REPUBLIC OF KENYA
IN THE HIGH COURT KENYA
AT BUNGOMA
CRIMINAL APPEAL E037 OF 2024
REPUBLIC………………………………………………………APPELLANT
VERSUS
OMAR TABUCHI MAKOKHA………………………………………………RESPONDENT
(Being an appeal against the original conviction and sentence delivered by Hon. E.M.Ayuka (P.M) on 21st February 2024 at Bungoma Chief Magistrate’s Court Criminal Case No. E364 of 2022)
JUDGMENT
A. BACKGROUND
1. Omar Tabuchi Makokha was charged in the lower Court with several offences as follows; -
i) Count I: Threatening to kill, contrary to section 223 (1) of the Penal Code.
2. The particulars of this offence were that on the10th of December 2020, 2000hrs at Nangwe Village in Bungoma Central Sub-County within Bungoma County without lawful excuse directly caused Christine Nafula to receive a threat by saying “uko na bahati umeingia kwa nyumba ningekuua, na tena mimi niko kwa ukoo nitakukatakata na bado niko na wewe” translation; “ You are lucky to have gotten into the house for I would have killed you. That notwithstanding a still your kinsman and I will pursue you” threatening to kill her.
ii) Count II: Malicious injury to property, contrary to section 339 (1) of the Penal Code.
3. The particulars hereof being that on the on the10th of December 2020, 2000hrs at Nangwe Village in Bungoma Central Sub-County within Bungoma County, the Respondent willfully and unlawfully damaged a maize plantation with approximate area of 932.75 M² valued at Kshs. 18, 655/= , the property of Evans Barasa Kisiangani.
4. On 21st March 2022, he pleaded not guilty to both counts and the matter was set down for hearing.
B. THE DUTY OF A FIRST APPELLATE COURT
5. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
6. The above position was restated in the case of Okeno Vs R (1972) EA 32 where the Court stated: -
“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 the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”
C. EVIDENCE
7. PW1 (Complainant) testified that on 10th December 2020, while undressed and preparing to take a bath outside her house, someone illuminated the area with a torch and upon inquiring about the identity of the intruder, the Respondent herein identified himself and threatened to kill her. That PW1 then flee into her house and tied up a wrapper “leso” and attempted to establish the purpose of the visit by the Respondent. It was at that point that the Respondent told her, I quote verbatim;
“toka kwa nyumba ujue mimi ni nani” “nitakukatakata utakua na bado niko na wewe.”
Translation:
“Get out of the house so as to establish my identity. I will butcher you. And I am still pursuing you”
8. PW1told the Court that it was at that point that she heard the Respondent slashing up her maize crop while the Respondent’s father was imploring him to telling to exit her property. That the next morning, PW1 noticed that her maize crop and her fence had been vandalized by the Respondent and one Kennedy told her that he had found the Respondent in her maize farm as he repeatedly uttered the following words “huyu mama nitamuua” “I will kill this woman”. That after reporting the matter to the chief she was advised to go and lodge a report at the police station. That subsequently an agricultural officer visited the site and assessed her loss at Kshs. 18,000/=. She told the Court that parties had attempted mediation but the Respondent persisted in issuing threats to her. Finally, she testified that the surveyor visited the ground and established there was no road passing through her property to the Respondent’s property but the Officer Commanding Station insisted that she ought to create an access road for the Respondent to use.
9. On cross-examination, she told the Court that she had maize crop outside her house and could not tell if the Respondent was home or not and that she had created an access foot path but there is no legal road and that the Surveyor had established that fact.
10. PW2, Evans Barasa, testified that the Respondent herein was his neighbor and that the Complainant is his wife. According to him, on 10th December 2020, while his wife proceeded to shower at 8.00 p.m. he heard screams and saw her running into their house, carrying her clothes on one hand and on peeping through the window he saw the Respondent herein with a torch and panga screaming “kama haungeingia ndani ningekumaliza” then he started to slash his maize crops. PW2 told the Court that he was frighten and apprehensive about his safety wherefore he did not venture outside his house. That the next morning he advised his wife to report the matter to the area chief. Further, he testified that an agricultural officer visited the site, assessed the damaged at Kshs. 18,000/= and they proceeded to lodge the report with the police. He told the Court that his title is 3815 and that of the Respondent was 3815 prior to sub-division and they have he has his own road. He insisted that the Respondent sold off a portion of his land and the purchaser erected a perimeter wall leaving him with no access to his farm. He positively identified the Respondent as the person who threatened them and the one who cut his maize crop.
