Republic v Khaemba

5. PW2 Anthony Wanjala Wafula stated that on the date of the incident at around 2200hrs, he heard screams from the direction of PW1’s home, which is 30 metres from his home. He stepped out and stood by his fence when he saw the Accused Person pelting PW1’s house with stones. He also heard some girls screaming while alleging that there were thugs in PW1’s house. He clarified that the lights from PW1's and the Accused Person’s house helped him to see whatever was happening. 6. He added that PW3 joined him at the scene. Police officers visited the scene that night when he accompanied them and the girls who were screaming to search for thugs from PW1’s house. The alleged thugs were not found in the Accused Person’s house. He found stones and bricks used to pelt PW1’s house at the scene. 7. He stated in cross-examination that the Accused Person stopped pelting the complainant’s house with stones when police officers responded to the scene. 8. PW3 Peter Juma Destin is PW1’s neighbour and the Accused Person’s father-in-law. He heard screams and dogs barking on the night of the incident at around 2200hrs when he ventured out and met PW2. They proceeded in the direction the screams were coming from. He used the security lights to see the Accused Person holding stones and bricks. He also heard the Accused Person’s sisters screaming that thugs were hiding in PW1’s house. He added that a search was conducted in PW1’s house, but no thug was found hiding there. 9. He reiterated that the Accused Person damaged the complainant’s house. He added that he found many stones and bricks at the scene. 10. He further stated in cross-examination that police officers responded to the scene and gave the Accused Person’s sister a torch to search PW1’s house. 11. PW4 No. 83XXX CPL Kevin Onyango of Mayanja Police Station investigated this case. He testified that on 28th April 2026, the Accused Person’s brother visited the police station at night and reported that people had attacked him and that they were destroying his house. 12. He proceeded to the scene while in the company of PC Obadiah when they found the Accused Person’s sister, Nafuna, screaming that thugs were hiding in PW1’s house. Nafuna led them to the Accused Person’s house where no thug was found even after a search. He added that PW1 had also called him that night and informed him about the damage to his house. 13. He also confirmed damage to PW1’s roof’s six iron sheets. He found stones at the scene. He revisited the scene the following day and took scene photos, which were later processed by PC Munyes. He produced the scene photos and the certificate of print as exhibits on behalf of PC Munyes, who was away on official duty. 14. In cross-examination, he stated that the complainant did not mention the Accused Person when he called him that night and informed him that his house had been attacked. He added that Nafuna alleged that whoever had damaged the Accused Person’s house was hiding in PW1’s house.

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15. He maintained that the Accused Person was arraigned for the offence herein because witnesses saw him pelting PW1’s house with stones. Accused Person’s Case 16. This court placed the Accused Person on his defence after the close of the prosecution’s case. The Accused elected to give sworn testimony. He called two witnesses. The evidence adduced by the defence is summarized below. 17. The Accused Person (DW1) denied committing the offence herein. His testimony was that he heard people destroying his brother’s (DW2) house on the night of the incident by pelting it with stones. He screamed when neighbours responded causing the people who were reportedly destroying DW2’s house to flee. 18. He added that DW2 and DW3 reported that incident to the police when police officers responded and proceeded to PW1’s house. He also stated that police officers passed by DW1’s house that night but refused to photograph the damage. He produced photos showing damage to DW1’s house as exhibits. 19. DW2 Brian Nyongesa Kamili is the Accused Person’s brother. His testimony was largely a regurgitation of the Accused Person’s testimony. He described the charges herein as trumped-up charges meant to mask police officers’ inaction in investigating his malicious damage to property report to the police station. He also attributed this case to his complaint to IPOA and the OCS Mayanja about the police officers’ failure to investigate his complaint. 20. He added in cross-examination that his sister was screaming on the night of the incident since people were damaging his house. 21. DW3 Centrine Nafula Kamili is the Accused Person’s sister. Her version of events on the date of the incident mirrored DW1 and DW2’s testimony. 22. She added in cross-examination that she could not tell whether PW1’s house was damaged on the night of the incident, and that their house was about 150 metres from the complainant’s house. Accused Person’s Written Submissions 23. The Accused Person filed written submissions reiterating that he did not commit the offence herein. He took issue with the prosecution witnesses’ failure to produce a photo or a video of him destroying PW1’s house. He also questioned the prosecution witnesses’ ability to identify him at night. The Accused Person further submitted that the scene of crime was stage managed given that the stones photographed at the scene were in a heap yet pelted stones ought to have been scattered. ANALYSIS AND DETERMINATION 24. This court has carefully considered the evidence on record as well as the Accused Person’s written submissions. The only issue for determination is whether the prosecution has proved their case against the Accused Person beyond reasonable doubt. 25. Section 339 (1) of the Penal Code sets out the offence of malicious damage to property as follows;

