Republic v Makhati (Criminal Case E321 of 2025) [2026] KEMC 657 (KLR)

4. PW1 Benson Simiyu Makhanu testified that on 12th March 2025 at around 1600hrs, he received a call from his child Bettness Nasambu Simiyu who told her that the Accused Person was felling his gravellia trees. 5. He went to his home where he found the Accused Person and a power saw operator, one Moses Nato (PW2), having felled his eight gravellia trees. He informed the area village elder and the assistant chief about the incident. 6. He added that police officers visited the scene and took photos of the damage and that a Forestry officer (PW3) assessed the damage at Kshs. 19,549/=. His further testimony was that he was the one who planted the fallen trees after buying land from the Accused Person’s brother, one Kennedy Makhati, in 2014. 7. In cross-examination, he conceded that he did not own the whole parcel of land known as East Bukusu/West Sang’alo/274 from which the parcel of land he bought from Kennedy Makhati was hived from. 8. PW2 Moses Nato Wepukhulu, who is a power saw operator, recalled that on 12th March 2025, at around 1300hrs, the Accused Person called him to his home and directed him to fell seven gravellia trees and one mzambarau tree. He confirmed felling the eight trees. 9. In cross-examination, he stated that the trees he fell were near the common boundary between the complainant and the Accused Person. 10. He added that he cut the trees since they were near the Accused Person’s house. 11. PW3 Damaris Nasila Wamalwa is the Forester Bungoma South Sub-County. Her testimony was that on 13 th March 2025, she received a letter from the Assistant Chief East Sang’alo Sub-location, requesting her to assess the damage to PW1’s trees in Mechimeru area.

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12. She proceeded to the scene and assessed the damage at Kshs. 19,549.30/= and thereafter prepared a report dated 13 th March 2025 (Pexh.3) to that effect. 13. In cross-examination, she conceded that the trees damaged were along the common boundary between the complainant and the Accused Person. 14. PW4 No. 73460 PC Josephat Kirui of Mechimeru Police Post investigated this case. He booked PW1’s report about the damage at Mechimeru Police Post on 12th March 2025. 15. He visited the scene and confirmed the felling of trees. He took the scene photos (Pexh. 1 (a) – (b)) which he forwarded to the Scenes of Crime personnel for processing. He produced the scene photos’ certificate of print dated 27th August 2025 as an exhibit (Pexh.6). He also produced the sale of land agreements (Pexh. 4 & 5) between PW1 and the Accused Person’s brother. 16. He stated that the fallen trees were on PW1’s side of the land. 17. In cross-examination, he stated that the fallen trees were near the boundary. He added that he relied on a live fence at the scene to determine that the fallen trees belonged to PW1. 18. He further stated that there was no need to produce a map to show the boundary between PW1 and the Accused Person. 19. He concluded his testimony by stating that he did not interview the Accused Person’s brother, one Kennedy Makhati, during the course of his investigations 20. PW5 Godfrey Simiyu Okumu is the retired assistant chief of East Sang’alo Sub-Location. 21. He recalled that on 13th March 2025, while still serving as an assistant chief, he received a report from PW1 that the Accused Person had cut his eight trees using a power saw machine. He referred PW1 to the police and Kenya Forest Service. He also instructed the area village elder to visit the scene.

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22. He added during cross-examination that he did not confirm if the fallen trees belonged to PW1, and that he could not tell who planted the fallen trees. Prosecution’s and Defence’s Written Submissions 23. After the close of the prosecution's case, both the prosecution and the Accused Person chose to rely on the evidence on record. ANALYSIS AND DETERMINATION 24. This court has given due regard to the evidence on record. It is this court’s duty at this stage to answer the question of whether the prosecution has established a prima-facie case against the Accused Person. 25. The term prima facie is defined by the Black’s Law Dictionary, 18th edition, as: ” A case sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it makes later be proved to be untrue.” 26. In Ronald Nyaga Kiura vs. Republic [2018] eKLR, the court defined a prima facie case as follows: “…A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court to return a guilty verdict if no other explanation in rebuttal is offered by an accused person. This is well illustrated in the cited Court of Appeal case of RAMANLAL BHAT -VS- REPUBLIC [1957] EA 332. At that stage of the proceedings the trial court does not concern itself to the standard of proof required to convict which is normally beyond reasonable doubt. The weight of the evidence

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however must be such that it is sufficient for the trial court to place the accused to his defence.” 27. Guided by the authorities above, the question that rings in the mind of this court is whether the evidence on record is sufficient for this court to return a guilty verdict if no other explanation in rebuttal is given by the Accused Person. 28. Section 334 of the Penal Code sets out the offence facing the Accused Person in the following terms: 334. Any person who willfully and unlawfully sets fire to, cuts down, destroys or seriously or permanently injures (a) a crop of cultivated produce, whether standing, picked or cut; or (b) a crop of hay or grass under cultivation, whether the natural or indigenous product of the soil or not, and whether standing or cut; or (c) any standing trees, saplings or shrubs, whether indigenous or not, under cultivation, is guilty of a felony and is liable to imprisonment for fourteen years. 29. The provisions of the law reproduced above show that the ingredients of the offence herein are: the cutting of the trees must be willful and unlawful, the trees cut must have belonged to the complainant, and the Accused Person must have been the one who cut the complainant’s trees. 30. In the instant case, the evidence led by PW1 – PW4 leaves no doubt in the mind of this court that trees were cut on the date of the incident by PW2 under the Accused Person’s supervision and

