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(Being an Appeal from the Judgment and conviction delivered on 30th September, 2024 by Hon. Caroline A. Ocharo (Chief Magistrate) in Kisii Chief Magistrate’s Court Criminal Case E 780 OF 2022
The appellant filed the appeal herein against the judgment of Hon . Hon. Caroline A. Ocharo (Chief Magistrate) in Kisii Chief Magistrate’s Court Criminal Case No, E780 OF 2022 dated 30.9.24. The memorandum of appeal listed the following grounds ;
a.That the learned magistrate erred in law and fact by delivering a judgment which was not reflective of the facts presented by the parties.
That the learned Magistrate erred in law and fact by failing to appreciate the law as it relates to burden of proof required in proof of criminal cases.
That the learned magistrate erred in law and fact by failing to find a doubt in favour of the appellant on the face of glaring contradictions of prosecution witnesses.
That the learned magistrate erred in law and fact by failing to appreciate that the offence of malicious damage to property had not been proved beyond reasonable doubt against the appellant.
That the learned magistrate erred in law and fact by failing to consider the appellant’s defence.
That learned magistrate erred in law by concluding that the house had been demolished by the Appellant.
That learned magistrate erred in law and fact by failing to consider the tools of demolition were never produced as Exhibit.
That the learned magistrate erred in law and fact by failing to find that the house was demolished by a different person.
That the learned magistrate erred in law and fact by relying on uncorroborated evidence.
That the learned magistrate erred in law and fact by being out rightly biased and prejudicial to the appellant in the manner she treated the case as a dispute between the 1 st and 2 nd house.
That the learned magistrate totally failed to exercise her discretion judicially by failing to give the appellant an option to pay the fine since the complainant had quantified the damage to a tune of Kshs.100,000.
That the learned magistrate erred in law and fact by imposing a custodial sentence without any option of a fine or probation having not called for a probation report in the first place.
Prosecution conceded to the appeal on the grounds that the appellant was not properly identified as the pw2 said he first saw the witness in the year 2011and there was no corroborating witness . Also that PW3 said that one Musaisi was hired to demolish the house .
Even though the state has conceded to the appeal , this court still has a duty to re-evaluate the entire evidence on record and come to it’s own independent conclusion bearing in mind that it had no occasion to see the witnesses or hear their testimonies as was held in the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record, submissions and the concession by the state . Section 339(1) of the Penal Code provides:-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.
In the case of Dominic Mutisya Kasini v Republic [2019] KEHC 4279 (KLR) , it was held that ‘’ 20. With regard to the offence that the appellant was charged with, and as specified in the charge sheet, the prosecution was under the law required to prove beyond reasonable doubt the following ingredients of the offence of malicious damage to property contrary to section 339 (1) of the penal Code;
(a) The property belonging to the complainant was damaged or destroyed.
(b) That the said property was damaged or destroyed through willful and unlawful actions.
(c) That the property in issue was damaged or destroyed by none other than the accused person in the dock.
‘’
The ingredients of Malicious damage to property under section 339 of the penal code are as follows ;
Ownership of the property
The property must have been demolished .
The demolition was wilful and unlawful .
It is the accused who demolished the same damaged property.
Whether the value of the damaged property was proved
On whether the learned Trial magistrate failed to consider the defence case.
On the issue of ownership. it has been admitted that the property belonged to a deceased person and succession cause had not been concluded . PW3 and appellant both agree that there is an dispute on distribution. Ownership has thus not passed from the deceased to any of the parties herein. in any event, PW1 admitted that she built the damaged house on that land after deceased passed on . PW1 admitted that she built the damaged house on that land after deceased passed on . This borders on intermeddling with the estate of the deceased under Section 45 of the Law of succession Act as she had not acquired letters of administration or authourity of the court to put up the said house on the land belonging to deceased. The complainant has thus not proved that she owns the land where the house laid .
On whether the property was demolished , it is not in dispute that the property was demolished.
On whether the demolition was wilful or unlawful not evidence was availed to prove this .
On whether the appellant is the one who damaged the property , Pw2 said he saw appellant with a hammer at the scene but he could not tell how he was he was dressed or how the hammer was used and investigating officer did not give a satisfactory reasons as to why he why the hammer was not recovered . Also that there were also many people at the scene and that some had pangas and jembes . A jembe is not a tool which cannot be used to demolish a timber house . PW1 said he first saw appellant in the year 2011 in a funeral but he did not say if at all they interacted thereafter .Also considering that the appellant said in his defence that he lives in Nairobi and he used to work for KRA and the he first saw him in a funeral and that on the material day there was a crowd demolishing the house it was important that PW2 says how he specifically identified the accused at the scene . There was no attempt by PW2 to even describe the clothes appellant was wearing which made him pick him from his alleged accomplices . PW2 was a nephew to PW1 and thus he is not an independent witness. It has emerged that many people witnessed the incident and that the family of complainant and the appellant . It was important that an independent witness be availed due to the succession dispute between the said two families a fact even admitted by PW3 , the investigating officer (Pw5) and appellant and Dw1 in their testimonies . Though the learned the trial Magistrate held that appellant was Known to PW2 and he had motive to demolish the house , tis is not supported by the evidence on record . I find that the appellant was not properly placed at the scene .
