchase but upon the expiry of the lease, he planted blue gum trees thereon. He stated that on 19th August 2020 about 50 people invaded his said land and cut down the trees. He reported the invasion to the police station at Ekerenyo who went to the scene and took photos of the damaged trees. He obtained a court Order to stop the Appellants from further cutting trees. He added that an Agricultural Officer assessed the damage done to the trees.

6. PW2, Charles Maina Saisi, witnessed the signing of the land sale agreement between PW1 and the said Turusila Tinega. He confirmed that he knew the Accused and the seller Turusila. He added that the 2nd and 3rd Accused were also present at the time the sale agreement was executed.

7. PW3, Eunice Nyaboke, the Complainant’s (PW1) wife, testified that she knew the first 3 Accused persons and that her husband purchased land from the 1st and 2nd Accused for the sum of Kshs. 1,500,000/=. She stated that she accompanied her husband to the suit land on 19th August 2020 at 8. 00 a.m. where they found about 50 people cutting down the trees with power saws. She added that she saw the 1st and 2nd Accused arranging trees at the scene as other people she did not know were cutting them down. They reported the matter at Ekerenyo Police Station.

8. PW4, Rael Nyamoita Nyatange, an employee of the Kenya Forest Services based at Nyamira County testified that she visited the suit land August 2020 and September 2020 to assess the damage arising from the trees that had been cut down. She assessed the damage at Kshs. 3,061,900/= but later received a report of further damage which she assessed at Kshs. 2,004,100/=. She produced the two reports (P.Exh 5 and 7).

9. PW4, No. 245366 PC Lucas Maina Mureithi, confirmed that complainant lodged a complaint over the felling of trees on the suit land. He testified that the seller was the mother of the 1st and 2nd Accused and that the land in question was about 5 acres. He arrested the Appellants and charged them before the trial court. He informed the court that the scene of crime officer took photos of the tress and prepared a report over the same. He visited the suit land and saw the tree stumps of the trees that had been cut down.

10. PW6, was the Scene of Crime Officer. He processed 12 photographs which depicted the trees that had been cut down. He produced the photographs as (P.Exh 8a), the films (P.Exh8b) and the Memory Card (P.Exh8c).

11. At the close of the Prosecution’s case, the trial court found that the Appellants had a case to answer and placed each of them on their defence. The 1st Accused elected to give an unsworn statement and did not call any witnesses, the 2nd Accused elected to give sworn evidence and called witnesses, while the 3rd and 4th Accused elected to give sworn evidence with no witnesses.

The Defence Case 12. The 1st Appellant admitted that he cut down trees but maintained that the said trees belonged to his brother Stephen Rioba Tinega’s (DW2). He denied the allegation that he stole the trees or chased anyone from the suit land. He further denied the claim that he sold the suit land to the Complainant or that he received money from the said complainant. He added that the money that the Complainant deposited in his account was for the purchase of murram and that he had documents to show that they bought the land from their mother Turusila who is the alleged Vendor in this case.

13. The 2nd Appellant testified that the land in question belongs to him. He denied the allegation that he cut down the Complainant’s trees. He confirmed that he instructed his brother (DW1) to cut trees on the suit land. He further testified that he obtained a court order to enable him cut down the trees. He denied the claim that he created disturbance and added that the suit land belonged to his uncle, one Daniel Almadus Rioba, as shown in the Green Card which he produced as (D. Exh3).

14. At the conclusion of the defence case, the trial court found the Appellants herein guilty and convicted them on the 1st and 2nd counts. The 1st Accused was also convicted on the 4th Count. The 3rd and 4th Accused were acquitted on all counts while all the Accused persons were acquitted on the 3rd Count.

The Sentence 15. The trial court then sentenced the Appellants as follows: -Count 1 – 1st and 2nd Accused to compensate the Complainant in the sum of Kshs. 150,000/= or to serve 3 years in prison in default.Count 2 - 1st and 2nd Accused to pay a fine of Kshs. 50,000/= or in default, to serve 1-year imprisonment.Count 4 - 1st Accused to compensate the Complainant the sum of Kshs. 1,350,000/= or in default to serve 5 years imprisonment.

