Maxwel Masinde v Republic

term of five (5) years imprisonment for the Count I and one (1) year imprisonment for the Count II. Both sentences were ordered to run concurrently. 5. Dissatisfied with this outcome, the Appellant lodged the instant appeal, initially vide Petition of Appeal and subsequently after being granted leave to amend his grounds, the resultant was the Amended Grounds of Appeal dated 20/06/2024. The appeal is anchored on several grounds that in summary faults the trial court’s findings on both conviction and sentence. The Appellant contends that the learned trial magistrate erred fundamentally in law and fact by failing to recognize that the prosecution’s case was permeated and riddled with material inconsistencies and lacked the requisite proof beyond a reasonable doubt. Trial proceedings 6. The prosecution’s case at the trial court was built on the evidence of three witnesses and various exhibits. PW1, Sergeant Joseph Kiboen, an officer in charge of court orderlies, testified that on the morning of 15/09/2023, while organizing the daily operations of the court orderlies, he was informed by Corporal Kabaga and a minor inmate, Victor Osoro, that the door to the Chief Magistrate’s Court No. 1, had been broken. PW1 immediately went and inspected the scene and found the door significantly damaged. He further stated that upon reviewing the court’s CCTV footage, he observed the Appellant escaping through the main gate of the premises. A physical headcount confirmed that the Appellant, who was supposed to be in the cell, was the only individual missing. 7. He identified and produced several photographs of the broken door and a pair of black boots as exhibits. He alleged that the Appellant used the boots to kick the door open and referenced a screw as a potential tool used in the breakage. 8. During cross-examination, PW1 clarified the timing of the event to be around 9:50 AM and denied the Appellant’s suggestion that he had been instructed by an officer to leave the court premises through the main entrance. He emphasized that while prisoners are searched, they are allowed to keep personal stores, and noted that the CCTV footage remained in the court’s custody. 9. PW2, Corporal Electina Kabaga, also an officer at the Kitale Police Station, stated that at 7:45a.m. on the material day, she prepared 14 prisoners, including the Appellant, to be transported to the court and were booked out under OB xx/15/9/2023. She testified that the cell doors at the court were checked and confirmed secure before the prisoners were placed inside. Shortly thereafter, an inmate named Victor alerted the officers that one of the prisoners had escaped. A subsequent headcount identified the missing prisoner as Maxwel Masinde. 10. She reiterated that a police officer was on guard but did not hear the actual breaking of the door, likely due to the noise of the ongoing court preparations. She noted that the Appellant failed to appear for plea in Court 8, resulting in a warrant of arrest being issued. 11. In cross-examination, she admitted that while a search was conducted, she did not find any weapons on the Appellant at the time of transit, but maintained that the boots he wore were sufficient to cause the damage. 12. PW3, testified as the personnel who processed the scene of the crime and recounted that the Appellant had damaged the cell door that connects to the main court and fled through the main entrance. He took photographs of the damaged latch and the overall state of the Chief Magistrate Court No. 1 entrance. PW3 produced the seven photos, marked P Exh 1-7, along with a certificate of photographic print, P Exh 8, to the court. He further confirmed that after being traced through the Tiwani location, the Appellant was re-arrested later that evening. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4119/eng@2026-03-25 2

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13. The evidence from the three witnesses satisfied the court that a prima facie case had been established and thus the appellant was put on his defence. 14. The Appellant elected to give an unsworn defense in which he admitted to have been present at the Kitale Law Courts on 15/09/2023 as a remandee for a robbery case. However, he claimed that while in the court cells, a police officer informed him that his presence was required back at the police station regarding another matter and allowed him to leave the cell freely. He denied having ever broken the door or used his boots as a tool for destruction. 15. It is the aggregate of the evidence recorded that was evaluated by the court to reach the judgment now challenged in the appeal. 16. The appeal has been canvassed by way of written submissions which the court has had a chance to read through and recaps same below by way of summation. Submissions 17. In his written submissions, the Appellant challenges the safety of the conviction on the ground of the Best Evidence Rule. He argues that the prosecution’s failure to produce the CCTV footage, which PW1 claimed captured the escape, is fatal to their case. He contends that the withholding of this footage suggests that it would not have supported the prosecution’s allegations. Relying on the principle in Woolmington v DPP [1935] AC 462, the Appellant maintains that the burden of proof never shifted to him and that the prosecution failed to exclude the reasonable hypothesis that he was allowed to leave as he claimed. 18. The Appellant further submits that the trial court erred in failing to call vital witnesses whose names appeared in the testimonies. He specifically points to Victor Osoro, the minor inmate who supposedly witnessed the escape, and the Area Chief who assisted in the arrest. He argues that the trial magistrate’s failure to use powers under Section 150 of the CPC to summon these witnesses resulted in a miscarriage of justice. Regarding sentencing, he emphasizes the illegality of the five-year term, citing Section 36 of the Penal Code which limits punishment for misdemeanours to two years, and the failure to consider the period of nine months spent in pre-trial remand. 19. The Respondent on the other hand argues that the prosecution successfully proved all three elements of the offenses: that the Appellant was in lawful custody, that he escaped without authority, and that he caused malicious damage to property. It is contended that the testimonies of PW1, PW2, and PW3 were well-corroborated and that the photographic evidence of the broken door provided a clear physical link to the Appellant’s unauthorized departure. 20. The Respondent characterizes the Appellant’s defense as escapist and a mere denial that failed to raise any reasonable doubt in the face of the prosecution’s evidence. Regarding the missing CCTV footage, the Respondent argues that while it would have been additional evidence, the oral testimonies and photographs were sufficient to establish the actus reus of the offenses. However, the Respondent made a significant concession on the sentence for Count I. 21. Acknowledging the statutory limits, the Respondent conceded that the five-year sentence for escape from lawful custody was illegal as it exceeded the maximum two-year limit for misdemeanours under Section 36 of the Penal Code. The Respondent urged this court to revise the sentence to the legal upper limit of two years while maintaining the one-year sentence for Count II. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4119/eng@2026-03-25 3