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“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.” 26. In Joseck Muthuri Mwarania v Republic [2020] eKLR, it was stated that under the above definition, the elements of the offence are: (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 willful and unlawful. 27. The elements of the offence herein were also stated in Simon Kiama Ndiagui v 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. 28. Having fully appreciated the ingredients of the offence herein as set out in the authorities above, this court now proceeds to determine sequentially whether the prosecution proved the ingredients of the offence herein beyond reasonable doubt. This court will consider the said ingredients of the offence alongside the Accused Person’s defence. Whether the complainant owned the house in question 29. It is common ground that the complainant owned the house in question at the time of the incident. Therefore, this court finds and holds that the prosecution proved beyond reasonable doubt that the complainant owned the house in question. Whether the complainant’s house was damaged 30. The prosecution’s witnesses’ testimonies, when read together with the scene photos produced by PW4, show that the complainant’s house’s iron sheets were damaged. The Accused Person submitted that a heap of stones at the scene showed that the scene had been stage-managed. 31. However, a look at the scene photos shows that there were scattered pieces of broken bricks at the scene. The said photos also show that the stones at the scene were not in a heap as submitted by the Accused Person. 32. The scattered pieces of bricks and stones at the scene are consistent with the prosecution’s case that the complainant’s house was pelted with stones. In any event, this court is not convinced that a person will destroy his own house to settle scores with another person. 33. The contents of the scene photos are corroborated by the oral testimonies of PW1 and PW2 who maintained that PW1’s house was pelted with stones on the night of the

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incident. The said testimonies remained cogent even after the Accused Person’s crossexamination. In the circumstances, the Accused Person’s submission that this court was treated to a stage-managed scene was dislodged by the prosecution’s evidence on record. 34. It is against this backdrop that this court finds that the prosecution proved beyond reasonable doubt that PW1’s house was damaged on the date of the incident as set out in the particulars of the charge. Whether the Accused Person damaged the complainant’s house 35. PW1, PW2, and PW3, who witnessed the incident, reiterated that they saw the Accused Person pelting the complainant’s house with stones. They added that the security lights around the scene enabled them to identify the Accused Person. 36. The Accused Person, on his part, denied committing the offence. He submitted that PW1, PW2, and PW3 could not have seen him that day since the incident happened at night. He also attributed the charge facing to his brother’s complaint against police inaction to investigate his malicious damage case reported at Mayanja Police Station. 37. The Accused Person’s position that his identification at night by the prosecution witnesses was not safe is not an idle one. The position taken by the Accused Person on this issue was reiterated by the Court of Appeal in Joseph Muchangi Nyaga & another v Republic [2013] eKLR where the court stated that before acting on evidence of visual recognition, the trial court must make inquiries as to the presence and nature of light, the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him subsequently. 38. This court has duly considered the guidance given in the above authority on visual identification. PW1, PW2, PW3, and the Accused Person are neighbours. They are persons well known to each other. PW1 – PW3 were also clear that the security lights enabled them to identify the Accused Person that night. The Accused Person has not disputed the existence of the security lights on the date of the incident. PW2 and PW3 also stayed near the scene of crime. This means that they were close to the scene of crime when the events of this case were unfolding. 39. The foregoing shows that this being a case of recognition coupled with the fact that security lights were on when the incident occurred, and that PW2 and PW3 were close to the scene of crime when the incident occurred, the Accused Person’s position that the prosecution witnesses could not identify him that night is not sustainable. 40. It is also noteworthy that the Accused Person placed himself near the scene of crime on the night of the incident since he admitted waking up that night to check on the alleged damage to his brother’s house, which is close to the complainant’s house. 41. Whereas the Accused Person and his witnesses testified and submitted that this was a trumped-up case arising from DW2’s inaction complaint against PW4, this court wonders why PW4 would choose to charge the Accused Person to settle scores with DW2.

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42. The Accused Person also admitted before this court that he did not have any differences with PW1 before the incident. It should also be remembered that PW3 is the Accused Person’s father-in-law. At least, from the evidence on record, there are no differences between the Accused Person and PW3. This rules out the possibility of PW1 and PW3 colluding with PW4 to charge the Accused Person in this case. 43. In the circumstances, it is this court’s finding that the prosecution proved beyond reasonable doubt that the Accused Person damaged the complainant’s house on the date of the incident. Whether the Accused Person willfully and maliciously damaged the complainant’s house 44. On whether the Accused Person’s damage to the complainant’s property was willful and unlawful, the evidence on record shows that the Accused Person’s damage to the complainant’s house was motivated by the damage to DW2’s house by people who were suspected to have hidden in the complainant’s house after reportedly damaging DW2’s house. 45. Even if this court were to believe that the people who reportedly damaged DW2’s house hid in the complainant’s house after the alleged damage, that does not justify the Accused Person’s action of damaging the complainant’s house. Holding otherwise will encourage members of the public to take the law into their own hands, thereby causing anarchy and a complete breakdown of law and order. That is an undesirable outcome this court cannot countenance. 46. The analysis above shows that the action taken by the Accused Person on the date of the incident was unlawful. Further, nothing on record suggests that the Accused Person was forced to damage the complainant’s house or that the Accused Person was under the influence of anything that impaired his judgment when he damaged the complainant’s house. 47. Given the reasons above, this court finds and holds that the Accused Person willfully and unlawfully damaged the complainant’s house as set out in the particulars of the charge herein. The Accused Person’s Defence 48. This court has already considered the Accused Person’s defence while determining whether the prosecution proved its case against the Accused Person beyond reasonable doubt. The prosecution’s cogent evidence dislodged the Accused Person’s defence. 49. In penultimate, the Accused Person’s defence is dismissed in its entirety for being a mere denial which did not cast any reasonable doubt on the prosecution’s case. DETERMINATION 50. The upshot of the foregoing is that the Accused Person is convicted 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. 51. Judgment accordingly.

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Judgment read, signed, and delivered in open Court at Bungoma this 07th day of September 2026. T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Mulwa for ODPP Accused Person C/A: Mr. Rioba

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