16. Dissatisfied with the conviction and sentence, the Appellants filed the present Appeal through a Petition of Appeal dated 16th December 2022 wherein they listed the following grounds of appeal: -1. That the Learned Trial Magistrate erred in law and in fact by failing to hold that the Prosecution failed to prove their case to the required standards.2. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that the Complainant was civil whereas the Complainant had failed his obligation (sic).3. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate lack of legal nexus between the Complainant and the Accused as far as the cause of action was concerned.4. That the Learned Trial Magistrate erred in law and in fact by not considering the probative weight of the evidence of the Appellants.5. That the Learned Trial Magistrate erred in law and in fact in not finding that the Complainant neither owned the suit land nor granted the licence to meddle with it.6. That the Learned Trial Magistrate erred in law and in fact by not considering the fact that the Appellants were and still are witnesses in the agreement that is in contention and genesis of the trial of the Appellants.7. That the Learned Trial Magistrate erred in law and in fact by not requiring the seller in the impugned agreement to testify in the trial of the Appellants.8. That the Learned Trial Magistrate erred in law and in fact by meting upon the 1st Appellant an unlawful sentence.9. That the Learned Trial Magistrate applied wrong principles in convicting and sentencing the Appellants.

17. The Appeal was canvassed by way of submissions.

The Appellants’ Submissions 18. The Appellants’ Counsel Mr. Orina submitted on 6 issues namely: -a.Whether the complainant was ever put into ownership and possession of the parcel of land as alluded in the agreement;b.Whether or not the Appellants should pay the complainant compensation amounting to Kshs. 150,000/= each or in default serve a three-year sentence in prison;c.Whether the charge of stealing contrary to section 268 (1) was proved; whether or not the offence of obtaining by false pretence by the 1st Appellant was proved;d.Whether the sentencing of the 1st Appellant to serve 5 years imprisonment is sustainable when the law sets the maximum for a proved charge at three years; ande.Whether the conviction herein met the standard degree of beyond reasonable doubt.

19. On the issue of ownership of the suit land, it was submitted that the Appellants were merely witnesses to the sale agreement and that the vendor was the right party to shed light on the proprietorship. It was submitted that the Complainant did not pay the full purchase price and did not furnish any explanation as to when he took possession of the land.

20. Counsel submitted that even though the trial magistrate had jurisdiction to order for compensation, he ought to have taken notice of the civil proceedings in CMC ELC No. 69 of 2020 that was consolidated with ELC No. 70 of 2020 in respect of the suit property. The Appellants argued that the order for compensation will prejudice them in the civil suit.

21. Counsel noted that the 2nd Appellant’s position that the parcel of land from which the trees were harvested belonged to him was not controverted during the. He added that the 2nd Appellant demonstrated that he obtained a court order dated 10th September 2020 allowing him to harvest trees. It was submitted that the trial court did not direct that the said order be included as defence exhibit. He urged this Court to exercise its discretion and take judicial notice of the proceedings in Nyamira CMC ELC No. 71 of 2020 which yielded the Orders to permit the Appellants to cut trees on parcel No. North Mugirango/Bomwagambo/2636.

22. Regarding the charge of obtaining money by false pretence, it was submitted that the 1st Appellant was merely a witness to the sale agreement and not the seller of the suit land. The 1st Appellant maintained that he merely received the money on behalf of his mother who was the seller. Reference was made to the decision in Gerald Ndoho Minjunga vs. Republic, High Court at Nyeri, Criminal Appeal No. 213 of 2011 where Mativo J. (as he then was) cited the Botswana High Court decision in Lesholo & Another vs. the State in which the court outlined the parameters of proof for the charge of obtaining by false pretences.

23. It was also submitted that Section 313 of thePenal Codesets the maximum sentence of obtaining by false pretences at 3 years. The Appellants argued that the sentence imposed on them was therefore illegal and that the trial magistrate erred in imposing a fine of Kshs. 50,000/= for the offence of stealing when the law does provide for the option of a fine.

The Respondent’s (Prosecution’s) Submissions 24. The Respondent submitted that both the conviction and sentence were unsafe. Mr. Chirchir, learned Counsel for the state, noted that while the 1st and 2nd counts are alleged to have emanated from an alleged land sale dispute, evidence on record showed that the sale agreement was between the Complainant and the Appellants’ mother. According to counsel for the state, the said sale was unlawful as it was conducted contrary to the requirements of Sections 55 and 82 of the Law of Succession Act, which provide that immovable property of a deceased person can only be sold where a Grant has been confirmed. For these reasons, Counsel submitted that the Complainant could not enjoy the protection of property rights under the Constitution as described by Article 40 (6) of the Constitution.

25. It was submitted that the above position notwithstanding, it was not disputed that the trees in question belonged to the Complainant and that the Appellants cut them down despite the existence of an order of injunction from ELC 69 of 2020. He argued that the Appellants ought to be held accountable for their actions.

