' (Being an Appeal from the Conviction and Sentence delivered at Nyamira Chief Magistrate’s Court in MCCRCE 1265/2020 Nyamira delivered by Hon. W. K. Chepseba on 5 th December 2024)
The Appellant herein, Hassan Tamboki Oruko , was convicted for the offence of cutting down trees contrary to Section 334(c) of the Penal Code. It was alleged that between 5th and 6th October 2020 at Nyaramba Village, he wilfully and unlawfully cut down trees, namely; 1 Croton macrostachys and 40 Eucalyptus (Blue Gum) trees all valued at Kshs. 19,064, belonging to Francis Mabiria Nyanaro.
He was, upon conviction, sentenced to serve one (1) year probation thereby precipitating the filing of the instant appeal in which he raised the grounds discrepancy between the facts contained in the charge and the evidence, misapplication of the law under Section 334 (c) of the Penal Code, ownership and location of the trees, disregard of the Land Registrar’s and Surveyor’s reports, reliance on incomplete evidence, failure to produce exhibits and excessive sentence.
The Appellant seeks the following reliefs in the appeal: -
That the conviction and sentence be set aside , and that he be acquitted .
Costs of the appeal to be borne by the respondent and the complainant .
The Appeal was canvassed by way of written submissions which I have considered.
The Appellant’s Submissions
The appellant reiterated that his conviction arose from allegations of cutting down 1 croton and 40 eucalyptus trees at Nyaramba Village, Nyamira North Sub-county, valued at Kshs. 19,064, on land LR No. North Mugirango/Boisanga/553, property of Francis Mabiria.
He submitted that he is the registered owner of LR No. North Mugirango/Boisanga/6477 , and that there was a boundary dispute between the two parcels. He noted that the trial court had even directed the Land Registrar to visit the land and determine the boundary in accordance with Sections 18 and 19 of the Land Registration Act, 2012 . He faulted the trial court for ignoring the Land Registrar’s report, which confirmed that the disputed trees were on government land and not on the complainant’s parcel .
The appellant relied on the following precedents to support his arguments: -
Victoria Wanjiru Murigi (Deceased) vs. Evans Muringu Muhia (2020) eKLR for the argument that failure to address issues raised by the Land Registrar, a government officer mandated to handle boundary disputes, amounted to a miscarriage of justice.
Njenga Karume vs. The Hon. Attorney General [2008] 1 KLR where it was held that where there exists a statutory procedure for addressing a grievance, that procedure must be strictly followed.
The appellant argued that since the dispute involved land boundaries, the proper procedure lay under the Land Registration Act, n ot criminal prosecution.
Ephantus Mwangi & Another vs. Duncan Mwangi CIVIL APPEAL NO. 77 OF 1982 [1982] 1 KLR where it was held that: -
“A member of an appellate court is not bound to accept the findings of a trial court if it appears either clearly failed on some point to take into account some particular circumstances or probabilities material to an estimate of evidence or the court failed to take cognizance of the demeanor of a witness account.”
Mokera vs. Republic, Criminal Appeal No. E012 of 2022 [2023] KEHC 22910 (KLR) for the argument that a defective charge is fatal to conviction .
The Respondent’s Submissions
The respondent, on the other hand, opposed the appeal and submitted that the appellant’s contention that the charge sheet was defective due to variance of dates had no merit. It was argued that the charge sheet was properly drafted.
The respondent emphasized that the use of the term “diverse dates” clearly indicated that the offence occurred over a range of days beginning 5th October 2020, and that there was therefore no contradiction or fatal defect in the charge sheet as alleged by the appellant.
It was further argued that even if there were a minor variance in the dates on the charge sheet, such discrepancy was curable under Section 382 of the Criminal Procedure Code, which provides that any variance not occasioning a miscarriage of justice is not fatal to a prosecution.
The respondent relied on Section 334(c) of the Penal Code and submitted that the evidence on record clearly established that the land parcel LR No. North Mugirango/Boisanga/553, from which the trees were cut, belonged to the complainant, Francis Mabiria , that the Appellant had no lawful authority or colour of right to cut down the trees and that the prosecution gave consistent testimony identifying the appellant as the person who wilfully and unlawfully cut down the trees.
