Republic v Isale & another (Criminal Case E712 of 2025) [2026] KEMC 688 (KLR)
The bottom line
#A Bungoma court convicted two people of cutting trees, ruling that an accused who skips trial can be convicted in their absence.
What this practically means
#Executive summary
#Key legal issues
#Proceeding with trial in the absence of an absconded accused
The court allowed the prosecution to proceed in the absence of the 1st Accused Person, holding that Article 50(2)(f) of the Constitution permits trial in absentia where the accused willfully makes attendance untenable, whatever the gravity of the offence.
Relying on Republic v Galma Abagaro Shano [2017] eKLR and the decisions in Republic v Teteror and Bett v Republic, the court reasoned that an accused who absconds waives the right to be present at trial, and the court may hear, conclude and even convict and sentence in their absence. The finding in Galma Abagaro Shano that section 206(1) of the Criminal Procedure Code is inconsistent with Article 50(2)(f) insofar as it limits trial in absentia to misdemeanours was adopted.
Whether the prosecution established a prima facie case on ownership of the cut trees
The court held that although the act of cutting was established, the evidence on ownership of the trees was insufficient to place the Accused Person on defence, because the prosecution witnesses conceded the trees lay along the common boundary and the investigating officer never interviewed the vendor of the land to the complainant.
PW2, PW3 and PW4 each conceded that the felled trees were near or along the common boundary between the complainant and the Accused Person. PW4 relied only on sale agreements and a live fence, and admitted he did not interview Kennedy Makhati, from whom PW1 bought the land, about ownership. The court expressly stated the evidence was insufficient to place the accused on his defence, yet the determination nevertheless records a conviction – an unresolved internal tension.
Identity of the perpetrator / principal offenders
The court found that PW2 felled the trees under the Accused Person's supervision and instructions, and reproduced section 20 of the Penal Code on principal offenders and section 21 on common intention, citing Republic v Mohammed Wanyoike and Njogu v Republic.
The court held the question of whether the Accused cut the trees was settled by the prosecution's evidence: PW2, the power saw operator, testified he was called by the Accused Person and directed to fell the trees, confirming the felling. Section 20 deems every person who actually does the act, aids, abets, counsels or procures the offence guilty of it, and section 21 deems each participant in a common unlawful purpose to have committed the offence.
Legal principles established
#- An accused person who willfully makes their attendance untenable by absconding waives the right to be present at trial, and the trial may proceed, conclude and result in conviction and sentence in their absence regardless of the gravity of the offence, per Article 50(2)(f) of the Constitution.
- 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 person.
- The ingredients of the offence under section 334 of the Penal Code are that the cutting must be willful and unlawful, the trees must have belonged to the complainant, and the accused must have been the person who cut them.
- Common intention under section 21 of the Penal Code need not be foreplanned and may be inferred from the acts of the perpetrators.
Court orders
#- 1.The Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of cutting down trees contrary to section 334(c) of the Penal Code
- Jurisdiction invoked
- Original criminal jurisdiction of the magistrate's court under the Penal Code (section 334(c)) and the Criminal Procedure Code (sections 206(1), 215)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isale & another (Criminal Case E712 of 2025) [2026] KEMC 688 (KLR)", Case Analysis (2026). Criminal Case No E712 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/688/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.