On the value of the damaged property , Pw1 said she does not know the value of the house. The investigating officer put the value of Kshs. 100,000/= as per the charge sheet and he said he got the value from Pw1. This contradicts the evidence of PW1 and thus the source of his information is not credible. The value of the damages property was thus not proved.
Contradictions
Defence also pleaded and submitted that the learned trial magistrate ignored material contradictions and inconsistencies . PW1 said that she said her children Jasper and Caroline to the scene and they found appellant arranging the materials .On cross examination she said Dennis saw accused arranging the items . On his part Denis (Pw1) said he found the demolition on going . Caroline (Pw3 ) said he did not witness the demolition. Pw3 said they went to the scene a day later and then reported the case to the police . she said that she did not witness the incident. This . inconsistent with what the mother told the court. The said inconsistencies are material and go to the root of the credibility of the witnesses case.
On the value of the damaged property , Pw1 said she does not know the value of the house. The investigating officer put the value of Kshs. 100,000/= as per the charge sheet and he said he got the value from Pw1. This contradicts the evidence of PW1 and thus the source of his information is not credible. The value of the damages property was thus not proved.
On whether the learned Trial magistrate failed to consider the defence case Appellant denied demolishing the said house ,Dw1 the mother to appellant told the court that she not the appellant is the one who hired one Musaisi to demolish the house which was on her land . No reason was given by the Learned Trial Magistrate for rejecting this clear evidence of Dw1. I agree with the state that it is Dw1 admitted that she is the one who demolished the house as per her testimony which was not impeached and was corroborated by the appellant and Dw3.
The evidence adduced by the defence cast serious doubts on the prosecution’s case against the appellant. This court can clearly see the shadow of the succession dispute between the parties in this case. The case was thus not proved beyond any reasonable doubt as required.
I proceed to quash the conviction and sentence of the appellant .
T.A ODERA
JUDGE
14.10.25
DELIVERED VIRTUALLY IN THE PRESENCE OF APPEALLANT , HIS COUNSEL MISS ONDURU HOLDING BREIF FOR HON BEN MOMANYI FOR ACCUSED, MR KOIMA FOR PROSECUTION AND CA KIPCHICHIR
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(Being an Appeal from the Judgment and conviction delivered on 30th September, 2024 by Hon. Caroline A. Ocharo (Chief Magistrate) in Kisii Chief Magistrate’s Court Criminal Case E 780 OF 2022
The appellant filed the appeal herein against the judgment of Hon . Hon. Caroline A. Ocharo (Chief Magistrate) in Kisii Chief Magistrate’s Court Criminal Case No, E780 OF 2022 dated 30.9.24. The memorandum of appeal listed the following grounds ;
a.That the learned magistrate erred in law and fact by delivering a judgment which was not reflective of the facts presented by the parties.
That the learned Magistrate erred in law and fact by failing to appreciate the law as it relates to burden of proof required in proof of criminal cases.
That the learned magistrate erred in law and fact by failing to find a doubt in favour of the appellant on the face of glaring contradictions of prosecution witnesses.
That the learned magistrate erred in law and fact by failing to appreciate that the offence of malicious damage to property had not been proved beyond reasonable doubt against the appellant.
That the learned magistrate erred in law and fact by failing to consider the appellant’s defence.
That learned magistrate erred in law by concluding that the house had been demolished by the Appellant.
That learned magistrate erred in law and fact by failing to consider the tools of demolition were never produced as Exhibit.
That the learned magistrate erred in law and fact by failing to find that the house was demolished by a different person.
That the learned magistrate erred in law and fact by relying on uncorroborated evidence.
That the learned magistrate erred in law and fact by being out rightly biased and prejudicial to the appellant in the manner she treated the case as a dispute between the 1 st and 2 nd house.
That the learned magistrate totally failed to exercise her discretion judicially by failing to give the appellant an option to pay the fine since the complainant had quantified the damage to a tune of Kshs.100,000.
That the learned magistrate erred in law and fact by imposing a custodial sentence without any option of a fine or probation having not called for a probation report in the first place.
Prosecution conceded to the appeal on the grounds that the appellant was not properly identified as the pw2 said he first saw the witness in the year 2011and there was no corroborating witness . Also that PW3 said that one Musaisi was hired to demolish the house .
Even though the state has conceded to the appeal , this court still has a duty to re-evaluate the entire evidence on record and come to it’s own independent conclusion bearing in mind that it had no occasion to see the witnesses or hear their testimonies as was held in the case of Kiilu & Another vs. Republic (2005)1 KLR 174, the Court of Appeal held that ;
An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
I have carefully re-evaluated the entire evidence on record, submissions and the concession by the state . Section 339(1) of the Penal Code provides:-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.