The respondent maintained that the trial court properly evaluated the evidence, rightly found the appellant guilty, and that the conviction was based on credible and corroborated testimony.
On the issue of sentence, the respondent noted that the appellant had been sentenced to serve one year on probation given that the offence under Section 334(c) attracts a maximum penalty of fourteen (14) years imprisonment. The respondent described the sentence imposed as lenient, lawful, and not excessive.
Analysis and Determination
As a first appellate court, I am obliged to re-evaluate the evidence afresh and draw my own conclusions, while bearing in mind the fact that I neither saw nor heard the witnesses. (See Okeno vs. Republic [1972] EA 32 ; Kiilu & Another vs. Republic [2005] 1 KLR 174 ).
The prosecution called several witnesses to support the case as follows: -
The Complainant (PW1) Francis Nyabiria Nyanaro , testified that he was informed by one Elizabeth Birongo Atebe (PW2) that the Appellant was cutting his trees. He visited the scene and confirmed that some trees had been cut and uprooted. He reported the matter to the area chief and the police.
Elizabeth Birongo Atebe (PW2) a Village Elder. stated that she witnessed the Appellant cutting the trees on 6th October 2020 around 2:00 PM and immediately informed the complainant. She later found the Appellant at the scene with another person named Mongare.
Joseph Mongare (PW3) testified that the Appellant had hired him to cut and split timber. He confirmed that he was shown the trees by the Appellant and started work until PW2 stopped them.
Real Nyamoita (PW4) a Forest Officer, visited the scene, assessed the damage, and valued the destroyed trees at Kshs. 19,054.
Christopher Keter ( PW5) confirmed the cutting of the trees and recorded statements, which led to the arrest of the accused.
When placed on his defence, the Appellant denied the charges and called Joseph Gesage (DW1) , a surveyor, who testified that the trees were near a road and next to the complainant’s land. DW2 and DW3 also testified that the trees were on the Appellant’s land. The Appellant claimed that the trees were on a public road, not the complainant’s property.
Having carefully examined the petition of appeal, submissions by both parties, and the record of the lower court, the following issues arise for determination: -
Whether the charge sheet was defective and occasioned a miscarriage of justice .
Whether the trial magistrate properly evaluated the evidence on record.
Whether the conviction was safe and supported by the evidence.
Whether the sentence imposed was excessive or unlawful .
The Appellant argued that the charge sheet was defective due to inconsistencies in the dates of the alleged offence, claiming that while witnesses mentioned 6th December 2020, the charge referred to 5th October 2020.
The Respondent, on its part, maintained that the charge sheet properly stated “ on diverse dates between 5th October 2020 ,” which covered the entire period and was therefore not contradictory.
I have examined the charge sheet and I find that the particulars are clear as to the nature of the offence, the date range, and the property involved. Section 134 of the Criminal Procedure Code provides that: -
Every charge or information shall contain such particulars as to the time, place, and person... as may be reasonably sufficient to give the accused notice of the matter with which he is charged.
In Yongo vs. Republic [1983] KLR 319 the Court of Appeal held that a charge is only defective if it does not disclose an offence or misleads the accused in defending himself.
Further Section 382 of the Criminal Procedure Code stipulates that any variance in particulars that does not occasion a miscarriage of justice is not fatal.
My finding is that the alleged variance in dates neither misled the appellant nor hindered his defence as he was aware of the material facts and cross-examined all prosecution witnesses before presenting his evidence alongside his witnesses . I therefore find that the charge sheet was not defective.
Having found that the charge was not defective, I am unable to find that miscarriage of justice was occasioned to the Appellant as a result of the alleged defect.
On whether the trial court properly evaluated the evidence, I note that the record reveals that the trial court disregarded crucial expert evidence adduced through the Land Registrar and Surveyor, which indicated that the disputed trees were located on government land, not on the complainant’s parcel, LR No. North Mugirango/Boisanga/553.
Section 18(2) and 19 of the Land Registration Act, 2012 states that where a boundary dispute exists, the Land Registrar shall determine the same, and his report shall be binding unless overturned by a competent court on appeal.
In Republic vs. District Land Registrar, Nandi & Another ex parte Cheruiyot [2016] eKLR the Court of Appeal emphasized that: -
“The Land Registrar’s statutory report, once duly prepared and adopted, cannot be ignored by a trial court dealing with a matter where boundary and ownership are in issue.”
