Republic v Isale & another (Criminal Case E712 of 2025) [2026] KEMC 688 (KLR)

4. In the circumstances, on 08th December 2025, the prosecution made an application to proceed with the case in the absence of the 1 st Accused Person since the 1st Accused Person had made her attendance untenable. 5. This court allowed the prosecution’s application to proceed with the case in the absence of the 1st Accused Person since Article 50(2)(f) of the Constitution permits a criminal matter to proceed in the absence of an Accused Person where an Accused Person willfully makes their attendance untenable, regardless of the gravity of the offence facing such an Accused Person. 6. In deciding to proceed with this case in the absence of the 1 st Accused Person, this court’s decision was in line with the holding in Republic v Galma Abagaro Shano [2017] eKLR where the learned Judge held that; “This court has in a detailed manner determined and ruled that this trial would proceed in the absence of the accused who has waived his right to a fair trial in regard to being present during the trial by absconding and removing himself from the jurisdiction of this court…This court took the view that Section 206 (1) of the Criminal Procedure Code is inconsistent with Article 50 (2) (f) of the Constitution in so far as it allows the court to proceed with the hearing of a case against an accused person who fails to turn up in court in cases where the accused is charged with a misdemeanor and not a felony…It was my view that where an accused person, irrespective of the charge he/she is facing, absconds, then he has waived his/her right to be present when being tried and the court therefore can proceed to hear and conclude the trial in his/her absence and even convict and sentence him…”

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7. The reasoning in the Galma Abagaro Shano case (supra) was also followed in Republic v Teteror (Criminal Case 2 of 2017) [2023] KEHC 18592 (KLR) (15 June 2023) (Ruling) and Bett v Republic (Criminal Revision E605 of 2023) [2024] KEHC 3560 (KLR) (Crim) (11 April 2024) (Ruling). 8. The evidence led by the prosecution before this court is summarized below. EVIDENCE Prosecution’s Case 9. 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. 10. 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. 11. 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. 12. 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. 13. 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.

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14. In cross-examination, he stated that the trees he fell were near the common boundary between the complainant and the Accused Person. 15. He added that he cut the trees since they were near the Accused Person’s house. 16. 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. 17. 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. 18. In cross-examination, she conceded that the trees damaged were along the common boundary between the complainant and the Accused Person. 19. 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. 20. 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. 21. He stated that the fallen trees were on PW1’s side of the land. 22. 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. 23. He further stated that there was no need to produce a map to show the boundary between PW1 and the Accused Person.

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24. 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 25. PW5 Godfrey Simiyu Okumu is the retired assistant chief of East Sang’alo Sub-Location. 26. 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. 27. 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 28. 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 29. 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. 30. 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.”

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31. 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 however must be such that it is sufficient for the trial court to place the accused to his defence.” 32. 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. 33. 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

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(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. 34. 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. 35. 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 instructions. Therefore, the question of whether the Accused Person cut the trees or not was settled by the prosecution. 36. 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. 37. 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. 38. 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. 39. PW3 on her part admitted that the trees which were cut were along the common land boundary between the complainant and the

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Accused Person.the trees are on their common boundary…they are neighbours… 40. 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. Identification of the perpetrator 41. Section 20 of the Penal Code – Principal Offenders 42. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and 43. to be guilty of the offence, and may be charged with actually committing it, that is to say— 44. (a) every person who actually does the act or makes the omission which constitutes the offence; 45. (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; 46. (c) every person who aids or abets another person in committing the offence; 47. (d) any person who counsels or procures any other person to commit the offence, 48. and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its 49. commission. 50. (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a 51. conviction of committing the offence. 52. (3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made