11. On cross-examination, he told the Court that he had never had any disagreements with the Respondent herein and that he did not leave his house on that night of the incident.
12. PW3, Claire Nasimiyu, testified that the Complainant is her mother and the Respondent is a neighbor. According to her, on 10th December 2020, while at home she heard PW1 screaming while entering the house, carrying her clothes on her hand while naked and a man was screaming “umejioka kuingia ndani ya nyumba, bure ningekumaliza” Translation: You have saved yourself by getting into your house”. He told the Court that he recognized the voice as that of a neighbor, the Respondent who had been addressing PW1. Further that she heard sounds of the Respondent slashing the complainant’s maize crop while making utterances to the effect that he would kill PW1.
13. On cross-examination, she reiterated that the Respondent threatened PW1 and that the maize crop that he had vandalized was mature and ready for harvest.
14. PW4, D.B, testified that she was 16 years old student. It was her evidence that on 10th December 2020, while at home with her siblings while her mother was taking a bathe outside the house, she saw her mother running into the house while naked with her clothes clutched to one of her hands. That she then heard a voice shouting from outside “ni vizuri umekimbia ningekukatakata” “ It is well that you have ran off otherwise I would have butchered you”. That the then peeped She through the window and saw the Respondent herein. PW4 told the court that the Respondent always had issues with them and maintained that the road outside their home was his yet it was just a pathway. She did a dock identification of the person she saw on the incident day as the Respondent who was then on the dock.
15. On cross-examination, he told the Court that the Respondent did not quarrel with PW1 during the day, but the incident happened at night and the disputed road is on their land.
16. PW5, Kennedy Khasoto, testified that on 10th December 2020 while heading home from work, he decided to use a short route whhen he heard noises ahead of him. He told the Court that he moved closer to observe what was happening and he saw the Respondent holding a torch and slashing maize. A crowd had already gathered at the scene. He told the Court that he heard the Respondent say “Ningekuua lakini uko na bahati umetoroka” “ You are lucky to have escaped as I would have killed you.” That given that he had been exhausted from his day work he did not bother to stop and proceeded to his home. That the next day he met with PW1 and her children, and he narrated to them of what he had heard and observed. Further that he shared the photographs of the vandalized maize crop with the complainant. He told the Court that he was acquainted to both the Complainant and the Respondent prior to the incident and that he never disagreed with the Respondent.
17. On cross-examination, PW5 told the Court that he had seen the Respondent and had recognized him immediately, as he was slashing the Complainant’s maize, but he did not know whom he had been referring to as he said “ningekuua” “ I would have killed you”. He told the Court that he shared the photos of the slashed maize with the police when he was summoned to record his statement.
18. PW6, No. 70836 Tony, testified that he received a film from P.C Mulongo who requested him to process the same and produce the same in Court. That pursuant to those instructions he had printed 2 photographs, prepared a certificate dated 4th August 2021 and availed all with an exhibit memo list. He produced the same in Court as exhibits (PEXH 1(c) (b) and 2 (c)) respectively.
19. On cross-examination, he told the Court that he never visited the scene and he was not the one who took the photographs.
20. PW7, Chrispinus Wanjala, testified that he worked as an agricultural officer at West Nalondo Ward and had attended Court for purposes of producing a report with regards to the status of the farm of PW2. He had noted that the land was ¼ an acre. It was his evidence that the quantum of damages on damaged maize crop pegged at Kshs. 200, 000/= per hectare as per government rates. Based on that rate, he awarded PW2 Kshs. 18,000/=, as per his crop damage assessment report dated 23rd December 2020 which he produced as PEX 4.
21. On cross-examination, he told the Court that he only visited the land on the instructions of the area OCS with an OB accompanying it and that it was PW2 who lodged a report with his office. He told the Court that the maize was in the 2nd season, fruiting stage and he did not know about the issue of land boundary or road.
