[2016] KEHC 6047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITUI

CRIMINAL APPEAL NO. 60 OF 2015

(CONSOLIDATED WITH HCR.A NO. 101 OF 2015)

WAMBUA KAMETA................................……...……..1ST APPELLANT

MUTISYA KAMETA...................................................2ND APPELLANT

VERSUS

REPUBLIC ……………….......……………….…………… RESPONDENT

(Being an appeal from the original conviction and sentence in Mutomo Senior Resident Magistrate’s Court Criminal Case No. 225 of 2013 by Hon. Z. J. Nyakundi Ag. P M on 11/08/14)

J U D G M E N T

Wambua Kameta(1st Appellant) and Mutisya Kameta(2nd Appellant) were charged with two (2) counts:

Malicious Damage to Propertycontrary to Section 339(1)of the Penal Code.Particulars of the offence were that on diverse dates between 31st August, 2013and 1st September, 2013at unknown time, at Uini Villageof Athi Locationin Ikutha Districtwithin Kitui Countywillfully and unlawfully damaged Terraces, Grazing area, Maize Stoopers and Fence of Peter Nzukiall valued at Kshs. 56,725/=.

Cutting down treescontrary to Section 334(c)of the Penal Code.Particulars of the offence were that on diverse dates between 2nd September, 2013and 3rd September, 2013at unknown time, at Matinga Villageof Athi Locationin Ikutha Districtwithin Kitui Countywillfully and unlawfully cut down trees valued at Kshs. 91,364/=the property of Moses Ndunda Kyungu.

Having denied the charges they were subjected to trial. Both appellants were found guilty and convicted on the 1st count and fined Kshs. 10,000/=.In default of payment of the fine they were required to serve three (3) years imprisonment.The 2nd Appellant was acquitted of the second count, while the 1st Appellant was convicted and fined Kshs. 10,000/=.Similarly, in default of payment of the fine he was required to serve three (3) years imprisonment.The sentences were to run consecutively.

Being dissatisfied with the conviction and sentence thereof the Appellants appealed on grounds that:

Selective bits of the evidence was applied in convicting the Appellants while exonerating evidence was disregarded.

Evidence of the Agricultural Officer an expert was disregarded thereby the Appellants being convicted on inadmissible evidence.

No evidence of ownership of respective properties was adduced in evidence to sustain a conviction.

The defence of alibitendered by the 1st Appellant was dismissed without any consideration.

The case as presented by the Prosecution was that on 30th August, 2013, Peter Nzukithe Complainant in the first count assigned PW3, Mangee Musyokasome casual work of digging terraces. On 31st August, 2013he found the area he had worked on having been filled up. He found the Appellants and others filling up the terraces. He informed PW1 who in turn notified Richard Mulwa Kiema,PW5, the person who sold to him that portion of land. When he went to the land he found the Appellants erecting thereon a fence. They reported the matter to the area Chief and subsequently to the Police.

PW2, Moses Ndunda Kyongothe Complainant in the second count on the other hand was called by PW4 Nzomo Ndonyewho notified him that people were cutting down his trees. He moved to the portion of land and found the Appellants cutting trees. He went back the following day, on the 3rd September, 2013and found them with other people cutting trees. A week later he reported to PW6, Munyalo Makau,the District Forest Officer who assessed the damage done and prepared a report thereof. The Appellants were arrested and charged.

When put on their defence the 1st Appellant denying having committed the offence stated that he was away in Mombasafrom January, 2013. He returned on the 5th September, 2013.

The 2nd Appellant stated that they keep domestic animals. September was a dry season, the animals which are left to graze on their own destroyed the terraces and maize. He denied having either damaged terraces or cut trees on the second Complainant’s farm.

The learned trial magistrate considered evidence adduced and reached a finding that there was evidence of destruction of pasture and other produce by the Appellants as the owners of the cows that damaged the crop were the persons liable. With regard to the 2nd count he found that the 1st Appellant was one of the persons who cut down the trees, hence convicting them.

