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the Accused Person had lit a bonfire within the home. He identified the photos showing damage to his house, latrine, and trees. 5. He accused the Accused Person of having assaulted him on several occasions. 6. In cross-examination, he stated that he was told about the damage to his house and latrine by the Accused Person’s brother, called Davis. He admitted that he did not witness the damage and that Davis was not a prosecution witness in this case. 7. PW2 Everline Maruti Kweyu recalled that on 13th September 2025, she left her residential home at around 1500hrs for Kanduyi when everything was fine. When she went back, she found her residential plot’s latrine damaged. She reportedly questioned the Accused Person, who allegedly admitted having damaged the latrine since it belonged to him. 8. In cross-examination, she admitted that she did witness the Accused Person damaging the latrine. She stated that the Accused Person’s sisters were the ones who told her that the Accused Person had damaged the latrine. 9. PW3 No. 122890 PC Morphine Chesebe of Bungoma Police Station investigated this case. 10. He testified that on 21st September 2025 while on duty at the police station, he received PW1 and the Accused Person. PW1 reported that the Accused Person had damaged PW1’s house and latrine and thereafter cut his trees for charcoal burning. He visited the scene and confirmed the damage. 11. He took scene photos showing the damage to PW1’s latrine, house, and trees. He produced the photos as exhibits (Pexh. 1 (a) – (c)). He also produced the certificate of print dated 27 th October 2025 (Pexh. 2).

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12. In cross-examination, he also admitted that he did not see the Accused Person damaging PW1’s house and latrine since he visited the scene after the damage. Accused Person’s Case 13. The court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused elected to give sworn testimony. 14. The Accused Person testified that he burns and sells charcoal. He further stated that on 13th September 2025, he bought three stumps worth Kshs. 3,000/= and fell one tree from their home to burn charcoal. He burned the charcoal only to be arrested on 21st September 2025 at around 1500hrs while preparing the charcoal for lack of a charcoal burning permit. 15. He denied committing the offence herein. ANALYSIS AND DETERMINATION 16. This court has carefully considered the evidence on record. The issue that commends to this court for determination is whether the prosecution proved beyond reasonable doubt that the Accused Person maliciously damaged part of the complainant’s house and part of the complainant’s pit latrine as set out in the particulars of the charge herein. 17. Section 339 (1) of the Penal Code sets out the offence of malicious damage to property as follows; “Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years.” 18. In Joseck Muthuri Mwarania v Republic [2020] eKLR, it was stated that under the above definition, the elements of the offence may be dissected as;

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(i) Proof of ownership of the property. (ii) Proof that the property was destroyed or damaged. (iii) Proof that the destruction or damage was occasioned by the accused. (iv) Proof that the destruction was wilful and unlawful. 19. The elements of this offence were also stated in the case of Simon Kiama Ndiagui vs. Republic (2017) eKLR, as follows“In order to convict the court must be satisfied that, first, some property was destroyed; second, that a person destroyed the property; third that the destruction was willful and therefore there must be proof of intent; and fourth, the court must also be satisfied that the destruction was unlawful. 20. This court proceeds to determine whether the prosecution proved the above ingredients of the offence herein beyond reasonable doubt. 21. The oral testimony by PW1 and PW2, as well as the scene photos, proved beyond reasonable doubt that the latrine and the house in question belonged to PW1 and that the same was damaged on the date of the incident. 22. Turning to the question of whether the damage to the latrine was occasioned by the Accused Person, all the prosecution witnesses were emphatic that they did not witness the Accused Person damaging the complainant’s house and latrine. 23. PW1 stated that he was informed about the damage by the Accused Person’s brother, called Davis, who reportedly witnessed the damage. PW2’s testimony about the damage was that the Accused Person’s sisters were the ones who told her that they had seen the Accused Person damaging the latrine.

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24. PW2 also testified that the Accused Person reportedly admitted to her that he had damaged the latrine since it belonged to him. One may be tempted to argue that the alleged admission is sufficient to identify the Accused Person as the perpetrator of the offence herein. 25. Onyiego, J had this to say in Republic v Noor (Criminal Case E011 of 2023) [2025] KEHC 4654 (KLR) about the import of an Accused Person’s admission: “The general rule on admissions applies that any statement allegedly made by the accused person to a party, in this case, the accused person’s sister tending towards an admission is not proof that the statement was correct or proof that the accused committed an offence. Such statement will be tested against the rest of the evidence adduced before the court. The prosecution will still have to prove the charge against the accused person on the required standard of law.” 26. A reading of the authority above reveals that an admission by an Accused Person to any person about the commission of an offence cannot be the sole basis of convicting an Accused Person before weighing such an admission against the evidence on record. 27. The Accused Person in this case denied committing the offence herein. That denial effectively also cast doubt on the alleged admission he made before PW2, thereby placing upon the prosecution the burden of identifying him as the perpetrator of the offence herein. 28. Given the barely adequate evidence on record to identify the Accused Person as the perpetrator of the offence herein, this court is of the considered view that this was the proper case for the prosecution to call Davis and the Accused Person’s sisters who informed PW1 and PW2 about the damage, to give evidence on the identity of the perpetrator of the offence herein. 29. The law in this jurisdiction is that where the evidence by the prosecution is barely adequate, and the prosecution fails to call some key

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witnesses, the court is inclined to draw an inference that had the witnesses who were not called by the prosecution called, their evidence would have been adverse to the prosecution’s case. To this end, this court draws inspiration from Bukenya & Others v Uganda {1972} E.A. 549 where the East African Court of Appeal held that: i. The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent. ii. The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case. iii. Where the evidence called is barely adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution. 30. Going by the reasons above, and guided by the authority above, this court finds that the failure by the prosecution to call Davis and the Accused Person’s sisters as witnesses to shed more light on the identity of the perpetrator of the offence herein was fatal to the prosecution’s case. 31. It is against this backdrop that this court finds and holds that the prosecution failed to identify the Accused Person as the perpetrator of the offence herein beyond reasonable doubt. 32. The finding in paragraph 31 above renders the question of whether the damage to the complainant’s house and latrine was willful and unlawful moot. DETERMINATION 33. The upshot of the foregoing is that:a) The Accused Person is acquitted under section 215 of the Criminal Procedure Code for the offence of malicious damage to property contrary to section 339(1) of the Penal Code b) The Accused Person is set at liberty unless otherwise lawfully held 34. Orders accordingly.

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Judgment read, signed, and delivered in open Court at Bungoma this 16 th day of February 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Achieng for the state Complainant Accused Person C/A: Mr. Rioba

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