Republic v Makhati (Criminal Case E321 of 2025) [2026] KEMC 657 (KLR)
The bottom line
#A Bungoma court acquitted a man of cutting his neighbour's trees because prosecutors couldn't prove the trees actually belonged to the neighbour.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prosecution has established a prima facie case against the Accused Person requiring him to be placed on his defence
- 2.Whether the evidence established that the cut trees belonged to the complainant
Key legal issues
#Whether the prosecution established a prima facie case of ownership of the cut trees by the complainant
No - the trees were cut along a common boundary and the prosecution failed to produce a survey plan or call Kennedy Makhati, the vendor, leaving the evidence barely adequate
The trees were felled by PW2 under the Accused's direction, so the act of cutting was proved. However, ownership of the trees depended on ownership of the land where they stood. PW2, PW3 and PW4 conceded the trees were along the common boundary. The investigating officer relied only on sale agreements and a live fence, and did not interview Kennedy Makhati or produce a survey plan. Given the cujus doctrine linking trees to soil ownership, this evidence was barely adequate.
Whether an adverse inference should be drawn from the prosecution's failure to call Kennedy Makhati or produce a survey plan
Yes - the adverse inference is drawn that the withheld evidence would have been fatal to the prosecution's case
Applying Donald Majiwa Achilwa v Republic (relying on Bukenya v Uganda), where the evidence barely establishes the prosecution case and a material witness is withheld, the court may infer the withheld evidence would have been adverse. The court found that the survey plan or the vendor's testimony was necessary to establish ownership of the boundary land, and its absence inclines the court to draw the adverse inference.
Legal principles established
#- A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by the accused
- Where the evidence adduced barely establishes the prosecution case and the prosecution withholds a material witness, the court may infer that the withheld witness's evidence would have been adverse to the prosecution
- The ingredients of the offence under section 334 of the Penal Code are willful and unlawful cutting, ownership of the trees by the complainant, and that the accused cut them
Court orders
#- 1.The Accused Person is acquitted under section 210 for the offence of cutting down of trees contrary to section 334(c) of the Penal Code
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction of the magistrates' court over the offence of cutting down trees contrary to section 334(c) of the Penal Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the reasons above, the Accused Person is acquitted under section 210 of the Penal Code for the offence of cutting down of trees contrary to section 334 (c) of the Penal Code.
It is against this backdrop that this court finds and holds that the evidence on record is barely adequate for the Accused Person to be placed on his defence to give evidence in rebuttal.
In the absence of the said evidence, the evidence on record is barely adequate to establish a prima facie case that the Accused Person cut trees on the complainant's parcel of land, thereby failing to establish a prima facie case that the trees cut by the Accused Person belonged to the complainant.
Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.
Issues in the judgment
#The judgment states the Accused was acquitted under 'section 210 of the Penal Code', but section 210 (acquittal at the close of the prosecution case) is a provision of the Criminal Procedure Code, not the Penal Code.
The charge particulars state the incident occurred on 'the 12th day of March' without a year, marked '(sic)' in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Makhati (Criminal Case E321 of 2025) [2026] KEMC 657 (KLR)", Case Analysis (2026). Not stated in the judgment (Criminal Case, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/657/eng@2026-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.