In the present case, the Registrar’s report clearly exonerated the Appellant by showing that the felled trees stood on public land. I find that the trial court’s failure to consider that report constituted a misdirection and a serious error in evaluation of the evidence. As stated in the oft-cited case of Okeno vs. Republic [1972] EA 32, an appellate court must ensure that the trial court properly analyzed all material evidence. In this case, it is evident the trial magistrate placed undue reliance on oral testimony while overlooking technical and documentary evidence from public officers, thereby leading to an unsafe conviction.
On whether the conviction was safe, I find that while it was established that trees were indeed cut, the ownership and locus of the said trees remained unresolved. The prosecution failed to prove, beyond reasonable doubt, that the trees were on the complainant’s land or that the Appellant acted unlawfully. It is my finding that the existence of a boundary dispute and an official report locating the trees on public land introduced reasonable doubt, which ought to have been resolved in favour of the Appellant. I am guided by the decision in Kiarie vs. Republic [1984] KLR 739, the Court emphasized that: -
“The burden of proof in criminal cases is always upon the prosecution and never shifts to the accused.”
I further find that given the material inconsistencies, absence of conclusive proof of ownership, and disregard of the Land Registrar’s findings, the conviction was unsafe and cannot stand.
On whether the sentence was excessive and unlawful, I note that the Appellant was sentenced to one-year probation. While on the face of it this appears lenient, the principle is that sentencing must follow a lawful conviction. I find that once the conviction is quashed, the sentence automatically collapses. Moreover, in Bernard Kimani Gacheru vs. Republic [2002] eKLR the Court reiterated that: -
“A sentence imposed following a conviction which is later quashed is itself rendered invalid.”
In conclusion, having found that the prosecution did not discharge the burden of proof beyond reasonable doubt, I find merit in the appeal which I hereby allow. The conviction is hereby quashed, and the sentence set aside.
The Appellant, Hassan Tamboki Oruko , is hereby acquitted forthwith of the charge of cutting down trees contrary to Section 334(c) of the Penal Code.
Any probation orders, bonds, or restrictions imposed upon him are hereby vacated.
Orders accordingly.
'
The Appellant herein, Hassan Tamboki Oruko , was convicted for the offence of cutting down trees contrary to Section 334(c) of the Penal Code. It was alleged that between 5th and 6th October 2020 at Nyaramba Village, he wilfully and unlawfully cut down trees, namely; 1 Croton macrostachys and 40 Eucalyptus (Blue Gum) trees all valued at Kshs. 19,064, belonging to Francis Mabiria Nyanaro.
He was, upon conviction, sentenced to serve one (1) year probation thereby precipitating the filing of the instant appeal in which he raised the grounds discrepancy between the facts contained in the charge and the evidence, misapplication of the law under Section 334 (c) of the Penal Code, ownership and location of the trees, disregard of the Land Registrar’s and Surveyor’s reports, reliance on incomplete evidence, failure to produce exhibits and excessive sentence.
The Appellant seeks the following reliefs in the appeal: -
That the conviction and sentence be set aside , and that he be acquitted .
Costs of the appeal to be borne by the respondent and the complainant .
The Appeal was canvassed by way of written submissions which I have considered.
The Appellant’s Submissions
The appellant reiterated that his conviction arose from allegations of cutting down 1 croton and 40 eucalyptus trees at Nyaramba Village, Nyamira North Sub-county, valued at Kshs. 19,064, on land LR No. North Mugirango/Boisanga/553, property of Francis Mabiria.
He submitted that he is the registered owner of LR No. North Mugirango/Boisanga/6477 , and that there was a boundary dispute between the two parcels. He noted that the trial court had even directed the Land Registrar to visit the land and determine the boundary in accordance with Sections 18 and 19 of the Land Registration Act, 2012 . He faulted the trial court for ignoring the Land Registrar’s report, which confirmed that the disputed trees were on government land and not on the complainant’s parcel .
The appellant relied on the following precedents to support his arguments: -
Victoria Wanjiru Murigi (Deceased) vs. Evans Muringu Muhia (2020) eKLR for the argument that failure to address issues raised by the Land Registrar, a government officer mandated to handle boundary disputes, amounted to a miscarriage of justice.
