Republic v Susan Njoki Muriuki & 2 others

Brief background 2. The Respondents were charged with the ofience of destroying crops of cultivated produce contrary to section 334 (a) of the Penal Code. 3. The respondents on the 18th June, 2021 at Kandogu area in Mwea west sub-county within Kirinyaga county jointly and unlawfully destroyed paddy rice valued at Kshs 21,375 the property of Lucy Wanja Simon. 4. The trial after considering all the evidence placed before it, acquitted the Respondents under section 215 of the Criminal Procedure Code on 25th September, 2024. Prosecution case 5. PW1- Lucy Wanja She lives in Kandongu village and is a farmer. The 1st Accused is her sister and the rest her children. On material day the accused persons ploughed her rice with a tractor. She reported to police. They were referred to Agricultural Officer who came and assessed damage and made a report. She is an eye witness with Mary - her witness. They had only planted. That day at 6.00am. The damage was Ksh. 21,000. Agricultural Officer report - MF1 -1. 6. On cross-examination, she stated that that her husband Sospeter has married accused 1 too. 7. PW2- Mary Wagatwi She lives Ruguru. She is a farmer and the 1st Accused co - wife. Accused 2 and Accused 3 are her children. PW1 is also her co-wife. On material day they planted rice with PW1 in Sospeter’s land - who is their husband. The three came and destroyed the seedling that they had planted in the seed bed. They used a tractor. They reported the matter and agricultural came and assessed damage. 8. On cross-examination, she stated that she is the 1st wife, the accused is the 2nd wife. They filed succession with PW1. They did not include 1st accused. The land belongs to Sospeter. He is now deceased died 2020. The 1st Accused cultivate in the suit land. PW1 is 3rd wife. They planted at 6.00a.m. (rude). She is an old lady. She cannot remember. It was past 8 a.m after planting. She left home. Later, she returned and found the destroyed field. She did not find them. 9. PW3- Michael Mwangi from Kimbimbi is an Agricultural Officer. In June 2021 he was sent by officers at Kiamachiri to assess damage at Lucy’s land. He went and found one acre ploughed with a tractor. There was a rice nursery that was destroyed. He prepared a report damage as per report. MFI - I now PEX1(No evidence of land in question). 10. On Cross – examination, he stated that the report is dated 20/6/2023. He visited the scene 19/06/2023. He does not have the police referral letter. The accused were not present. The report has no particulars of ofience suspects. The area is 38 m. The damage is the seedlings costs. I did not carry the list of prices. Re – Examined, he stated that he visited the scene 22/06/2021. He has forgotten dates. 11. PW4 -No. 84043 Pc Daniel Miluwi, the Investigating Officer testified that on 18/06/2021 about 10.00 am while on duty he received the victim over this matter. That about 9.00 am at his Kandongu rice farm, three suspects now before court ploughed her land and destroyed rice nursery. The three had hired the tractor. He and other officers visited the scene and found accused 2 and accused 3 still there. They interrogated them and claim victim was their aunt. They alleged the land belonged to their dad Sospeter and that the victim was not the owner. They went back to station and noted victim is their step mother to Accused 2 and Accused 3 and sister to accused 1. He also noted accused 1 was 1st wife of Sospeter and victim 2nd wife. He noted the scene is within Sospeter land and each had a portion https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 2