This being the first appellate court, I am duty bound to re-consider the evidence, re-evaluate it and come to my own conclusion bearing in mind the fact that I never had an opportunity of either seeing nor hearing witnesses who testified. (See Okeno vs. Republic (1972) EA 32).

In count I the Prosecution had a duty of proving beyond any reasonable doubt that:

The property in issue was damaged by the accuseds.

It was done willfully and unlawfully.

According to charge sheet, the offence is alleged to have been committed on diverse dates between 31st August, 2013and 1st September, 2013. Evidence adduced was that PW3 went to the farm on 31st August, 2013on which he had dug terraces on the 30th August, 2013and found them filled up. He found the Appellants and others in the act of filling them up. On cross examination however he stated that he was assigned a job of digging a foundation for a house which was filled up. He denied having seen the Appellant destroying pasture.

PW7 Reuben Maleve,the Animal Production Officer visited the farm and did the assessment. The nature of damage he noted was caused by animals. Pegion peas plants were browsed and trampled on by animals, the nature of damage that he considered serious. The terraces were destroyed; the grazing area was damaged, maize stoovers were consumed. The fence was destroyed. He alluded the destruction to be damage done by animals because animal hoof prints and droppings were evident on the farm.

His evidence contradicted that of PW3 who alleged that he saw the Appellants damaging the properties. It was upon that basis that the learned trial magistrate found that since the cows did the damage the owner of the animals was the person liable.

No evidence was adduced of animals having been seen causing the damage by witnesses who testified. PW3 claimed that the Appellants were filling up the terraces he had dug. These as admitted on cross examination was for the foundation of the house he was digging for PW1. The expert, PW7 however stated that the terraces were destroyed by animals.

In the case of Raible vs. The State 1991 BLR 315 (HC) Botswana elaws,it was held:

“The mansrea of the offence created by the Section is expressed in the words “Willfully and Unlawfully”. The injury to the property should not only be willful but it should also be unlawful. The ordinary meaning of willful is “deliberate” or “intentional”. When the act is said to have been done unlawfully it means that it was done deliberately and intentionally not by accident or inadvertence”.

PW3 having not alluded to any animals which did the damage as found by PW7 would be a suggestion that he did not see the persons who did the actual damage to the portion of land in issue. There is therefore no evidence as to who owned the animals that did the damage in issue, therefore it cannot be established whether or not the damage caused was done deliberately or intentionally.

With regard to the 2nd count the 1st Appellant was convicted for cutting down trees the property of Moses Ndunda.The Prosecution had a duty of proving that the Complainant owned trees that were cut down. And the act of cutting them was done willfully and unlawfully.

In his evidence PW4 Nzomo Ndonyestated that he found Wambua Kameta(1st Appellant) Kametaand Mulwa Mwakavicutting trees. PW2 who was called said he saw the 1st Appellant and others cutting down trees.

Claiming ownership of the land in issue, he stated that he inherited it. He revealed that there was a land dispute between him and Anna Kameta who had encroached on his land.

PW6 Munyalo Makao,the District Forest Officer did an assessment of damage caused. Per his report to the Chief – (For Moses Ndunda Kyungu)he gave the extent of the damage caused on trees (Acacia species). However on cross examination he stated that he did not establish ownership of the land. He said that he found the trees having been cut “long ago”. How long ago the trees had been cut was not stated.

A land dispute having existed between the Complainant and the family of the Appellants’ mother, it was important for the Prosecution to prove ownership of the trees that were allegedly cut down. This having not been done, it was not proved whether or not the alleged trees were the Complainant’s property.

In the premises it was unsafe for the trial court to convict the Appellant on evidence adduced. Therefore the appeal is meritorious. The conviction is quashed and the sentence imposed set aside. The fine imposed if paid, shall be refunded forthwith.

It is so ordered.

Dated, Signedand Deliveredat Kituithis 11thday of February,2016.

L. N. MUTENDE

JUDGE