26. It was further submitted that the trial court’s findings on count 4 was erroneous as the parties to the sale agreement were well known and further, that family ties could not be a basis for concluding that the 1st Appellant was the principal offender to the crime of obtaining by false pretence. It was submitted that parties to the agreement conceded that succession proceedings had not been undertaken that the Complainant benefited from an illegality. Counsel urged this court to vary the conviction on the Count 4.

Analysis and Determination 27. It is trite that the duty of the first appellate court is to subject the entire evidence of the trial court to a fresh analysis and evaluation before arriving at its own independent conclusion while bearing in mind that it did not have the benefit of seeing or hearing the witnesses’ testimonies first hand. This principle was rehashed in Gabriel Kamau Njoroge vs Republic (1982 - 1983) 1 KAR 1134 where the Court of Appeal held thus: -“As this Court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the question of fact as on the question of law, to demand a decision of the court of the first appeal and as the court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard from the witnesses and make due allowance in this respect (see Pandya v. R. (1957) EA 336, Ruwala v. R. (1957) EA 570).”

28. It is incumbent upon this Court to re-examine the evidence tendered before the trial court. I have isolated the following issues for determination: -i.Whether the charge of cutting down trees contrary to Section 334 (c) of the Penal Code was proved to the required standard.ii.Whether the charge of stealing contrary to section 268(1) and (2) as read with Section 275 of the Penal Code was proved to the required standard.iii.Whether the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code was proved to the required standard.iv.Whether the sentences meted by the trial court were lawful and appropriate.

i. Cutting down trees contrary to Section 334 (c) of the Penal Code. 29. It is a well settled principle that the standard of proof in criminal cases is beyond reasonable doubt and that this burden of proof is solely vested on the Prosecution. (See Miller vs. Minister of Pensions[1947] 2 ALL ER 372, 373. )

30. The facts of this case reveal that the Complainant and the Appellants had an ownership over the suit land. A perusal of the sale agreement over the suit land (P. Exh1) shows that it was executed by the Complainant and one Turusila Joseph Tinega. It was not disputed that Turusila is the mother of the Appellants herein and that the Appellants were also witnesses to the said sale agreement. I also note that the land sale proceeds were deposited in the 1st Appellant’s account held in Equity bank.

31. Having noted the above undisputed facts, it did not escape this court’s attention that its jurisdiction is limited to determining the criminal element of the charges and not the issue of ownership of the land as that is the preserve of the Environment and Land Court. This court must therefore be cautious not to tread within the territory of the Environment ant Land Court. I am guided by the decision in Samuel Kamau Macharia v. KCB and Others [2012] eKLR Supreme Court of Kenya Application No.2 of 2011, where the Supreme Court held as follows:- -“A Court’s jurisdiction flows from either the Constitution or Legislation or both. Thus, a Court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law………the Court must operate within the constitutional limits. It cannot expand jurisdiction through judicial craft or innovation.”

32. Article 165 of the Constitution defines the boundaries of the High Court’s jurisdiction as follows: -(5)The High Court shall not have jurisdiction in respect of matters—a.reserved for the exclusive jurisdiction of the Supreme Court under this Constitution; orb.falling within the jurisdiction of the courts contemplated in Article 162 (2).

33. Article 162 (2) provides for the creation of the Environment and Land Court and states thus: -162. System of Courts(2)Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—a.employment and labour relations; andb.the environment and the use and occupation of, and title to, land.

34. The import of the above cited provisions is that this Court cannot address itself on the issues of legality of the sale of the suit parcel and the subsequent ownership of the parcel since it lacks jurisdiction on land matters. The above finding notwithstanding, I find that the charge of cutting down trees is within this Court’s jurisdiction.

35. I have considered the evidence tendered by the Prosecution with respect to the events of 19th August 2020. PW1 testified that he found about 50 people cutting down his trees on the disputed land. This evidence was corroborated by PW3, PW4, PW5 and PW6 who either witnessed the cutting down of the trees or saw the destroyed trees and their stumps still rooted on the ground. It was also established that the trees in question belonged to the Complainant who testified that he planted them immediately after buying the land.

36. I have considered the evidence presented by the prosecution alongside the defence by the Appellants. The Appellants claimed that the trees belonged to them because they were on their land. DW1, (1st Appellant) admitted that he cut down trees but stated that they belonged to his brother. DW2 (2nd Appellant) stated that the trees belonged to him because they were on his land. In other words, the Appellants sought to justify the cutting of the trees. It was therefore not disputed that the trees were cut down.