Njenga Karume vs. The Hon. Attorney General [2008] 1 KLR where it was held that where there exists a statutory procedure for addressing a grievance, that procedure must be strictly followed.
The appellant argued that since the dispute involved land boundaries, the proper procedure lay under the Land Registration Act, n ot criminal prosecution.
Ephantus Mwangi & Another vs. Duncan Mwangi CIVIL APPEAL NO. 77 OF 1982 [1982] 1 KLR where it was held that: -
“A member of an appellate court is not bound to accept the findings of a trial court if it appears either clearly failed on some point to take into account some particular circumstances or probabilities material to an estimate of evidence or the court failed to take cognizance of the demeanor of a witness account.”
Mokera vs. Republic, Criminal Appeal No. E012 of 2022 [2023] KEHC 22910 (KLR) for the argument that a defective charge is fatal to conviction .
The Respondent’s Submissions
The respondent, on the other hand, opposed the appeal and submitted that the appellant’s contention that the charge sheet was defective due to variance of dates had no merit. It was argued that the charge sheet was properly drafted.
The respondent emphasized that the use of the term “diverse dates” clearly indicated that the offence occurred over a range of days beginning 5th October 2020, and that there was therefore no contradiction or fatal defect in the charge sheet as alleged by the appellant.
It was further argued that even if there were a minor variance in the dates on the charge sheet, such discrepancy was curable under Section 382 of the Criminal Procedure Code, which provides that any variance not occasioning a miscarriage of justice is not fatal to a prosecution.
The respondent relied on Section 334(c) of the Penal Code and submitted that the evidence on record clearly established that the land parcel LR No. North Mugirango/Boisanga/553, from which the trees were cut, belonged to the complainant, Francis Mabiria , that the Appellant had no lawful authority or colour of right to cut down the trees and that the prosecution gave consistent testimony identifying the appellant as the person who wilfully and unlawfully cut down the trees.
The respondent maintained that the trial court properly evaluated the evidence, rightly found the appellant guilty, and that the conviction was based on credible and corroborated testimony.
On the issue of sentence, the respondent noted that the appellant had been sentenced to serve one year on probation given that the offence under Section 334(c) attracts a maximum penalty of fourteen (14) years imprisonment. The respondent described the sentence imposed as lenient, lawful, and not excessive.
Analysis and Determination
As a first appellate court, I am obliged to re-evaluate the evidence afresh and draw my own conclusions, while bearing in mind the fact that I neither saw nor heard the witnesses. (See Okeno vs. Republic [1972] EA 32 ; Kiilu & Another vs. Republic [2005] 1 KLR 174 ).
The prosecution called several witnesses to support the case as follows: -
The Complainant (PW1) Francis Nyabiria Nyanaro , testified that he was informed by one Elizabeth Birongo Atebe (PW2) that the Appellant was cutting his trees. He visited the scene and confirmed that some trees had been cut and uprooted. He reported the matter to the area chief and the police.
Elizabeth Birongo Atebe (PW2) a Village Elder. stated that she witnessed the Appellant cutting the trees on 6th October 2020 around 2:00 PM and immediately informed the complainant. She later found the Appellant at the scene with another person named Mongare.
Joseph Mongare (PW3) testified that the Appellant had hired him to cut and split timber. He confirmed that he was shown the trees by the Appellant and started work until PW2 stopped them.
Real Nyamoita (PW4) a Forest Officer, visited the scene, assessed the damage, and valued the destroyed trees at Kshs. 19,054.
Christopher Keter ( PW5) confirmed the cutting of the trees and recorded statements, which led to the arrest of the accused.
When placed on his defence, the Appellant denied the charges and called Joseph Gesage (DW1) , a surveyor, who testified that the trees were near a road and next to the complainant’s land. DW2 and DW3 also testified that the trees were on the Appellant’s land. The Appellant claimed that the trees were on a public road, not the complainant’s property.
Having carefully examined the petition of appeal, submissions by both parties, and the record of the lower court, the following issues arise for determination: -
Whether the charge sheet was defective and occasioned a miscarriage of justice .
Whether the trial magistrate properly evaluated the evidence on record.
Whether the conviction was safe and supported by the evidence.