22. PW8, Matthew Nameli Korney, testified that he was a County Surveyor in Bungoma County and he had attended Court for purposes of producing a report dated 20th September 2022 with regards to land parcel E. Bukusus/S. Nalondo/3815, E. Bukusu/S. Nalondo/6271 and E. Bukusus/S. Nalondo/6272. This witness testified that after receiving a letter from DCI office on 20th September 2022, he visited land parcel E. Bukusus/S. Nalondo/3815 and discovered there were crops planted by the owner and there was land between parcel E. Bukusus/S. Nalondo/3815 and E. Bukusu/S. Nalondo/6272 measuring 6 meters wide as per the mutation form but on ground it was smaller. According to him, the owner of land parcel E. Bukusus/S. Nalondo/3815 was wrong for closing the road and farming on the land while the owner of land parcel E. Bukusu/S. Nalondo/6272 put up a perimeter wall on his land boundary, not on the road. He produced his report as PEXH 5.
23. Upon the Respondent being placed on his defence, and called one witness.
24. DW1 told the Court that on the material date he was at home and the road to his home had been closed up and upon inquiring from his wife, he had been informed that it was a neighbor ( the complainant) who had closed it and upon confronting the Complainant, the latter proceeded to report him for threatening her.
25. On cross-examination, he denied cutting up any maize and reiterated that nobody ever threatened the Complainant.
26. DW2, Julius Makokha, testified that the Respondent was his son and that he had given a road through the land, but the Complainant had attempted to close it.
27. On cross-examination, he told the Court that the plot purchased by the Complainant is beside the road and that the road does not form part of the plot, as a motor vehicle can pass by the road which is next to the Complainant’s house. He told the Court that the Complainant had not planted any maize.
28. The trial Court evaluated the evidence and found that all the Appellant’s evidence incredible and unreliable, thus the Court found it untrustworthy to rely upon the same. The trial Court proceeded to acquit the Respondent under Section 215 of the Criminal Procedure Code on both counts.
D. APPEAL
29. The Appellant was dissatisfied with the decision of the lower Court wherefore he filed the appeal herein which it premises on the following grounds that; -
a. The learned magistrate erred in law and in fact and misdirected himself by holding that the Prosecution had failed to prove its case beyond reasonable doubt.
b. The learned magistrate erred in law and in fact by failing to analyze the evidence tendered in Court vis-à-vis the required ingredients of the offences charged.
c. The learned magistrate erred in law and in fact for taking into consideration irrelevant facts against the offence charged.
d. The learned magistrate failed to critically analyze the evidence and thus arrived at an erroneous decision.
30. Vide directions dated 13th February 2025, the appeal was canvassed by way of written submissions. Both parties complied.
E. ANALYSIS AND DETERMINATION
31. The issue for this Court’s determination is whether the Appellant proved the offences of threatening to kill and malicious damage to property as against the Respondent beyond reasonable doubt.
32. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. The Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR rendered itself on the standard of proof as hereunder:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
33. With regards to Count I, threatening to kill the Complainant, the evidence of PW2, PW3 and PW4 establishes that the Respondent uttered words which amounted to threats to kill PW1. PW5 saw the Respondent inaction as he slashed the complainants maize crop while uttering threats; “Ningekuua lakini uko na bahati umetoroka”. This is corroborative evidence to that of PW1, PW2, PW3 and PW4. PW5 had no bad blood with the Respondent and was acquainted to both the Respondent and the complainant. The Respondent’s defence did not shake the credibility of the Appellant’s witnesses neither did it create any doubt about the veracity of their testimonies. I thus find that the Appellant had proved Count 1 beyond any reasonable doubt.
34. With regards to Count II, Section 339(1) of the Penal Code provides as follows:
“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.”
35. The elements of the offence of malicious damage to property were stated in the case of Wilson Gathungu Chuchu vs. Republic [2018] eKLR as follows:-
i. proof of ownership of the property,
ii. proof that the property was destroyed or damaged,
iii. proof that the destruction or damage was occasioned by the accused; and
iv. proof that the destruction was willful and unlawful.
36. Actus reus and mens rea are crucial parameters of criminal law that must both be established to sustain a conviction and the Appellant ought to have established that the Respondent acted with malice. This Court is persuaded by the reasoning of the Court in the case of Simon Kiama Ndiagui vs. Republic (2017) eKLR where Ngaah J. stated as follows:
“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful.”