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instructions. Therefore, the question of whether the Accused Person cut the trees or not was settled by the prosecution. 31. The above is not sufficient for this court to place the Accused Person on his defence. The prosecution has to establish a prima-facie case of the complainant’s (PW1) ownership of the cut trees. 32. In that regard, PW1 reiterated that the trees cut by the Accused Person belonged to him, given that he had planted them and that they were on his portion of land, which he had bought from the Accused Person’s brother, one Kennedy Makhati. He added that his portion of land had been hived from land parcel number East Bukusu/West Sang’alo/274, and that he shared a common land boundary with the Accused Person. 33. PW2, on the other hand, conceded in cross-examination that the trees he fell on the date of the incident were near the common boundary between the complainant and the Accused Person. He added that he cut that day were near the Accused Person’s house. 34. PW3 on her part admitted that the trees which were cut were along the common land boundary between the complainant and the Accused Person.the trees are on their common boundary…they are neighbours… 35. PW4 who investigated this case stated that he relied on the sale of land agreements availed to him by the complainant, and the live fence at the scene of crime to conclude that the trees cut by the Accused Person were in the complainant’s portion of land. He conceded that he did not interview Kennedy Makhati, who sold land to the complainant, about ownership of the portion of land where the Accused Person cut the trees. 36. This court gathers from the prosecution’s evidence on the ownership of the trees cut by the Accused Person that it is the prosecution’s case that the trees cut by the Accused Person belonged to the complainant, given that the same were cut in the complainant’s

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portion of land. This position is fortified by the cujus maxim, which Visram, JA (as he then was) defined in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) thus: 30. Article 260 aforesaid echoes the traditional definition of land under the common law doctrine known as Cujus est solum, eius est usque ad coelum et ad inferos (cujus doctrine)which translates to “whoever owns [the] soil, [it] is theirs all the way [up] to Heaven and [down] to Hell”. As with our Constitution, the doctrine defines land as the surface thereof, everything above it and below it as well…” 37. This begs the question of whether the evidence led by the prosecution established a prima facie case of the complainant’s ownership of the portion of land where the Accused cut the trees, thereby establishing a prima facie case of the complainant's ownership of the cut trees. 38. It is common ground that the complainant bought land from the Accused Person’s brother called Kennedy Makhati, which land was hived from land parcel number East Bukusu/West Sang’alo/274. The Accused Person also stays on the said parcel of land. Further, the complainant and the Accused Person share a common boundary. 39. It is evident that the investigating officer and the forester heavily relied on the complainant’s evidence on reaching a finding that the trees cut by the Accused Person were on the complainant’s parcel of land. 40. Given the circumstances of this case, and more particularly the fact that the trees cut by the Accused Person were along the common land boundary between the Accused Person and the complainant, this court takes the view that the prosecution ought to have produced the

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land in question’s survey plan or called Kennedy Makhati who sold land to the complainant to shed light on who actually owned the parcel of land where the Accused Person cut the trees. 41. In the absence of the said evidence, the evidence on record is barely adequate to establish a prima facie case that the Accused Person cut trees on the complainant’s parcel of land, thereby failing to establish a prima facie case that the trees cut by the Accused Person belonged to the complainant. 42. The Court of Appeal [S.E.O. Bosire, P.N. Waki And J.W. Onyango Otieno JJ.A] in Donald Majiwa Achilwa & 2 others v Republic [2009] KECA 163 (KLR) stated as follows on the failure by the prosecution to call a key witness where the evidence on record is barely adequate: The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). 43. Therefore, guided by the authority above, it follows that the failure by the prosecution to call Kennedy Makhati as a witness or produce the land in question’s survey plan can only inevitably incline this court to draw an adverse inference that had that evidence been

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placed before this court, the same would have been fatal to the prosecution’s case. 44. It is against this backdrop that this court finds and holds that the evidence on record is barely adequate for the Accused Person to be placed on his defence to give evidence in rebuttal. 45. In the words of Sharma J in Public Prosecutor v Saimin & Ors [1971] 2 MLJ 16, placing the Accused Person on his defence, based on the prosecution’s evidence on record, will be for the sake of the joy of asking for an explanation or the gratification of knowing what the accused has to say about the prosecution evidence. 46. The long and short of it all is that even if this court places the Accused Person on his defence, and the Accused Person elects to remain silent, the Accused Person will ultimately walk away a free man. DETERMINATION 47. For the reasons above, the Accused Person is acquitted under section 210 of the Penal Code for the offence of cutting down of trees contrary to section 334 (c) of the Penal Code. 48. It is so ordered. Ruling read, signed and delivered in open Court at Bungoma this 18th day of February 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Mr. Maroro for ODPP C/A: Mr. Rioba

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