page 2 of 8

allocated. He realised the 3 made a mistake for destroyed rice nursery bed over land disputes. He sent Agricultural Officer who brought a report (referring to PEX 1). He charged the three in court. The suspects are at the dock pointing to accused. 12. On cross-examination, he stated that the ofience happened on 18/06/2021 according to his record it is still 18/06/2021. The copy he supplied is dated 16/06/2021. He confirmed (Investigations diary is altered). He did not find accused at the scene. She was seen by reportees. Parties are family members. He is not aware of a land dispute and case against victim in 2020 had no documents of purchase of seeds. He did not interview neighbours. He said the rice was waiting transportation. It was seedlings nursery bed they were mature. On 22/06/2023, the photos could not have been clear. They may have dried. You could be right there being no seedlings awaiting transportation. Defence Case 13. DWI - Susan Njoki Muriungi Gathuthuma, a tea plucker. She knows about this ofience. On 16/06/2021 she was at home. She did not meet Lucy and Mary witnesses. On 18/06/2021 she was at home and did not meet Lucy and Mary. That day she was picking tea from 8.00am to 4.pm with Chris, Angela and co- accused. On 16/06/2021 her co accused called her on phone that they were arrested at Mwea. She went and freed them on bond. On 29/06/2021 she went to Mwea with her co accused to check on water about 9.00 am at the farm. Around noon Francis went to take tea. She was left with accused 3 while controlling irrigation water in the rice paddies. Lucy Wanja brought police and they arrested accused 3 and her. They were two males and one female officers. She never met Mary for the 3 days. She saw her first when she lost her husband. She claimed to be her co wife. Her co-accused are her children. She denies the ofience. The report of Agricultural Officer does not touch on her land. The subject land is hers for over 20 years. 14. On cross-examination, she stated that she has utilized suit land for over 20 years. Muriuki Sospeter is her husband. He is the owner of the land. Lucy Wanja is her sister. She is not wife to Sospeter Muriuki. She does not know Mary. She appeared after death of her husband. They did not destroy any rice. They were arrested on 29/06/2021. 15. On re-examination, she stated that she went to the farm on 20/06/2021 only. There was no rice. 16. DW2- Francis Munene Muriuki lives in Gathuthuma and is tea plucker. On 16/06/2021, him and his sister, 2nd accused went to their farm in Mwea to irrigate. Two police officers’ male and female came and arrested them. They were with Lucy. They called 1st accused who came and bailed them out. On 18/06/2021 he plucked tea the whole day. He never went to Mwea. He did not meet the complainants. On 29/06/2021 the three of them went to their farm in Mwea for irrigation. 17. He went to take tea. On return he did not find the two. He never met the victims. He learnt they were arrested. He is a rice farmer for about 2 years. They did not destroy any rice nursery. The Agricultural Officer report does not refer to any nursery. Lucy is his aunt. He does not know Mary. Mary claims to be his late father’s wife. He saw her during the burial. 18. On re – examined, he stated that on 18/06/2021 he did not go to the farm. On 16/06/2021 they were informed that they destroyed rice. He denies the ofience. They did not have marital issues. 19. DW3 - Catherine Wanjiru Muriuki, she lives in Gathuthuma. On 16/06/2021 they were arrested with the 2nd accused as they worked in their Mwea farm - irrigation. Three officers, one a lady arrested them. They were brought by Lucy Wanja. Their mum, 1st accused came and bailed them out. They deny the ofience. They were not told of ofience at scene. On 18/06/2021 she spent at home with Susan Njoki plucking tea. That day and also 16/06/2021 she never met Mary. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 3

page 3 of 8

20. On 29/06/2021 with her co accused as they returned to the farm, police arrested 1st accused and myself, the 2nd accused had gone to take tea. Lucy brought the police. One a lady. She denies ofience. They did not destroy any nursery. The Agricultural report does not refer to any nursery. She is conversant with rice farming. 21. On cross – examination, she stated that Lucy does not have rice field next to them same to Mary. She never saw Mary for days. On 16/06/2021 she was with 1st accused only and also on 29/6/2021. On re – examination, she stated that they were found seated in the farm controlling irrigation water. 22. DW4 - Irene Njeri from Gathuthuma knows the accused as she picks tea in their farm. On 18/6/2021 they spent in their farm picking tea the whole day. They parted way about 6.00pm. 23. On cross- examination she stated that she was first in the farm on 18/06/2021 at 7.00 am. They came about 8.00 00am. I am not sure. The 2nd accused arrived at 7.00 am. The 1st and 3rd accused 3 arrived later. She did not know if they passed elsewhere. They spent the whole day in the farm. Appellant submissions 24. 25. On whether the essential ingredients for the ofience were proved beyond the appellant relies in the case of Republic v Christopher Bwanga [2019] KEHC 5081 (KLR) where the court stated that the ingredients of the ofience of destroying a crop of cultivated produce are: 1. Evidence of destruction of a crop of cultivated produce. 2. Whether the act was willful and unlawful. 3. Whether the crop belonged to the complainant. The report from the agricultural report clearly showed that there was a destruction and the agricultural officer went to assess the damage after being informed by the investigating officer. The appellant submits that the word willful when used as an element of ofience involves conscious wrong or evil purpose on the part of the actor regardless of whether the act is wrong or right. But when it is coupled with the term unlawful, it means the act was not authorized by law and therefore illegal. In Wambua Kameta & another Vv Republic [2016] KEHC 6047 (KLR) the court cited with approval the case of Raible v The State 1991 BLR 315 (HC) Botswana elaws, it was held: “ The mens rea of the ofience created by the Section is expressed in the words “Willfully and unlawfully”. The injury to the property should not only be willful but it should also be unlawful. The ordinary meaning of willful is “deliberate” or “intentional”. When the act is said to have been done unlawfully it means that it was done deliberately and intentionally not by accident or inadvertence”. 26. It was submitted that from the assessment of PW3, he testified that upon reaching the land, the rice nursery was clearly destroyed as a result of being ploughed by a tractor. The above circumstances therefore show that this was a deliberate act and as such the prosecution proved willfulness and unlawfulness. 27. Pw2 stated that she planted the said rice at 6am with the complainant and later left for her house. She returned and found that the rice had been destroyed. The fact that the crop belonged to the complaint was not challenged at all and the agricultural officer came to assess the land at the request of the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 4