37. The owners of property are entitled to defend their property. They are not entitled to destroy the trespassers goods. However, even without malice, destruction can occur. The evidence tendered, does amount to malicious destruction. This is because it haboured most of the elements of malicious destruction as identified in the case of Wilson Gathungu Chuchu v Republic [2018] eKLR.
38. There was evidence tendered on the ownership of the property by PW8 who testified before the Court that after receiving a letter from DCI office on 20th September 2022, he visited land parcel E. Bukusus/S. Nalondo/3815 and discovered there were crops planted by the owner (PW2) and there was land between land parcel E. Bukusus/S. Nalondo/3815 and E. Bukusu/S. Nalondo/6272 measuring 6 meters wide as per the mutation form but on ground it was smaller. According to him, the owner of land parcel E. Bukusus/S. Nalondo/3815 was wrong for closing the road and farming on the land while the owner of land parcel E. Bukusu/S. Nalondo/6272 put up a perimeter wall on his land bordering, not on the road. He produced his report as PEXH 5.
39. Based on the forgoing evidence, it is clear that PW1 and PW2 erred in closing the road and farming thereon thus denied the Respondent access to his property. That notwithstanding, the actions of the Respondent are inexcusable. He ought to have followed lawful channels to resolved the issue. PW1, PW2, PW3, PW4 and PW5 witnessed the destruction the maize crop by the respondent. PW6 produced photographs of the destroyed maize crop and certificate of production as PEX 1a, b, c and 2c. PW7 produced the crop damage assessment report as PEX 4 which placed the value of the damaged maize crop at Kshs. 18,655/=.
40. On the balance I do find that the Appellant had proved its case on beyond reasonable doubt to warrant this Court to set aside the trial’s Court holding and convict the Respondent both Count I and Count II respectively.
41. The upshot of the above analysis is that the appeal is found to have merit and is hereby allowed.
42. The Respondent is committed to Bungoma Maximum Prison.
43. A pre -sentence report to be filed within 14 days.
44. Mitigation and sentencing of the respondent are scheduled on
19.1.2026.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
MS KIBET FOR APPELLANT
RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT KENYA
AT BUNGOMA
CRIMINAL APPEAL E037 OF 2024
REPUBLIC………………………………………………………APPELLANT
VERSUS
OMAR TABUCHI MAKOKHA………………………………………………RESPONDENT
(Being an appeal against the original conviction and sentence delivered by Hon. E.M.Ayuka (P.M) on 21st February 2024 at Bungoma Chief Magistrate’s Court Criminal Case No. E364 of 2022)
JUDGMENT
A. BACKGROUND
1. Omar Tabuchi Makokha was charged in the lower Court with several offences as follows; -
i) Count I: Threatening to kill, contrary to section 223 (1) of the Penal Code.
2. The particulars of this offence were that on the10th of December 2020, 2000hrs at Nangwe Village in Bungoma Central Sub-County within Bungoma County without lawful excuse directly caused Christine Nafula to receive a threat by saying “uko na bahati umeingia kwa nyumba ningekuua, na tena mimi niko kwa ukoo nitakukatakata na bado niko na wewe” translation; “ You are lucky to have gotten into the house for I would have killed you. That notwithstanding a still your kinsman and I will pursue you” threatening to kill her.
ii) Count II: Malicious injury to property, contrary to section 339 (1) of the Penal Code.
3. The particulars hereof being that on the on the10th of December 2020, 2000hrs at Nangwe Village in Bungoma Central Sub-County within Bungoma County, the Respondent willfully and unlawfully damaged a maize plantation with approximate area of 932.75 M² valued at Kshs. 18, 655/= , the property of Evans Barasa Kisiangani.
4. On 21st March 2022, he pleaded not guilty to both counts and the matter was set down for hearing.
B. THE DUTY OF A FIRST APPELLATE COURT
5. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
6. The above position was restated in the case of Okeno Vs R (1972) EA 32 where the Court stated: -
“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 the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”
C. EVIDENCE
7. PW1 (Complainant) testified that on 10th December 2020, while undressed and preparing to take a bath outside her house, someone illuminated the area with a torch and upon inquiring about the identity of the intruder, the Respondent herein identified himself and threatened to kill her. That PW1 then flee into her house and tied up a wrapper “leso” and attempted to establish the purpose of the visit by the Respondent. It was at that point that the Respondent told her, I quote verbatim;
“toka kwa nyumba ujue mimi ni nani” “nitakukatakata utakua na bado niko na wewe.”