Whether the sentence imposed was excessive or unlawful .
The Appellant argued that the charge sheet was defective due to inconsistencies in the dates of the alleged offence, claiming that while witnesses mentioned 6th December 2020, the charge referred to 5th October 2020.
The Respondent, on its part, maintained that the charge sheet properly stated “ on diverse dates between 5th October 2020 ,” which covered the entire period and was therefore not contradictory.
I have examined the charge sheet and I find that the particulars are clear as to the nature of the offence, the date range, and the property involved. Section 134 of the Criminal Procedure Code provides that: -
Every charge or information shall contain such particulars as to the time, place, and person... as may be reasonably sufficient to give the accused notice of the matter with which he is charged.
In Yongo vs. Republic [1983] KLR 319 the Court of Appeal held that a charge is only defective if it does not disclose an offence or misleads the accused in defending himself.
Further Section 382 of the Criminal Procedure Code stipulates that any variance in particulars that does not occasion a miscarriage of justice is not fatal.
My finding is that the alleged variance in dates neither misled the appellant nor hindered his defence as he was aware of the material facts and cross-examined all prosecution witnesses before presenting his evidence alongside his witnesses . I therefore find that the charge sheet was not defective.
Having found that the charge was not defective, I am unable to find that miscarriage of justice was occasioned to the Appellant as a result of the alleged defect.
On whether the trial court properly evaluated the evidence, I note that the record reveals that the trial court disregarded crucial expert evidence adduced through the Land Registrar and Surveyor, which indicated that the disputed trees were located on government land, not on the complainant’s parcel, LR No. North Mugirango/Boisanga/553.
Section 18(2) and 19 of the Land Registration Act, 2012 states that where a boundary dispute exists, the Land Registrar shall determine the same, and his report shall be binding unless overturned by a competent court on appeal.
In Republic vs. District Land Registrar, Nandi & Another ex parte Cheruiyot [2016] eKLR the Court of Appeal emphasized that: -
“The Land Registrar’s statutory report, once duly prepared and adopted, cannot be ignored by a trial court dealing with a matter where boundary and ownership are in issue.”
In the present case, the Registrar’s report clearly exonerated the Appellant by showing that the felled trees stood on public land. I find that the trial court’s failure to consider that report constituted a misdirection and a serious error in evaluation of the evidence. As stated in the oft-cited case of Okeno vs. Republic [1972] EA 32, an appellate court must ensure that the trial court properly analyzed all material evidence. In this case, it is evident the trial magistrate placed undue reliance on oral testimony while overlooking technical and documentary evidence from public officers, thereby leading to an unsafe conviction.
On whether the conviction was safe, I find that while it was established that trees were indeed cut, the ownership and locus of the said trees remained unresolved. The prosecution failed to prove, beyond reasonable doubt, that the trees were on the complainant’s land or that the Appellant acted unlawfully. It is my finding that the existence of a boundary dispute and an official report locating the trees on public land introduced reasonable doubt, which ought to have been resolved in favour of the Appellant. I am guided by the decision in Kiarie vs. Republic [1984] KLR 739, the Court emphasized that: -
“The burden of proof in criminal cases is always upon the prosecution and never shifts to the accused.”
I further find that given the material inconsistencies, absence of conclusive proof of ownership, and disregard of the Land Registrar’s findings, the conviction was unsafe and cannot stand.
On whether the sentence was excessive and unlawful, I note that the Appellant was sentenced to one-year probation. While on the face of it this appears lenient, the principle is that sentencing must follow a lawful conviction. I find that once the conviction is quashed, the sentence automatically collapses. Moreover, in Bernard Kimani Gacheru vs. Republic [2002] eKLR the Court reiterated that: -
“A sentence imposed following a conviction which is later quashed is itself rendered invalid.”
In conclusion, having found that the prosecution did not discharge the burden of proof beyond reasonable doubt, I find merit in the appeal which I hereby allow. The conviction is hereby quashed, and the sentence set aside.
The Appellant, Hassan Tamboki Oruko , is hereby acquitted forthwith of the charge of cutting down trees contrary to Section 334(c) of the Penal Code.
Any probation orders, bonds, or restrictions imposed upon him are hereby vacated.
Orders accordingly.
'