Republic v Nangila

7. As a result, he left and made a report to the authorities on the advice of the Complainant upon informing him of the same. This was conrmed by PW2 who was working in their shamba nearby who said that he was digging near the boundary of her land and saw the complainant cutting banana stems belonging to said Complainant. He added that he overheard the accused making noise claiming that the land was hers and not of the Complainant and his caretaker PW2. 8. Upon the mater being reported to the authorities, PW3,an agricultural ocer was sent to the shamba to assess the damaged banana stems. He did so on 18/9/2023 and led a report. The same is dated 18/9/2023. It puts the value of the damaged crops at Kshs123,200/=. It was calculated based on the number of the banana stems that were cut against the life cycle of 10 years per each banana sucker planted. According to his report, a total, ve bananas which had been recently planted were damaged. 9. The matter was investigated by PW5 after which accused was arrested and charged. The Defence Case 10. Accused testied in her defence case and called Metrine Khisa Nanjala (DW2) and Abneza Weksa Barasa(DW3) as her witnesses. She stated that on the material day, she left home to hawk milk at about 6.00 am and stayed out until 3.00 pm when she returned home after work. Upon returning home at that time, PW2 came accompanied with the village elder and ‘nyumba kumi’ and demanded that sisal plants be planted on the disputed boundary but she declined. After that, police came to the scene four days later and arrested her. 11. On reaching the station, they showed her one (1) banana stem apparently without explaining anything to her about the same. She added that she had no boundary dispute with the Complainant. 12. On cross examination, she admitted that she sold land to the Complainant but added that no boundary exists between it and her own land which is adjoining it. She disputed the acreage she sold saying that, what she sold was only a 50X100 plot yet, the complainant took possession of more land measuring ½ an acre instead. Her alibi evidence was corroborated by DW2 and DW3. Issues For Determination 13. These are: i. Whether the Complainant’s banana stems were damaged on the material day as alleged? ii. Whether the accused was the perpetrator. iii. Whether accused is guilty as charged. Analysis & Determination 14. The accused person was charged under section 334 (c) of the Penal Code. This section provides that; “ Any person who wilfully and unlawfully sets re to cuts down, destroys or seriously or permanently injures(a) a crop of cultivated produce whether standing, picked or cut; b) ………………………. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/850/eng@2026-08-26 2

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c) ………………………. is guilty of a felony and is liable to imprisonment for fourteen years.” 15. 19. Thus, the ingredients to look for are; (i) Proof of damage of a crop of cultivated produce. (ii) whether the act was wilful and unlawful. (iii) whether the crop belonged to the complainant- see Republic v Christopher Bwanga [2019] KEHC 5081 (KLR) and Republic v Otaigo & 3 others (Criminal Case E374 of 2025) [2026] KEMC 365 (KLR) (30 July 2026) (Judgment). For the damage to be willful and unlawful, it has to be wanton and contrary to the wishes of the owner. a. The issue of damage to the bananas 20. The prosecution adduced evidence on the damage. This was directly through PW2 and PW3 as eye witnesses. They also had a report which was produced by PW4, an Agricultural ocer who work with the County Government of Bungoma. 21. That evidence was not challenged by accused. According to the PW4’s report, ve banana plants which had recently been planted were damaged. She visited the shamba and assessed the damaged bananas. She then reached a conclusion that the bananas were valued at Kshs123,200/=. This was based on life of a banana plant of ten years. 22. But because the banana had just been planted, I think that giving their value on the basis of a lifespan of ten years of each banana plant was an exaggeration. In my considered view, the value should have been assessed based on the cost of buying each sucker, cost of planting each and maintenance costs from the period the bananas were planted to the time of the damage. 23. Nevertheless, there is sucient evidence that, 5 banana plants were damaged during the incident. But from the photographs produced, other bananas that were also growing on that shamba remained intact without any interference. 24. Based on the evidence of both PW2 and PW3, my conclusion is that, the prosecution established that indeed 5 banana plant stems belonging to the complainant were damaged during the incident. No claim was laid on those bananas by accused person and so, there is no doubt about the complainant’s ownership of the same. Although she has a dispute with the complainant over the land, it was clear that the latter owned the same and even had a title over it. She had no right to destroy the bananas over that dispute. 25. b. The issue of accused being the perpetrator 26. The prosecution’s evidence was that accused was seen doing the damage to the banana stems by both PW2 and PW3. 27. That fact came out clearly from the evidence of both these two witnesses. According to them, she used a jembe to cut and uproot them. Both stated that the said act occurred at 11.00 am. However, accused raised a defence of alibi and called two witnesses to attest to the same. That defence has been weighed carefully against the prosecution evidence summarized above. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/850/eng@2026-08-26 3

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28. The court nds that both PW2 and PW3 having been at the scene of the incident, clearly saw what transpired and who was involved in doing the damage. They emphatically mentioned accused person in connection with the same. Both were her neighbours. They saw her in close proximity and so, it was not a case of mistaken identity. Furthermore, there was an apparent confrontation between her and PW2 when he demanded that she stops what she was doing. PW2 indicated that, when he tried to intervene, she become hostile and chased him away. That shows that they had a close encounter with her. that means that there was sucient corroboration regarding not just her presence at the scene but also, that she was the one who damaged the bananas. 29. Considering that the said alibi was displaced by the evidence of PW2 an PW3, I would dismiss it as an afterthought. Consequently, I nd her guilty of willfully and unlawfully cutting down crops of cultivated produce contrary to section 3349c) of the Penal Code. Accordingly, she is convicted of the same under section 215 of the Criminal Procedure Code forthwith. 30. In the upshot, I nd her guilty as charged. HON. R. B. N. MALOBA SPM 26/8/2026 DELIVERED IN OPEN COURT THIS 26TH DAY OF AUGUST 2026 IN THE PRESENCE OF: Prosecutor- Ms. Achieng C/Assistant - Mr. Aggrey Accused- Present in person. . https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/850/eng@2026-08-26 4

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