Translation:
“Get out of the house so as to establish my identity. I will butcher you. And I am still pursuing you”
8. PW1told the Court that it was at that point that she heard the Respondent slashing up her maize crop while the Respondent’s father was imploring him to telling to exit her property. That the next morning, PW1 noticed that her maize crop and her fence had been vandalized by the Respondent and one Kennedy told her that he had found the Respondent in her maize farm as he repeatedly uttered the following words “huyu mama nitamuua” “I will kill this woman”. That after reporting the matter to the chief she was advised to go and lodge a report at the police station. That subsequently an agricultural officer visited the site and assessed her loss at Kshs. 18,000/=. She told the Court that parties had attempted mediation but the Respondent persisted in issuing threats to her. Finally, she testified that the surveyor visited the ground and established there was no road passing through her property to the Respondent’s property but the Officer Commanding Station insisted that she ought to create an access road for the Respondent to use.
9. On cross-examination, she told the Court that she had maize crop outside her house and could not tell if the Respondent was home or not and that she had created an access foot path but there is no legal road and that the Surveyor had established that fact.
10. PW2, Evans Barasa, testified that the Respondent herein was his neighbor and that the Complainant is his wife. According to him, on 10th December 2020, while his wife proceeded to shower at 8.00 p.m. he heard screams and saw her running into their house, carrying her clothes on one hand and on peeping through the window he saw the Respondent herein with a torch and panga screaming “kama haungeingia ndani ningekumaliza” then he started to slash his maize crops. PW2 told the Court that he was frighten and apprehensive about his safety wherefore he did not venture outside his house. That the next morning he advised his wife to report the matter to the area chief. Further, he testified that an agricultural officer visited the site, assessed the damaged at Kshs. 18,000/= and they proceeded to lodge the report with the police. He told the Court that his title is 3815 and that of the Respondent was 3815 prior to sub-division and they have he has his own road. He insisted that the Respondent sold off a portion of his land and the purchaser erected a perimeter wall leaving him with no access to his farm. He positively identified the Respondent as the person who threatened them and the one who cut his maize crop.
11. On cross-examination, he told the Court that he had never had any disagreements with the Respondent herein and that he did not leave his house on that night of the incident.
12. PW3, Claire Nasimiyu, testified that the Complainant is her mother and the Respondent is a neighbor. According to her, on 10th December 2020, while at home she heard PW1 screaming while entering the house, carrying her clothes on her hand while naked and a man was screaming “umejioka kuingia ndani ya nyumba, bure ningekumaliza” Translation: You have saved yourself by getting into your house”. He told the Court that he recognized the voice as that of a neighbor, the Respondent who had been addressing PW1. Further that she heard sounds of the Respondent slashing the complainant’s maize crop while making utterances to the effect that he would kill PW1.
13. On cross-examination, she reiterated that the Respondent threatened PW1 and that the maize crop that he had vandalized was mature and ready for harvest.
14. PW4, D.B, testified that she was 16 years old student. It was her evidence that on 10th December 2020, while at home with her siblings while her mother was taking a bathe outside the house, she saw her mother running into the house while naked with her clothes clutched to one of her hands. That she then heard a voice shouting from outside “ni vizuri umekimbia ningekukatakata” “ It is well that you have ran off otherwise I would have butchered you”. That the then peeped She through the window and saw the Respondent herein. PW4 told the court that the Respondent always had issues with them and maintained that the road outside their home was his yet it was just a pathway. She did a dock identification of the person she saw on the incident day as the Respondent who was then on the dock.
15. On cross-examination, he told the Court that the Respondent did not quarrel with PW1 during the day, but the incident happened at night and the disputed road is on their land.