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53. the omission, the act or omission would have constituted an offence on his part is guilty of an offence of the same kind, and is 54. liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the 55. act or making the omission. 56. 28. See also Republic v Mohammed Wanyoike & another [2017] eKLR on common intention and principal offenders; 57. “The accused have raised the issue of common intention and that the deceased was assaulted by a mob. The 1st accused 58. contends that if it is found that he was at the scene, then his presence was only passive and did not participate in the assault 59. of the deceased. The mere fact that it was alleged by PW4 that the 1st accused was at the scene while holding a whip cannot 60. be sufficient evidence to find him guilty of the offence. 61. Section 20 of the Penal Code provides for parties to an offence as well as principle offenders. A principle offender includes 62. the one who commits the offence, the one who aides or abets another person to commit the offence and the one who procures 63. the other person who commit the offence. Section 21 of the Penal Code provides as follows:64. “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” 65. Common intention does not need to be foreplanned. It can be inferred from the acts of the perpetrators of the offence. In the 66. that: case of NJOGU V REPULIC [2007] 2 KLR, 123, it was held inter alia

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67. “Under section 21 of the Penal Code (Cap 63), when two or more persons form a common intention to prosecute an unlawful 68. purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature 69. that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have 70. committed the offence.” 71. Identification of the Perpetrator 6. I reminded myself of the Court of Appeal decision on identification in the case of: JOSEPH NGUMBAU NZALO VS. REPUBLIC (1991) 2KAR Pg 212 in which the court stated that: “A careful direction regarding the conditions prevailing at the time of identification and the length of time for which the witness had the accused person under observation, together with the need to exclude the possibility of error was essential.” I have also considered the case of Okello v Republic Cr. App No. 8 of 1986, and that of Maitanyi v Republic Cr. App No. 6 of 1986 KLR, In the Maitanyi case it was held that: “1. Although it is trite law that a fact may be proved by the testimony of a single witness, this does not lessen the need for a testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. 2. When testing the evidence of a single witness a careful inquiry ought to be made into the nature of the light available conditions and whether the witness was able to make a true impression and description.

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3. The court must warn itself of the danger of relying on the evidence of a single identifying witness. It is not enough for the court to warn itself after making the decision, it must do so when the evidence is being considered and before the decision is made. 4. Failure to undertake an inquiry of careful testing is an error of law and such evidence cannot safely support a conviction. 7. The case before me turns on the evidence of a single identifying witness and the appellant raised an alibi defence testifying that on the material date he was away in Mlolongo visiting his sister. An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable (see Court of Appeal’s decision in Kiarie v Republic [1984] KLR pg 740). 8. The offence in question took place at night. The evidence however shows that the minor knew the appellant as a neighbour for a long time and in her own testimony they used to greet each other whenever they met. The appellant came upon the minor at 8 p.m. on the ill-fated night, as she waited for her friend Lydia. She had no apprehension since he was known to her. She identified him by name in her testimony and stated that she conversed normally with him as he offered to take her to where her friend Lydia was. 9. She followed him from the road side but suddenly he took hold of her hand and pulled her into a deserted house. He covered her mouth with a handkerchief so that she could not scream and defiled her. There is no evidence that her eyes were also covered. She could therefore see her assailant throughout the time they were together. They remained together for two hours before he released her. She returned to the

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road where a police officer on patrol rescued her and took her to the police station and called her father. 10. The learned trial magistrate does not appear to have placed reliance on the evidence of the attempted reconciliation to convict the appellant, as averred by Mr. Nyangito for the appellant. The magistrate however, did consider the appellant’s alibi defence in his reasoning thus: “Though it was only PW1’s evidence which is incriminating the accused person to me this evidence is unchallenged. ............ I have too considered the accused person’s alibi defence, which to me remains to be a mere statement which is uncorroborated or unsubstantiated. No doubt I am convinced the accused whom the complainant knew very well before this incident, thus the offence of defilement. P3 form put the complainant at 13 years old. Though this is a single witness testimony, only PW1 I find it convincing and believable besides all prosecution witnesses were credible and honest.” It is therefore clear that the learned trial magistrate considered the evidence of both the prosecution and the defence and chose that of the prosecution over the defence for stated reasons. DETERMINATION 72. For the reasons above, the Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of cutting down of trees contrary to section 334 (c) of the Penal Code. 73. It is so ordered. Ruling read, signed and delivered in open Court at Bungoma this 29th day of April 2026

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T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Accused Person Mr. Maroro for ODPP C/A: Mr. Rioba

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