Eric Kieya Onchwari v Director of Public Prosecutions

PW3, a grandson of PW1, stated that he was at home during the incident but did not directly witness the appellant lighting the fire. His evidence was largely derivative of what PW1 told him. PW4, the investigating officer, produced photographs of the burnt house. 5. In respect of Count II (forcible detainer), PW2, the purchaser of the disputed parcel of land, produced a copy of the title deed in his name and an eviction order, and testified that the Appellant continued to occupy the land despite the order. 6. The Appellant denied both charges and raised an alibi, asserting that he was elsewhere during the incident. He testified that on the material day he was attending court and later went to Ekerenyo police station. DW3, Charles Nyamongo, corroborated the alibi, stating that he was with the Appellant throughout that day. The Appellant contended that he had been falsely accused due to a family and land dispute involving PW1 and PW2. 7. In his written submissions before this Court, the Appellant argued that the charge sheet was defective because it joined two distinct offences that involved different complainants and occurred at different times. He relied on Benard Ombuana v Republic [2018] eKLR and submitted that the joinder of the arson and forcible detainer counts offended section 135(1) of the Criminal Procedure Code as they were neither founded on the same facts nor of similar character. 8. As at the time of writing this judgment, the Respondent’s submission had not been filed. Issues for Determination 9. Upon re-evaluating the record, the following issues arise for determination: i. Whether the charge sheet was defective by reason of misjoinder ii. Whether the prosecution proved the charge of arson beyond reasonable doubt iii. Whether the prosecution proved the charge of forcible detainer beyond reasonable doubt iv. Whether the conviction and sentence were safe in law. Analysis and Determination 1. Whether the charge sheet was defective 10. Section 135(1) of the Criminal Procedure Code permits joinder of offences in one charge sheet where the offences are founded on the same facts or form part of a series of offences of the same or similar character. The record shows that Count I (arson) related to a fire that occurred on 15th December 2020, while Count II (forcible detainer) concerned unlawful occupation of land continuing up to 30th July 2022. The complainants in the two counts were different, PW1 being the complainant in the arson count and PW2 in the forcible detainer count. The offences were thus distinct in time, facts, and parties. 11. Whereas the trial court was entitled to proceed on both counts, the joinder was irregular as the offences were not founded on the same facts or similar in character. However, applying the principle in Benard Ombuana v Republic (supra), such misjoinder is not automatically fatal unless it occasioned prejudice. The Appellant fully participated in his trial, cross-examined all witnesses, and defended both charges without apparent confusion. I therefore find that although the charge sheet was irregularly framed, the defect did not occasion a miscarriage of justice. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18544/eng@2025-11-13 2

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2. Whether arson was proved beyond reasonable doubt 12. The ingredients of arson under section 332(a) of the Penal Code are: (a) proof of the existence of a building or structure (b) proof that the building was set on fire (c) proof that the accused caused the fire (d) proof that the act was willful and unlawful. 13. There is no dispute that PW1’s house was burned. The issue is whether the Appellant was the perpetrator. The principal identifying witness was PW1, the complainant and father to the Appellant. His evidence formed the foundation of the prosecution’s case. PW3’s evidence was derivative and not that of an eyewitness. 14. The Appellant raised an alibi that he was not at the scene of the crime. This defence was corroborated by DW3, who confirmed that he was with the Appellant at the time of the incident. The prosecution did not rebut or test the alibi. In Kiarie v Republic [1984] KLR 739, the Court of Appeal held that once an alibi is raised, the burden shifts to the prosecution to disprove it. Similarly, in Victor Mwendwa Mulinge v Republic [2014] eKLR, it was held that an unrebutted alibi creates a reasonable doubt in favour of the accused. 15. The trial court dismissed the alibi merely because it was raised at the defence stage. That approach was however erroneous, as the Appellant was unrepresented and entitled to raise his defence at any stage. 16. The Court of Appeal in Roria v Republic [1967] EA 583 cautioned that a conviction based on the evidence of a single identifying witness requires the greatest care, especially if that witness has any motive to lie. PW1’s relationship with the Appellant and the ongoing land dispute necessitated such caution. His testimony, though direct, was uncorroborated by any independent witness or supporting evidence. 17. Upon weighing PW1’s solitary testimony against the unrebutted alibi, I find the Appellant’s defence effectively displaced the prosecution case. 18. Consequently, I find that even though the fact of arson was proved, the identity of the offender was not proved beyond reasonable doubt. The conviction was against the weight of evidence and therefore unsafe to sustain a conviction. 3. Whether forcible detainer was proved beyond reasonable doubt 19. The offence of forcible detainer is defined under section 91 of the Penal Code. It occurs when a person, being in actual possession of land without colour of right, holds it in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace against the person entitled by law to possession. 20. PW2 testified that he purchased land parcel NORTH MUGIRANGO/IKONGE/2997 from PW1 and produced in evidence a copy of the title deed and an eviction order issued in his favour. 21. Although there was evidence that the Appellant continued to occupy the said land, there was no proof that such occupation was accompanied by violence, threats, or conduct likely to cause a breach of the peace. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18544/eng@2025-11-13 3

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22. In the circumstances, I find that while the prosecution established ownership of the land, it failed to demonstrate that the Appellant’s continued occupation was carried out in a manner that caused or was likely to cause a breach of the peace. The Appellant’s occupation, though possibly wrongful in civil law, did not constitute a criminal offence under section 91 of the Penal Code. 23. It follows, therefore, that the prosecution did not prove Count II beyond reasonable doubt. Sentencing Analysis 24. The record demonstrates that the trial court imposed a single sentence of a fine of KES. 400,000 in default seven years’ imprisonment for both counts. Under section 169(2) of the Criminal Procedure Code, the court is required to pass a separate sentence for each count. The two offences in this case were of different nature and gravity: arson under section 332(a) of the Penal Code, a felony punishable by life imprisonment, and forcible detainer under section 91 of the Penal Code, a misdemeanour punishable by a term not exceeding two years or a fine not exceeding KES. 10,000, or both. 25. A composite sentence covering both offences was therefore contrary to law. Even if the conviction on Count II had been upheld, the proper and lawful sentence would have been a fine not exceeding KES. 10,000 or imprisonment not exceeding two years. Conclusion and Orders 26. Having re-evaluated the record and the evidence in light of the law and the authorities cited, I find that the prosecution failed to prove beyond reasonable doubt that the Appellant was the perpetrator of the offence of arson under Count I or that his continued occupation of the disputed parcel of land satisfied the ingredients of forcible detainer under Count II. Both convictions were therefore unsafe. 27. Accordingly, the appeal succeeds in its entirety. I make the following orders: i. The convictions on Count I and Count II are quashed ii. The sentence of KES. 400,000 in default seven years’ imprisonment is set aside iii. The Appellant shall be set at liberty forthwith unless otherwise lawfully held Orders accordingly. DELIVERED AT NYAMIRA THIS 13TH DAY OF NOVEMBER, 2025 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda Appellant - Present For Appellant - Mr. Mongáre For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18544/eng@2025-11-13 4

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