37. I find that the Appellants cunningly opted to justify the cutting down of the trees under the guise of an alleged unresolved land dispute. It is noteworthy that the Appellants did not deny that the Complainant planted the trees in question. They did not tender any evidence to show that they actually planted the trees in question.

38. I have also considered the damage assessment reports (P. Exh5 and 7) which indicate that the trees had been growing on the suit land for 5 and 9 years. The age of the trees is an indication that if, for argument’s sake, the Appellants’ claim that the suit land belongs were to be true, then it would follow that they willingly allowed the Complainant to enter onto their land and plant the trees. I note that the Appellants did not restrain the Complainant from entering the suit land to plant the trees. They instead waited until the trees were mature before cutting them down. To my mind, this means that they acted maliciously in order to deny the Complainant his right/opportunity to harvest and gain profit from the trees. Their actions also violated the Court Order issued on 27th August 2020 in CMC ELC 69/22020 stopping them from cutting down of the trees.

39. Counsel for the Appellant urged this Court ought to take judicial notice of the proceedings in CMC ELC 71 of 2020 wherein the Appellants allegedly obtained orders dated 10th September 2020 to enable them cut down trees on the suit land. A perusal of the trial court’s Record however reveals that besides merely mentioning that the Appellants obtained orders to cut down trees, no such order was produced as an exhibit at the hearing. I also find it unusual that the Appellants could obtain a court order to cut down trees on their own land as was alleged. It is my further finding that the fact that the Appellants allegedly obtained court orders to cut down trees on their own land implies that the trees in question may not have been their property in the first place.

40. It a nutshell, it is my finding that the Appellants wilfully and unlawfully cut down Complainant’s trees. I therefore uphold the conviction by the trial court on the first count.ii.The charge of stealingf.Section 268(1) and (2) of the Penal Code stipulates as follows: -268. Definition of stealing1. A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.2. A person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say—a.an intent permanently to deprive the general or special owner of the thing of it;b.an intent to use the thing as a pledge or security;c.an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;d.an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;e.in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner;3. ....................4. ................5. A person shall not be deemed to take a thing unless he moves the thing or causes it to move.

41. Section 275 of the Penal Code provides for the punishment for the offence of stealing as follows: -275. General punishment for theftAny person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishment is provided, to imprisonment for three years.

42. In order to prove the offence of stealing, the Prosecution is required to establish that the item in question is capable of being stolen or converted to the use of a person who is not its owner. It must also be proved that the item was taken away or moved away from the rightful owner into the possession of another person. As I have already found in this judgment, the trees in question belonged to the Complainant. The said trees were capable of being moved once they were cut down. I however note that the prosecution did not tender evidence to show that Appellants unlawfully carried/moved the trees from suit land to another location. None of the witnesses testified that they saw the Appellants or their agents cart away the trees. PW3, the Complainant’s wife, testified that she only saw the Appellants arranging the trees that had already been cut down at the site. It is therefore my finding that the charge of stealing was not proved as the cut trees were not relocated or given into the possession of another person.

43. I therefore quash the conviction of the Appellants on the second count of stealing contrary to section 268 (1) (2) as read with section 275 of thePenal Code.

iii. Obtaining money by false pretences 44. Section 313 of the Penal Code defines the offence of obtaining money by false pretences as follows: -313. Obtaining by false pretencesAny person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a misdemeanour and is liable to imprisonment for three years.

45. The ingredients of this offence were stated by the Supreme Court of Nigeria in Dr. Edwin Undemegbunam Onwudiwe vs. Federal Republic of Nigeria (2006) LCN/3482 (SC 41/2003) as follows: -“In order to succeed in a charge of obtaining by false pretences, the prosecution must prove: -a.that there is a pretence;b.that the pretence emanated from the accused person;c.that it was false;d.that the accused person knew of its falsity or did not believe in its truth;e.that there was an intention to defraud;f.that the thing is capable of being stolen;g.that the accused person induced the owner to transfer his whole interest in the property.The offence could be committed by oral communication, or in writing, or even by conduct of the accused person. However, an honest believe in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretence. The above adequately presents the law as in the Penal Code.”

46. In the present case, the Prosecution conceded that the conviction on this charge was unsafe. The trial court held that the 1st Appellant unlawfully obtained money by false pretence alongside his mother under the pretext that his mother would sell the suit property, knowing fully well that the property was not in the name of his mother Turusila.

47. Section 312 of the Penal Code defines false pretence as follows: -312Definition of false pretenceAny representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence.