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Issues, Analysis and Determination 22. Being a first appeal, the Court is obligated to re-evaluate the evidence as a whole, and proceed by way of a retrial, with a view that it reaches its own conclusions, while making allowance for the fact that the trial court saw and heard the witnesses. 23. The court has perused the trial record, the grounds of appeal, and the respective submissions, identifies the following two issues for determination being: (i) Whether the prosecution proved the elements of the offences of Escape from Lawful Custody and Malicious Damage to Property beyond a reasonable doubt; and, (ii) Whether the sentence of five (5) years for Count I and one (1) year for Count II was legal and appropriate. 24. On the first issue on whether the prosecution proved its case on the two counts with which the Appellant was charged to the required standards, it is undisputed that the Appellant was in lawful custody on the morning of 15/09/2023. The primary question is whether his departure was authorized. The Appellant claims he was told he could leave, while the prosecution presents a scenario of a broken door and an unauthorized flight. 25. The law as coded only requires the prosecution to prove that the appellant was in lawful custody and that he left that custody without lawful authority. The prosecution in fact proved that the appellant was in custody and due to take a plea before the court. That evidence satisfied the court as prima facie, the kind of a case a court could convict upon even in the absence of additional evidence provided the accused does not controvert same. It is of note that the accused gave unsworn statement which in law is no evidence. The effect is that the prima facie case established by the prosecution at the close of its case remained undisturbed. 1. Those circumstances left the court with only the prosecutions evidence to decide the matter. The issue for the court is whether the evidence by the three witnesses as supported by the photographs produced as P Exhibit 1-7, showing a damaged door latch, was is sufficient to demonstrate that force was used to gain exit. The court is satisfied as was the trial court that having been in lawful custody, the appellant escaped therefrom unlawfully and was thus safely convicted of count I of the charge sheet. In addition. the testimony of PW1 and PW2 on the immediate headcount and the alert from an inmate provides a context of urgency and discovery that is inconsistent with an authorized release. 2. While it could have added more clarity to produce the CCTV footages and call the inmate who alerted the police of the escape, the court is satisfied that even without such the case was sufficiently proved and no dent would have been caused to the case by an adverse inference. There having been proof of escape from custody, the onus then shifted upon the accused to prove that he was indeed lawfully discharged. His attempt at discharging that burden was no attempt at all when he chose to offer no plausible evidence. 3. The evidence of the broken door at the very location where the Appellant was held, coupled with his immediate absence and subsequent re-arrest, creates a chain of events that leads to the logical conclusion of an unauthorized escape. The court holds that while the non-production of the CCTV is a lapse in the prosecution’s case, it does not, in this instance, invalidate the otherwise credible and corroborated oral and documentary evidence recorded of unlawful escape. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4119/eng@2026-03-25 4

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4. On the second count regarding Malicious damage to property under Section 339(1), the prosecution was required to prove wilful and unlawful destruction. The state of the door, as testified by PW2 who checked it that morning and PW3 who photographed it later, provides the requisite proof of destruction. The Court finds that the trial court did not err in its analysis of the defense, as the prosecution’s case on both counts was overwhelming. 5. On sentencing, the court notes that the trial court imposed five years imprisonment for the offence of escape from lawful custody under Count I. The offence, under Section 123 of the Penal Code, is a misdemeanour. The court further notes that for misdemeanours where no specific punishment is provided, Section 36 of the Penal Code caps the punishment at two years. 6. The Respondent’s concession on this point is legally sound. A sentence that exceeds the statutory maximum is illegal and must be set aside as was held in Brian Musyimi Kyal v Republic. 7. Because the court must proceed by way of a retrial, it finds that an illegal sentence calls for its appellate supervisory powers for the ends of justice to be met for the appellant. The court exercises its revisionary jurisdiction, quashes the unlawful five-year sentence for count I and in its place, substitutes a sentence of two-year maximum. 8. Furthermore, the Appellant spent approximately nine months in pre-trial custody from his arrest in September 2023 to his sentencing in July 2024. Section 333(2) of the Criminal Procedure Code is mandatory that the court shall take into account the period spent in custody. The court of appeal has since its decision in Ahamad Abolfathi Mohammed & Another v Republic eKLR made it trite that taking into account must manifest in a proportional reduction of the sentence. 9. In this matter the trial court’s failure to explicitly credit the Appellant for the time spent in remand custody constitutes substantive error that must be rectified on appeal. The error is hereby corrected by an order that because the appellant spent the entire trial period in custody, that period shall be applied to proportionately reduce his prison term. The jail term is directed to be computed from the 15.09.2023, being the date, he was arrested and placed into custody. 10. In conclusion the Court finds that the prosecution proved its case on both counts beyond a reasonable doubt and that the conviction was apt and safe. The appeal on conviction fails in entirety and thus dismissed. 11. However, the appeal against the sentence is successful in that the five-year sentence for Count I is determined illegal and is hereby set aside. In its place, the Court substitutes a sentence of two (2) years imprisonment. The one-year sentence for Count II is upheld, but both sentences shall run from the date the appellant was arrested and placed into incarceration. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MARCH, 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4119/eng@2026-03-25 5

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