Republic v Rashid Bute Bonaya

cross-examined confirmed that the accused person herein informed him that he was not in Hola when he initially tried to contact him. 4. The accused person in his evidence in defense, DW1, informed the court that he was away in Malindi on the alleged dates of the commission of the ofience herein. He stated that he went to Malindi on 20.06.2020 to look for employment. That on 14.07.2020, he was involved in accident which caused him to be taken to the hospital as result of the injuries. That at the hospital, he was instead diagnosed with high blood pressure attending treat for which he attended treatment as an outpatient till 18.07.2020. That thereafter, upon being advised to rest, he stayed in Malindi till 26.07.2020 when he went back home – Hola. He however still continued with his rest till when he was arrested by police oficers. He denied committing the ofience and informed the police that he was away, but that the police refused to understand him. He produced his treatment notes as PEXH. Nos 1A and 1B. He denied committing the destructions saying that it would not be of any help to him if he destroys the complainant’s properties as alleged. 5. DW2, Salim Abaye Ghefo, informed the court that he was in Malindi Hospital on 14.07.2020, when the accused person herein was brought while unconscious. That the accused person was however not admitted, he continued to be seen there as an outpatient. That on 18.07.2020, he came back to Hola, leaving the accused person while still in Malindi. 6. The question of concern is whether the prosecution has discharged the burden of proof of beyond reasonable doubt against the accused person and in so doing, the court has to consider the ingredients of the ofience vis a vis the evidence. The court must satisfy itself the chain of events and statements thereto must be such as to rule out a reasonable likelihood of the innocence of the accused. The court has to judge the total cumulative efiect of all facts before it which reinforce the conclusion of the guilt of the accused person and should the combined efiect of evidence adduced be conclusive in establishing the guilt of the accused then a conviction would be justified. It was held in Republic Vrs Silas Magongo Onzere alias Fredrick Namema [2017] eKLR that: “ The burden of proof: It is the law in Kenya as entrenched in the constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: “whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.” As to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as fiows in a passage alluded to me considered the greatest jurist of our time Lord Denning: “ That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to defiect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favor which can be dismissed with the sentence of course it is doubt but nothing short of that will sufice.” In our criminal justice system there is no duty on the accused to prove anything on the allegations of a criminal nature filed by the state in a court of law. That burden of proof of an accused guilt rests solely on the prosecution throughout https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/16/eng@2021-05-04 2

page 2 of 4

the trial save where there are admissions by the accused person. So likewise, at the close of the prosecution case under section 307 (1) of the Criminal Procedure Code the prosecution must satisfy by way of the evidence presented so far that a prima facie case exists to warrant the accused person to be called upon to answer.” 7. The charge herein however states that the accused herein committed the destruction as charged herein. The accused person in his defense, has however raised an alibi defense. It is trite that an alibi defense is a defense based on information that a defendant was not at the scene of the crime when the crime occurred, that he was somewhere else and could not be the person who committed the crime. The alibi defense raised by the accused herein had witnesses testify and present evidence at trial to support it. The credibility of the witnesses and evidence herein will either strengthen or weaken the defense. The fact that a defendant presents an alibi defense does not however change the requirement that the prosecutor proves guilt beyond a reasonable doubt. The defense also does not have to prove the alibi beyond a reasonable doubt. 8. In addition to proving that the defendant was at the scene of the crime, the evidence in the case must prove all other elements of the crime beyond a reasonable doubt – that the defendant actually committed a criminal act. I have looked at the evidence adduced herein as a whole i.e. from the complainant to DW2’s evidence. I find some gaps in the purported identification of the accused person at the scene which when considered alongside the alibi evidence herein, strengthens the alibi defense raised herein. Firstly, the evidence of the identifying or recognizing witnesses herein, that is, the complainant, PW1 and his son, PW2, appears too shallow, that it cannot be said with the requisite degree of certainty that it displaces the alibi defense raised herein. PW2, in his unsworn statement stated that the accused person herein committed destructions on the complainant’s parcel twice. That PW1 was also present when he was committing the destructions. PW1, did not however directly confirm whether he saw the accused person while in the act. In his evidence in chief he simply stated that on 21.07.2020, at around 5.00pm, he was working at a neighbor’s place when PW2 came to call him that the accused person was committing the destructions alleged herein. He stated that upon receiving the report, he went to the police station to report. There is nowhere he stated that he went to the scene. What he later confirmed is that he saw the destructions. He then stated in cross-examination that he took the photograph of the accused person at the scene. There is however no photograph of the accused person presented herein. Moreover, the photographic exhibits that were produced herein, POEXH. Nos 3A, B and C, were not shown to the eye-witnesses, neither do they have a picture of a human being. They cannot therefore be said to be depicting destructions that occurred in the complainant’s farm as the complainants themselves have not confirmed what they are. 9. Failure to present the photographs to the complainants for identification leads to only one presumption, that they were likely to be adverse to their evidence, hence making them not relevant to prove the destruction or damage alleged herein. I thus do hereby find that the prosecution has been unable to prove the essential ingredient of the charge herein, i.e., that the destruction happened in a manner as depicted in PEXH. Nos 3A, B and C. And secondly, that the accused person herein was present at a scene of the alleged destructions herein. His alibi defense, though not adduced at the earliest opportunity as required, has therefore become relevant herein. 10. Furthermore, the accused appeared not interested in any land dispute with the complainants herein. When the complainant was adducing the evidence of ownership of the plot where the destructions herein were allegedly committed, the accused person did not ofier any objection to the documents. He readily conceded and even remarked that those are their documents, for which he has no issue. He also stated in his defense that he has no issue with the complainants and as such he cannot commit any destructions on their properties as alleged herein. Well, I do hereby find the evidence for the https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/16/eng@2021-05-04 3

page 3 of 4

prosecution wanting herein and do hereby find that the prosecution has been unable to prove its case against the accused person to the required standard of beyond reasonable doubt. I consequently do herein acquit the accused person of the ofience of Malicious Destruction to Property c/s 339(1) of the Penal Code as charged herein. The Kshs. 5,000/= cash bail deposited on his behalf be refunded back to the depositor. DATED, SIGNED AND DELIVERED AT HOLA THIS 04TH DAY OF MAY, 2021 ALOYCE -PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Osman Prosecution counsel: Atika Accused person: Present Victim: Absent https://new.kenyalaw.org/akn/ke/judgment/kemc/2021/16/eng@2021-05-04 4

page 4 of 4