48. I have perused the sale agreement (P. Exh1) which states as follows at Clause 6 thereof: -6. The Vendor and the Purchaser have agreed to make arrangements for succession process to meet the legal requirements in order to cause transfer of the said property to the purchaser.

49. The above clause connotes that the parcel of land was sold to the Complainant in the presence of the Appellants who only acted as witnesses. The clause also indicates that the suit land was not registered in the name of the Vendor Turusila Tinega at the time of the said agreement thereby necessitating an agreement for the facilitation of the succession proceedings. This means that at no given time did the Vendor or her witnesses misrepresent themselves or give false information regarding the ownership of the suit land with the intent to commit fraud. In any event, if such an intention existed, which was not the case herein, the same could only be attributed to the vendor and not the Appellants who merely witnessed the transaction. In the same vein, I find that the mere fact that payment of the purchase price was channelled through the 1st Appellant’s bank account did not connote that he was a beneficiary of the proceeds of the said sale. I therefore find that the 1st Appellant cannot be faulted for obtaining money by false pretence as he was not a party to the sale agreement.

50. Consequently, I find that the charge of obtaining by false pretences was not proved to the required standard. I therefore quash the conviction and set aside the sentence imposed on the 1st Appellant in respect to the 4th Count.

iv. Sentence 51. The Appellants submitted that the sentence meted by the trial court was illegal and unfounded in law. Having upheld the Appellants’ conviction on the first count only, I will address myself to sentence only in respect to the said count.

52. Punishment for offence of cutting down trees is provided for under Section 334 of the Penal Code which stipulates as follows: -334. Any person who wilfully and unlawfully sets fire to, cuts down, destroys or seriously permanently injures –a.A crop of cultivated produce, whether standing, picked or cut; orb.A crop of hay or grass under cultivation, whether the natural or indigenous product of the soil or not, and whether standing or cut; orc.Any standing trees, saplings or shrubs, whether indigenous or not, under cultivation; is guilty of a felony and is liable to imprisonment for fourteen years.

53. Section 66 (1) of the Interpretation and General Provisions Act (Cap 2 Laws of Kenya) states as follows on the meaning of the term ‘liable’:-Where in a written law a penalty is prescribed for an offence under that written law, that provision shall, unless a contrary intention appears, mean that the offence shall be punishable by a penalty not exceeding the penalty prescribed.

54. The above provision means that where the law states that a person shall be ‘liable’ to a particular sentence, that sentence will be the maximum sentence that a court can impose upon conviction. This means that a court may consider a lesser sentence than the one stipulated by law.

55. InOpoya vs. Uganda[1967] EA 752 the words “shall be liable” were explained at page 754 paragraph B thus: -“It seems to us beyond argument the words “shall be liable to” do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it”.(See also Court of Appeal decision in Daniel Kyalo Muema vs. Republic [2009] eKLR.)

56. The decision in the above cited case confirms that the trial court was at liberty to impose a sentence not exceeding 14 years’ imprisonment on the charge of cutting down trees. In the present case, the Appellants were each sentenced to compensate the complainant in the sum of Kshs. 150,000/= or in default, to serve 3 years imprisonment.

57. It is trite that an appellate court will not ordinarily interfere with a sentence passed by the trial court because sentence is at the discretion of the trial court. The East African Court of Appeal held as follows in Ogolla s/o Owuor (1954) EACA 270: -“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v. R (1950) 18 EACA 147, ‘it is evident that the Judge has acted upon some wrong principle or overlooked some material factor.’ To this we would add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case......”

58. The record reveals that there is an ongoing civil suit in respect to the same suit property in Nyamira CMC ELC No. 69 of 2020 where the Complainant herein seeks compensation from the Appellants for damage done to the trees. It is my view that existence of the civil case did not preclude the trial court from making an order for compensation. I therefore uphold the sentence imposed on the Appellants in respect to Count 1.

59. In the end, I find that the Appeal is merited, albeit in part, in respect to the conviction and sentence in respect to counts 2 and 4. I therefore make the following final orders: -i.I uphold the trial court’s conviction and sentence in respect to Count 1 being cutting down standing trees contrary to Section 334 (c) of the Penal Code.ii.I quash the conviction and set aside the sentence of the Appellants in respect of Count 2 being stealing contrary to section 268 (1) as read with section 275 of thePenal Code.iii.I quash the conviction and set aside the sentence of the 1st Appellant in respect of Count 4 being obtaining money by false pretences contrary to section 313 of the Penal Code.iv.I direct that any sum of money which may have been paid as fines or compensation in respect of Counts 2 and 4 be refunded to the Appellant(s).

60. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 5TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE