REPUBLIC OF KENYA IN THE PRINCIPAL MAGISTRATE’S COURT AT WAMUNYU CRIMINAL CASE NO. E224 OF 2022 DIRECTOR OF PUBLIC PROSECUTIONS ……………….………...….…….…… REPUBLIC -VERSUSDANIEL MUTISYA ……………………………..………….…….……..……..……. ACCUSED JUDGEMENT A. CASE SUMMARY: 1. P. C. BENARD MBURU (PW 1) a police officer attached at Mwala Police Station testified that the accused was brought by members of the public and officers from Mbiuni Police Station on allegation that he had committed the offence of grievous harm. He was allegedly rowdy and swearing loudly and was quickly placed inside the cells. He started banging the cell door and in the process a section of the brick wall got damaged. 2. PW 1 informed his OCS C.I. REGINA NDERU and the accused was booked in the OB for the offence of malicious damage. He began investigations by visiting the cells and established that the cell door could not be locked as it had become disfigured. He photographed the scene of crime and produced the 3 photographs as evidence in court. The damaged was valued at Kshs. 50,000/-. 3. In his defence, the accused stated that officers from Masii police station went to their home after being called by a KDF brother who heard that there was a fracas in the home. The accused and his family Page 1 of 4 MCCR E224/22
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members were placed in a cell and were to be charged with fighting in public (sic affray). The accused was categorical that in the cells were other suspects. The next day an officer called Kioko asked his family members to reconcile with a Mr. Wambua who had been mobbed by a group of people. The accused proposed to pay Kshs. 30,000/- as compensation. An officer called Kioko asked for an additional Kshs. 10,000/- and the accused refused. The following Monday he was shocked to learn that he had been charged in two separate files for malicious damage and the other one for grievous harm. B. ANALYSIS 4. The onus of proving criminal cases always rests with the prosecution and does not shift to the accused at any one given time. 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.” 5. 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 by Lord Denning provides as follows: “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 deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.” 6. This court finds that the charge was not proven by the prosecution for the following reasons: Page 2 of 4 MCCR E224/22
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a) There was only one prosecution witness who testified that the accused damaged the door. Incidentally, he never witnessed the accused damage the door; b) The accused stated that there were other remandees in the cell. The prosecution did not provide any evidence in terms of a register or roll call to show that the accused was the only remandee on 26.08.22; c) The prosecution produced three uncertified pictures as exhibits in this case. The same were not stamped and there was no certificate confirming what gadget was used and where the scene was; d) In any event, the said pictures did not show a door that could not lock due to being disfigured. They actually depicted debris on the floor from some small patches near the door frame. How can this court tell that was from damage and not natural attrition as no report was shown to the court when the damage occurred and by whom it was caused? The fact that no disfigured door was shown goes against the prosecution witness’s testimony; e) How was the damage assessed at Kshs. 50,000/-? Which expert was used? Where is the report of the damage? None was provided; f) There was in any event no proof that if indeed the accused committed the crime, he did it maliciously. 7. Consequently, there is no evidence on record proving that the accused damaged any property belonging to Mwala Police Station. CONCLUSION: Accordingly, and by dint of section 215 of the Criminal Procedure Code, Cap 75 of the laws of Kenya the accused is hereby acquitted of the offence of malicious damage contrary to section 339(1) of the Penal Code Cap 63 of the Laws of Kenya. Dated this 11 th day of SEPTEMEBR, Law Courts. Page 3 of 4 MCCR E224/22 2025 at Wamunyu
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HON. P. E. NABWANA SENIOR RESIDENT MAGISTRATE IN THE PRESENCE OF: For DPP: Mati Accused: Present Court Assistant: Kamoni N. Page 4 of 4 MCCR E224/22
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