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MagistrateDismissedCriminal Case No E330 of 2021· [2023] KEMC 267 (KLR)

Director of Public Prosecutions v Mwatzenze (Criminal Case E330 of 2021) [2023] KEMC 267 (KLR)

Resident Magistrate's Court
27 July 2023
KKKiongo Kagenyo
3,942 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kwale court acquitted a man accused of cutting eight cows because the prosecution's own witnesses contradicted each other too much to prove guilt.

What this practically means

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Executive summary

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The accused was charged with injuring animals contrary to section 338 of the Penal Code, particulars being that on 22nd October 2021 at Kafichoni village, Kinango sub-county, Kwale county, he willfully and unlawfully wounded eight cows valued at Ksh. 240,000, the property of Mrisa Nyondo. He denied the charge and the trial proceeded, the accused conducting his defence in person while on bond. The prosecution called four witnesses: the complainant PW1 who claimed he saw the accused cutting his cows with a panga; PW2 who corroborated the sighting; the veterinary officer PW3; and the investigating officer PW4. The accused raised a defence of fabrication motivated by a land dispute, jealousy and tribal profiling, and produced the investigations diary and photographs the prosecution had not tendered. The court found material contradictions in the prosecution case: PW1's trial account differed from the initial police report; PW1 and PW2 gave irreconcilable versions of the location of the accused's home; the veterinary officer's report traced to Kinango Police Station although the report was made at Vigurungani; and only 3 of 8 photographs were produced though 8 animals were alleged injured. The court held the identification by recognition was not in doubt, but whether the accused committed the act was, and found credence in the accused's contestation of the locus in quo. Concluding the prosecution evidence bore substantive doubts, the court acquitted the accused under section 215 of the Criminal Procedure Code, discharged him from bond, discharged the surety and ordered the return of the security title deed.

Key legal issues

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01

Whether the accused committed the offence of injuring animals contrary to section 338 of the Penal Code

Holding

The accused was acquitted as the prosecution evidence bore substantive doubts and could not withstand the beyond reasonable doubt test

Reasoning

The court found inconsistencies in the prosecution case: PW1's court account differed from the initial police report; PW2's and PW1's versions placed the accused's home in two opposite directions, an impossibility; the veterinary officer's report traced to Kinango Police Station though the report was made at Vigurungani; only 3 of 8 photographs were produced despite 8 animals allegedly injured. These contradictions cast doubt on the credibility and trustworthiness of the witnesses.

p. 6
02

Locus in quo

Holding

The court found credence in the accused's contestation of the locus in quo

Reasoning

PW1 testified the accused cut the cows at his home while heading to Mwakijembe, while PW2 said the accused's home was on the way to Mamadi, the opposite direction. The court inferred that one cannot be physically in two different places at the same time, creating doubt as to where the animals were injured.

p. 5

Legal principles established

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  • In criminal cases the burden of proof lies on the prosecution and the standard of proof is beyond reasonable doubt

Court orders

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  1. 1.The case against the accused person is dismissed and he is acquitted under Section 215 of the Criminal Procedure Code for the offence of injuring animals contrary to section 338 of the Penal Code
  2. 2.The accused person is discharged forthwith from his surety bond
  3. 3.The Surety Khamisi Matano Chitsangi is discharged
  4. 4.Security document title deed No. Kwale/Kombani Scheme/2340 to be returned to the Surety forthwith

Authorities

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Legislation

  • Penal Codesection 338
  • Penal Codesection 278
  • Criminal Procedure Codesections 210, 211, 215
  • Constitution of KenyaArticle 50(2)(i), Article 50(2)(j)
Jurisdiction invoked
Criminal jurisdiction under section 338 of the Penal Code; acquittal under section 215 of the Criminal Procedure Code

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Director of Public Prosecutions v Mwatzenze (Criminal Case E330 of 2021) [2023] KEMC 267 (KLR)", Case Analysis (2023). Criminal Case No E330 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/267/eng@2023-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.