16. PW5, Kennedy Khasoto, testified that on 10th December 2020 while heading home from work, he decided to use a short route whhen he heard noises ahead of him. He told the Court that he moved closer to observe what was happening and he saw the Respondent holding a torch and slashing maize. A crowd had already gathered at the scene. He told the Court that he heard the Respondent say “Ningekuua lakini uko na bahati umetoroka” “ You are lucky to have escaped as I would have killed you.” That given that he had been exhausted from his day work he did not bother to stop and proceeded to his home. That the next day he met with PW1 and her children, and he narrated to them of what he had heard and observed. Further that he shared the photographs of the vandalized maize crop with the complainant. He told the Court that he was acquainted to both the Complainant and the Respondent prior to the incident and that he never disagreed with the Respondent.
17. On cross-examination, PW5 told the Court that he had seen the Respondent and had recognized him immediately, as he was slashing the Complainant’s maize, but he did not know whom he had been referring to as he said “ningekuua” “ I would have killed you”. He told the Court that he shared the photos of the slashed maize with the police when he was summoned to record his statement.
18. PW6, No. 70836 Tony, testified that he received a film from P.C Mulongo who requested him to process the same and produce the same in Court. That pursuant to those instructions he had printed 2 photographs, prepared a certificate dated 4th August 2021 and availed all with an exhibit memo list. He produced the same in Court as exhibits (PEXH 1(c) (b) and 2 (c)) respectively.
19. On cross-examination, he told the Court that he never visited the scene and he was not the one who took the photographs.
20. PW7, Chrispinus Wanjala, testified that he worked as an agricultural officer at West Nalondo Ward and had attended Court for purposes of producing a report with regards to the status of the farm of PW2. He had noted that the land was ¼ an acre. It was his evidence that the quantum of damages on damaged maize crop pegged at Kshs. 200, 000/= per hectare as per government rates. Based on that rate, he awarded PW2 Kshs. 18,000/=, as per his crop damage assessment report dated 23rd December 2020 which he produced as PEX 4.
21. On cross-examination, he told the Court that he only visited the land on the instructions of the area OCS with an OB accompanying it and that it was PW2 who lodged a report with his office. He told the Court that the maize was in the 2nd season, fruiting stage and he did not know about the issue of land boundary or road.
22. PW8, Matthew Nameli Korney, testified that he was a County Surveyor in Bungoma County and he had attended Court for purposes of producing a report dated 20th September 2022 with regards to land parcel E. Bukusus/S. Nalondo/3815, E. Bukusu/S. Nalondo/6271 and E. Bukusus/S. Nalondo/6272. This witness testified that after receiving a letter from DCI office on 20th September 2022, he visited land parcel E. Bukusus/S. Nalondo/3815 and discovered there were crops planted by the owner and there was land between parcel E. Bukusus/S. Nalondo/3815 and E. Bukusu/S. Nalondo/6272 measuring 6 meters wide as per the mutation form but on ground it was smaller. According to him, the owner of land parcel E. Bukusus/S. Nalondo/3815 was wrong for closing the road and farming on the land while the owner of land parcel E. Bukusu/S. Nalondo/6272 put up a perimeter wall on his land boundary, not on the road. He produced his report as PEXH 5.
23. Upon the Respondent being placed on his defence, and called one witness.
24. DW1 told the Court that on the material date he was at home and the road to his home had been closed up and upon inquiring from his wife, he had been informed that it was a neighbor ( the complainant) who had closed it and upon confronting the Complainant, the latter proceeded to report him for threatening her.
25. On cross-examination, he denied cutting up any maize and reiterated that nobody ever threatened the Complainant.
26. DW2, Julius Makokha, testified that the Respondent was his son and that he had given a road through the land, but the Complainant had attempted to close it.
27. On cross-examination, he told the Court that the plot purchased by the Complainant is beside the road and that the road does not form part of the plot, as a motor vehicle can pass by the road which is next to the Complainant’s house. He told the Court that the Complainant had not planted any maize.
28. The trial Court evaluated the evidence and found that all the Appellant’s evidence incredible and unreliable, thus the Court found it untrustworthy to rely upon the same. The trial Court proceeded to acquit the Respondent under Section 215 of the Criminal Procedure Code on both counts.
D. APPEAL
29. The Appellant was dissatisfied with the decision of the lower Court wherefore he filed the appeal herein which it premises on the following grounds that; -
a. The learned magistrate erred in law and in fact and misdirected himself by holding that the Prosecution had failed to prove its case beyond reasonable doubt.
b. The learned magistrate erred in law and in fact by failing to analyze the evidence tendered in Court vis-à-vis the required ingredients of the offences charged.
c. The learned magistrate erred in law and in fact for taking into consideration irrelevant facts against the offence charged.
d. The learned magistrate failed to critically analyze the evidence and thus arrived at an erroneous decision.
