1. The Appellant herein, was convicted in Mariakani Criminal Case No. E091 of 2021, of the offence of destroying crops of cultivated produce contrary to Section 334(a) of the Penal Code. The particulars of the offence are that on 15.4.2020 at Mbele village, Vakamini location within Kwale county with others not before the court, willfully and unlawfully destroyed crops of cultivated produce (maize cassava and green grams) the property of Elisha Mwachenda Njuka. Following trial, the Appellant was sentenced to a pay a fine of Kshs. 10,000/= and in default serve 4 months imprisonment.
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The Appellant raised 13 grounds of appeal, all of which can all be condensed into one main ground, namely that the prosecution did not prove its case to the required standard.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. Section 334(a) under which the Appellant was charged provides:
Any person who wilfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently injures-
(a) a crop of cultivated produce, whether standing, picked or cut;…is guilty of a felony and is liable to imprisonment for fourteen years.;
5. The ingredients for the offence were listed by Njagi, J. in Republic v Christopher Bwanga [2019] eKLR as follows:
14. The ingredients of the offence of destroying a crop of cultivated produce are:-
(i) evidence of destruction of a crop of cultivated produce.
(ii) whether the act was wilful and unlawful.
(iii) whether the crop belonged to the complainant.
6. The record shows that the Complainant testified that the Appellant and others invaded his farm with bulls, ploughs and pangas and started mowing the maize growing thereon. He went and reported to the police who came and took photos. On 17.4.2020 the agricultural officer assessed the damage done at 20,300/=. He then stated that he had spent over Kshs. 200,000/= to follow up the matter.
7. PW2 a brother to the complainant testified that on 15.5.2020, the Appellant and others, with a plough drawn by bulls and other farm implements, invaded the Complainant’s farm on which were planted maize, green peas and cassava. They started pulling down fences and destroyed the maize, cassava and green grams. PW3 also stated that the Appellant and others invaded their farm with bulls and other farm implements and destroyed maize, green peas and cassava.
8. Although the crop damage assessment report dated 17.4.21 was marked for identification, the same was never produced by the agricultural officer. Further the photographs taken by the police were marked for identification but were not produced by the officer who took them. Notably, PW4 PC Philip Dzombo stated that the processing of the photographs was not done according to the law. Further that the photographs cannot tell on which land they were taken.
9. In his judgment, the trial Magistrate stated that there was a land dispute between the Complainant and the Appellant and further that there was reluctance on the part of the police to arrest the Appellant. On the basis of the foregoing, he found the Appellant guilty of the offence with which he was charged.
10. From the material before the trial court, it is not possible to conclude that the alleged destruction of crops of cultivated produce actually took place and that the Appellant was responsible. In light of this, it follows that the question whether the destruction was willful and whether the crops belonged to the Complainant cannot therefore arise. With the kind of evidence placed before the trial court, it is clear that the prosecution did not prove the case to the required standard.
11. The Appeal was conceded by the Respondent on the ground that the ingredients of the offence were not established.
12. In the end, my finding is that the Appeal is merited. The trial Magistrate clearly misdirected himself by convicting the Appellant on the basis of the evidence on record. Accordingly, the conviction is quashed and sentence set aside. Any fine that may have been paid to be refunded to the Appellant forthwith.
DATED, SIGNED and DELIVERED in MALINDI this 30th day of May 2025
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The Appellant raised 13 grounds of appeal, all of which can all be condensed into one main ground, namely that the prosecution did not prove its case to the required standard.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. Section 334(a) under which the Appellant was charged provides:
Any person who wilfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently injures-
(a) a crop of cultivated produce, whether standing, picked or cut;…is guilty of a felony and is liable to imprisonment for fourteen years.;
5. The ingredients for the offence were listed by Njagi, J. in Republic v Christopher Bwanga [2019] eKLR as follows:
14. The ingredients of the offence of destroying a crop of cultivated produce are:-
(i) evidence of destruction of a crop of cultivated produce.
(ii) whether the act was wilful and unlawful.
(iii) whether the crop belonged to the complainant.
6. The record shows that the Complainant testified that the Appellant and others invaded his farm with bulls, ploughs and pangas and started mowing the maize growing thereon. He went and reported to the police who came and took photos. On 17.4.2020 the agricultural officer assessed the damage done at 20,300/=. He then stated that he had spent over Kshs. 200,000/= to follow up the matter.
7. PW2 a brother to the complainant testified that on 15.5.2020, the Appellant and others, with a plough drawn by bulls and other farm implements, invaded the Complainant’s farm on which were planted maize, green peas and cassava. They started pulling down fences and destroyed the maize, cassava and green grams. PW3 also stated that the Appellant and others invaded their farm with bulls and other farm implements and destroyed maize, green peas and cassava.
8. Although the crop damage assessment report dated 17.4.21 was marked for identification, the same was never produced by the agricultural officer. Further the photographs taken by the police were marked for identification but were not produced by the officer who took them. Notably, PW4 PC Philip Dzombo stated that the processing of the photographs was not done according to the law. Further that the photographs cannot tell on which land they were taken.
9. In his judgment, the trial Magistrate stated that there was a land dispute between the Complainant and the Appellant and further that there was reluctance on the part of the police to arrest the Appellant. On the basis of the foregoing, he found the Appellant guilty of the offence with which he was charged.
10. From the material before the trial court, it is not possible to conclude that the alleged destruction of crops of cultivated produce actually took place and that the Appellant was responsible. In light of this, it follows that the question whether the destruction was willful and whether the crops belonged to the Complainant cannot therefore arise. With the kind of evidence placed before the trial court, it is clear that the prosecution did not prove the case to the required standard.
11. The Appeal was conceded by the Respondent on the ground that the ingredients of the offence were not established.
12. In the end, my finding is that the Appeal is merited. The trial Magistrate clearly misdirected himself by convicting the Appellant on the basis of the evidence on record. Accordingly, the conviction is quashed and sentence set aside. Any fine that may have been paid to be refunded to the Appellant forthwith.
DATED, SIGNED and DELIVERED in MALINDI this 30th day of May 2025