page 4 of 8

28. PW4 who is the investigating officer, testified that when he visited the scene, the 2nd and 3rd Respondent were still at the scene claiming that the said land belonged to their deceased’s father and that the complainant is not the owner. 29. The trial court in its judgment stated that the prosecution failed to prove ownership of land and on this basis acquitted the Respondents. 30. The appellant submit that it is no requirement that ownership of the land must be proved. Therefore, the fact that there was a dispute on ownership is immaterial. In the case of Director of Public Prosecution v Margaret Shippai [2019] eKLR the court held that “ I find that the dispute in ownership of the land where the destroyed crops were growing was not an ingredient of the ofience. The prosecution need only to prove that the crops planted by the complainant were willfully and unlawfully destroyed by the respondent. Respondent submissions Whether the Appellant proved the essential ingredients of the ofience of Respondents 31. The prosecution witness PW1 stated that the rice belonged to her and Wagatwi, PW2 herein; and that the said rice was destroyed on 18/6/2021. The crops were in a nursery bed. PW1 stated that she and Mary, PW2 witnessed the destruction of crops. 32. PW2 on cross examination said, “I left home. I later came and saw the destroyed field. I did not find them.” This statement only means that PW2 did not see the Accused persons destroy the crops. 33. PW3 stated that he visited the scene of crime on 19/6/2021, he assessed the damage but did not come with the receipts, and on cross examination he stated that the rice was waiting for transportation. 34. PW4 stated that he found Accused 2 and 3 at the scene and he interrogated them, meaning he did not see them destroy the crops. However, he does not disclose if Accused 1 was present. He said that the rice was destroyed by a tractor but does not disclose if the tractor was still at the scene or the driver. PW4 does not disclose if he interrogated the driver of the tractor to find out who instructed him to destroy the alleged crops. 35. PW4 does not disclose if he arrested Accused 2 and 3 at the scene of crime and if the ofience was read to them or their rights; further he does not disclose where he arrested DW1 and when the three accused persons were booked in the police station. 36. The respondents submit that none of the witnesses saw the accused persons destroy the crops, and it is also not clear if the rice really existed and if it was destroyed. It is not clear who amongst the three carried out the act, or instructed a third party to commit a crime. The prosecution failed to prove beyond reasonable doubt that the Accused persons jointly, willingly and unlawfully destroyed the crops as alleged. Issue 37. Whether the appellant proved the essential ingredients of the ofience of destroying crops of cultivated produce contrary to section 334 (a) of the Penal Code. 38. Whether the appellant proved its case beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 5

page 5 of 8

Analysis 39. This being a first appeal, this court is obliged to re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. 40. In Okeno v Republic [1972] EA 32, the Court of Appeal held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while giving allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses. 41. Section 334(a) of the Penal Code creates the ofience of destroying crops. 42. In Republic v Christopher Bwanga [2019] eKLR, the court outlined the essential ingredients of the ofience as: 1. Proof of destruction of a crop of cultivated produce. 2. That the act was willful and unlawful. SUBPARA 3. That the crop belonged to the complainant. 43. Further, in Wambua Kameta & Another v Republic [2016] eKLR, the court emphasized that the words “willfully and unlawfully” denote a deliberate and intentional act done without lawful justification. Whether there was destruction of cultivated crops 44. PW1 testified that the respondents ploughed her rice nursery using a tractor and destroyed it. PW2 initially stated she planted the rice with PW1 but on cross-examination admitted that she left and only later returned to find the field destroyed and did not see the respondents. 45. PW3, the agricultural officer, testified that he found the land ploughed and assessed the damage. However, his testimony was inconsistent as to the dates of the visit and the report, and he admitted he had no referral letter, no price list, and the report did not contain particulars of suspects. 46. The investigating officer, PW4, testified that he found the 2nd and 3rd respondents at the scene but did not witness the destruction. He also admitted the matter involved a family land dispute and that each had an allocated portion.The defence, on the other hand, raised alibi evidence that they were engaged in tea picking on the material day, which was supported by DW4. 47. From the record, there was no direct evidence that the respondents destroyed the crops. The only purported eye witness (PW2) recanted that position and admitted she did not see them. Whether the act was willful and unlawful 48. The prosecution needed to prove that the respondents deliberately and without lawful justification destroyed the crops. 49. However, the evidence of PW4 indicated that: The parties were family members, he land belonged to the deceased husband. lastly, each party had been allocated a portion. This evidence suggested the existence of a land dispute. 50. In Director of Public Prosecutions v Margaret Shippai [2019] eKLR, the court held that ownership of land is not an ingredient of the ofience. However, where evidence suggests a genuine claim of right https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 6