30. Vide directions dated 13th February 2025, the appeal was canvassed by way of written submissions. Both parties complied.
E. ANALYSIS AND DETERMINATION
31. The issue for this Court’s determination is whether the Appellant proved the offences of threatening to kill and malicious damage to property as against the Respondent beyond reasonable doubt.
32. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. The Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR rendered itself on the standard of proof as hereunder:
“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-
‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
33. With regards to Count I, threatening to kill the Complainant, the evidence of PW2, PW3 and PW4 establishes that the Respondent uttered words which amounted to threats to kill PW1. PW5 saw the Respondent inaction as he slashed the complainants maize crop while uttering threats; “Ningekuua lakini uko na bahati umetoroka”. This is corroborative evidence to that of PW1, PW2, PW3 and PW4. PW5 had no bad blood with the Respondent and was acquainted to both the Respondent and the complainant. The Respondent’s defence did not shake the credibility of the Appellant’s witnesses neither did it create any doubt about the veracity of their testimonies. I thus find that the Appellant had proved Count 1 beyond any reasonable doubt.
34. With regards to Count II, Section 339(1) of the Penal Code provides as follows:
“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.”
35. The elements of the offence of malicious damage to property were stated in the case of Wilson Gathungu Chuchu vs. Republic [2018] eKLR as follows:-
i. proof of ownership of the property,
ii. proof that the property was destroyed or damaged,
iii. proof that the destruction or damage was occasioned by the accused; and
iv. proof that the destruction was willful and unlawful.
36. Actus reus and mens rea are crucial parameters of criminal law that must both be established to sustain a conviction and the Appellant ought to have established that the Respondent acted with malice. This Court is persuaded by the reasoning of the Court in the case of Simon Kiama Ndiagui vs. Republic (2017) eKLR where Ngaah J. stated as follows:
“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful.”
37. The owners of property are entitled to defend their property. They are not entitled to destroy the trespassers goods. However, even without malice, destruction can occur. The evidence tendered, does amount to malicious destruction. This is because it haboured most of the elements of malicious destruction as identified in the case of Wilson Gathungu Chuchu v Republic [2018] eKLR.
38. There was evidence tendered on the ownership of the property by PW8 who testified before the Court that after receiving a letter from DCI office on 20th September 2022, he visited land parcel E. Bukusus/S. Nalondo/3815 and discovered there were crops planted by the owner (PW2) and there was land between land parcel E. Bukusus/S. Nalondo/3815 and E. Bukusu/S. Nalondo/6272 measuring 6 meters wide as per the mutation form but on ground it was smaller. According to him, the owner of land parcel E. Bukusus/S. Nalondo/3815 was wrong for closing the road and farming on the land while the owner of land parcel E. Bukusu/S. Nalondo/6272 put up a perimeter wall on his land bordering, not on the road. He produced his report as PEXH 5.
39. Based on the forgoing evidence, it is clear that PW1 and PW2 erred in closing the road and farming thereon thus denied the Respondent access to his property. That notwithstanding, the actions of the Respondent are inexcusable. He ought to have followed lawful channels to resolved the issue. PW1, PW2, PW3, PW4 and PW5 witnessed the destruction the maize crop by the respondent. PW6 produced photographs of the destroyed maize crop and certificate of production as PEX 1a, b, c and 2c. PW7 produced the crop damage assessment report as PEX 4 which placed the value of the damaged maize crop at Kshs. 18,655/=.
40. On the balance I do find that the Appellant had proved its case on beyond reasonable doubt to warrant this Court to set aside the trial’s Court holding and convict the Respondent both Count I and Count II respectively.
41. The upshot of the above analysis is that the appeal is found to have merit and is hereby allowed.
42. The Respondent is committed to Bungoma Maximum Prison.
43. A pre -sentence report to be filed within 14 days.
44. Mitigation and sentencing of the respondent are scheduled on
19.1.2026.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
MS KIBET FOR APPELLANT
RESPONDENT
PETER MACHONI - COURT ASSISTANT