In the case of Dominic Mutisya Kasini v Republic [2019] KEHC 4279 (KLR) , it was held that ‘’ 20. With regard to the offence that the appellant was charged with, and as specified in the charge sheet, the prosecution was under the law required to prove beyond reasonable doubt the following ingredients of the offence of malicious damage to property contrary to section 339 (1) of the penal Code;
(a) The property belonging to the complainant was damaged or destroyed.
(b) That the said property was damaged or destroyed through willful and unlawful actions.
(c) That the property in issue was damaged or destroyed by none other than the accused person in the dock.
‘’
The ingredients of Malicious damage to property under section 339 of the penal code are as follows ;
Ownership of the property
The property must have been demolished .
The demolition was wilful and unlawful .
It is the accused who demolished the same damaged property.
Whether the value of the damaged property was proved
On whether the learned Trial magistrate failed to consider the defence case.
On the issue of ownership. it has been admitted that the property belonged to a deceased person and succession cause had not been concluded . PW3 and appellant both agree that there is an dispute on distribution. Ownership has thus not passed from the deceased to any of the parties herein. in any event, PW1 admitted that she built the damaged house on that land after deceased passed on . PW1 admitted that she built the damaged house on that land after deceased passed on . This borders on intermeddling with the estate of the deceased under Section 45 of the Law of succession Act as she had not acquired letters of administration or authourity of the court to put up the said house on the land belonging to deceased. The complainant has thus not proved that she owns the land where the house laid .
On whether the property was demolished , it is not in dispute that the property was demolished.
On whether the demolition was wilful or unlawful not evidence was availed to prove this .
On whether the appellant is the one who damaged the property , Pw2 said he saw appellant with a hammer at the scene but he could not tell how he was he was dressed or how the hammer was used and investigating officer did not give a satisfactory reasons as to why he why the hammer was not recovered . Also that there were also many people at the scene and that some had pangas and jembes . A jembe is not a tool which cannot be used to demolish a timber house . PW1 said he first saw appellant in the year 2011 in a funeral but he did not say if at all they interacted thereafter .Also considering that the appellant said in his defence that he lives in Nairobi and he used to work for KRA and the he first saw him in a funeral and that on the material day there was a crowd demolishing the house it was important that PW2 says how he specifically identified the accused at the scene . There was no attempt by PW2 to even describe the clothes appellant was wearing which made him pick him from his alleged accomplices . PW2 was a nephew to PW1 and thus he is not an independent witness. It has emerged that many people witnessed the incident and that the family of complainant and the appellant . It was important that an independent witness be availed due to the succession dispute between the said two families a fact even admitted by PW3 , the investigating officer (Pw5) and appellant and Dw1 in their testimonies . Though the learned the trial Magistrate held that appellant was Known to PW2 and he had motive to demolish the house , tis is not supported by the evidence on record . I find that the appellant was not properly placed at the scene .
On the value of the damaged property , Pw1 said she does not know the value of the house. The investigating officer put the value of Kshs. 100,000/= as per the charge sheet and he said he got the value from Pw1. This contradicts the evidence of PW1 and thus the source of his information is not credible. The value of the damages property was thus not proved.
Contradictions
Defence also pleaded and submitted that the learned trial magistrate ignored material contradictions and inconsistencies . PW1 said that she said her children Jasper and Caroline to the scene and they found appellant arranging the materials .On cross examination she said Dennis saw accused arranging the items . On his part Denis (Pw1) said he found the demolition on going . Caroline (Pw3 ) said he did not witness the demolition. Pw3 said they went to the scene a day later and then reported the case to the police . she said that she did not witness the incident. This . inconsistent with what the mother told the court. The said inconsistencies are material and go to the root of the credibility of the witnesses case.
On the value of the damaged property , Pw1 said she does not know the value of the house. The investigating officer put the value of Kshs. 100,000/= as per the charge sheet and he said he got the value from Pw1. This contradicts the evidence of PW1 and thus the source of his information is not credible. The value of the damages property was thus not proved.
On whether the learned Trial magistrate failed to consider the defence case Appellant denied demolishing the said house ,Dw1 the mother to appellant told the court that she not the appellant is the one who hired one Musaisi to demolish the house which was on her land . No reason was given by the Learned Trial Magistrate for rejecting this clear evidence of Dw1. I agree with the state that it is Dw1 admitted that she is the one who demolished the house as per her testimony which was not impeached and was corroborated by the appellant and Dw3.
The evidence adduced by the defence cast serious doubts on the prosecution’s case against the appellant. This court can clearly see the shadow of the succession dispute between the parties in this case. The case was thus not proved beyond any reasonable doubt as required.
I proceed to quash the conviction and sentence of the appellant .
T.A ODERA
JUDGE
14.10.25
DELIVERED VIRTUALLY IN THE PRESENCE OF APPEALLANT , HIS COUNSEL MISS ONDURU HOLDING BREIF FOR HON BEN MOMANYI FOR ACCUSED, MR KOIMA FOR PROSECUTION AND CA KIPCHICHIR
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