page 6 of 8

or dispute, the prosecution must still prove that the destruction was unlawful and not under a colour of right. 51. Where there exists a bona fide claim of right, the element of unlawfulness may be negated. There was an existing succession dispute among the parties to the suit. 52. The prosecution evidence showed that the land belonged to the deceased husband and was subject to family disputes. PW2 admitted there was a succession dispute and that the 1st respondent was not included. 53. The prosecution did not produce documentary evidence to show that the specific nursery belonged exclusively to the complainant. Whether the trial court erred 54. The trial court acquitted the respondents on the basis that the prosecution failed to prove its case beyond reasonable doubt. 55. An appellate court will only interfere with an acquittal where the trial court misdirected itself on the law or facts. In Kassim Ali v Republic [2006] eKLR, the Court of Appeal held that an appellate court should be slow to interfere with an acquittal unless it is plainly wrong. Determination 56. While it was not necessary to prove ownership of the land as the ofience was not one of provable determiner but one of destruction of crops, where even license or other procession to use the land may be sufficient, there should be clear evidence of the existence of the crops allegedly destroyed by the accused and proof of their ownership by the complainant before the issue of their destruction by the accused arises. 57. In this case, the evidence of existence of crops persuaded by the Agricultural Officer did not show ownership of the crop by the complainant. In the complainant’s evidence, the parcel or portion of land is not identified that the report does not show where the crop was destroyed. 58. There were no eye witnesses to enter the alibi defences of the accused that they were elsewhere on the material date. PW2 said they had planted on the land belonging to their husband at 6.00a.m. – 8.a.m. and after planting went home only to later come and find the field destroyed without finding the people who did it. 59. Agricultural officer PW3 testified that he was sent by police officers to assess damage at the complainant’s land and the land gone and found “one acre ploughed with tractor (Cart) there was a rice nursery that was destroyed”. The report does not identify the land or where the crops were allegedly destroyed so as to give …. of the crops to the complainant who claimed to own the crop. 60. The investigating officer PW4 could not confirm that accused 1 had been at the scene and the only relied on the report by the complainant. As regard to 2nd and 3rd accused whom he said he found out the scene when he went to the scene after the report had been made would appear to support the 1st accused’s defence who said that on the date of deferred ofience 16th June, 2021 she was at their home picking tea. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 7

page 7 of 8

61. There was also material contradiction in the evidence of the investigating officer as regards the date of the ofience and there was contradiction too as to the nature of the crop allegedly destroyed, as shown in his cross-examination: “ Cross - Examination by Miss Hamba Date of ofience 18/06/2021 according to my record it is still 18/06/2021. The copy I supplied you is 16/061202l. I confirm (Investigations diary is altered). I did not find accused I at the scene. She was seen by reportees. Parties are family members. I am not aware of a land dispute and case against victim in 2020 had no documents of purchase of seeds. I did not interview neighbours. I said the rice was waiting transportation. It was seedlings nursery bed they were mature. On 22/06/2023, the photos could not have been clear. They may have dried. You could be right there was no seedlings awaiting transportation.” 62. In addition, there was no evidence of existence of seed. The acquittal was supported by the evidence on record. Orders 63. Accordingly, for the reasons set out above, the Court finds that there is no merit in the appeal from conviction and sentence, and consequently, the appeal is declined. Order accordingly. DATED AND DELIVERED THIS 20TH DAY OF FEBRUARY 2026. EDWARD M. MURIITHI JUDGE Appearances: Mr. Mwangi for the DPP. Ms. Hamba and Ndwiga for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4483/eng@2026-02-20 8

page 8 of 8