Republic v Wanjala & 2 others

6. She reported the matter at Nalondo and Mukhweya Police Stations. Police officers and PW8 visited the scene. The police officers took scene photos while PW8 prepared the crop damage assessment report dated 28th November 2024. 7. She conceded in cross-examination that she did not see the Accused Persons destroying her bananas. She added that PW5 saw the Accused Persons destroying the bananas. 8. PW2 Gilbert Juma Mulongo recalled that he was ploughing the lower part of PW1’s land when PW5 went to where he was and informed him that people were destroying PW1’s bananas. He moved closer to the scene when he saw the Accused Persons and other people destroying PW1’s bananas. 9. He, however, stated in cross-examination that he only saw the Accused Persons damaging the fence and erecting a boundary within the complainant’s banana plantation. 10. PW3 Peter Kasili Walubengo stated that on 20th November 2024 at around 1030hrs, while headed to his workplace, he saw people in PW1’s shamba armed with fimbos, slashers and pangas surveying the land while in the company of a private land surveyor known to him as Alex Simiyu Musiko. He called PW1 over the phone and told her about the incident. 11. PW1 later informed him on 26th November 2024 that ¼ acre of her banana plantation and a fence had been destroyed. He visited the land and confirmed the damage. He added that he saw the 3rd Accused Person along the road armed with a panga on the date of the incident. He further stated that he did not witness the destruction of the complainant’s bananas. 12. He stated in cross-examination that he was aware that PW1 bought land from the 3 rd Accused Person through two land sale agreements of ½ an acre and ¼ an acre respectively and that the said ¼ an acre of land was where the complainant’s bananas were cultivated. 13. PW4 Anthony Wamalwa Wanyonyi recalled that on 20th June 2001 while he had visited his sister (PW1), the 3rd Accused Person also visited PW1 demanding payment for the bananas that were growing in the portion of land PW1 had earlier on bought from the 3rd Accused Person. He further stated that PW1 agreed to buy the bananas at Kshs. 8,000/= and later paid the said Kshs. 8,000/= in full. 14. In cross-examination, he stated that he drafted the banana selling agreement between PW1 and the 3rd Accused Person. He also witnessed PW1 and the 3 rd Accused Person executing the said agreement. He admitted that he did not witness the destruction of the bananas. He reiterated that the destroyed bananas were on the ¼ acre of land PW1 bought from the 3rd Accused Person. 15. PW5 FNK testimony was that she was at home on 26 th November 2024 when at around noon, she heard their banana stems falling. She saw the 1 st Accused Person and other people from a distance of 50 metres away felling their banana stems. She informed PW7 about the incident, and that PW7 went to the scene. 16. She added in cross-examination that she could easily identify the 1st Accused Person on the date of the incident since the Accused Person was a person well known to her.

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17. PW6 Walter Juma Simiyu remembered seeing the 1st and 2nd Accused Persons on 26th November 2024 at around noon felling PW1’s bananas using pangas. He informed PW1 about the incident. He added that PW1 and the Accused Persons had a subsisting land dispute. 18. He reiterated in cross-examination that he saw the Accused Persons at the scene on the date of the incident. He added that the 3rd Accused Person was supervising the cutting of the complainant’s bananas. 19. PW7 RNW remembered that PW5 told her on the date of the incident that the 1 st Accused Person and other people were cutting their bananas. She went to the scene and confirmed that their bananas had been cut. She informed PW1 about the incident. 20. She admitted that she did not witness the cutting of their bananas. 21. PW8 Wiberforce Barasa Wanjala an Agriculture Officer in Kabuchai, visited the scene on 28th November 2024 to assess the damage upon being instructed by the Officer in charge, Mukhweya Police Station, through a letter dated 27th November 2024. 22. He assessed the damage to the complainant’s bananas at Kshs. 16,650/=. He produced the crop damage assessment report dated 28th November 202 as an exhibit. 23. PW9 No. 65XXX Sgt. Patrick Mang’eni of Mukhweya Police Post investigated this case. He recalled that PW1 reported this case at the police station on 26 th November 2024. He visited the scene the following morning while in the company of PC Duke Nyakundi, when he took photos of the destroyed bananas. He produced the photos and the certificate of print as exhibits. 24. He also produced agreements for sale of land and bananas executed by the complainant and the 3rd Accused Person. He produced a copy of a title deed for land parcel number E.Bukusu/N.Nalondo/1892 (“the disputed land”) showing that the complainant owned the land where the Accused Persons destroyed the bananas. 25. He added that he forwarded the agreement for sale of bananas and the 3 rd Accused Person’s specimen signatures to the Directorate of Criminal Investigations (DCI) headquarters for analysis when PW10 confirmed that the 3 rd Accused Person’s specimen signature was similar to the 3 rd Accused Person’s signature on the banana sale agreement, and that the same person appended the two signatures. 26. In cross-examination, he stated that the disputed land was measuring 0.31ha inclusive of the banana plantation where the destruction occurred. He admitted that the complainant and the 3rd Accused Person had a subsisting land dispute. He added that when he visited the land, he found a freshly demarcated land boundary. 27. PW10 No. 231XXX Alex Mwongela, SSP is a document examiner at DCI Headquarters. He recalled that on 12th August 2025, he received an agreement for buying and selling banana stems dated 20th June 2001 containing questioned signatures and the 3rd Accused Person’s specimen signatures from PW9. PW9 requested him to determine whether the same person made the questioned signatures and the 3 rd Accused Person’s specimen signatures.

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28. He examined the two documents through a process detailed in his document examiner’s report dated 13th August 2025 when he formed an opinion that the same person made the questioned signature on the banana stems sale agreement herein and the 3 rd Accused Person’s specimen signatures. He produced his document examiner’s report dated 13 th August 2025 as an exhibit. 29. In cross-examination, he stated that the age of the banana stems agreement did not affect his examination of the document. He added that he examined the original copy of the banana stems sale agreement. Accused Persons’ Case 30. The Accused Persons were placed on their defence upon close of the prosecution’s case. They elected to give sworn evidence summarized below. 31. DW1 Kizito Khisa Wanjala denied being at the scene of crime on the date of the incident since he left his home that day at 0800hrs, then proceeded to Mayanja market where he stayed until 1800hrs. 32. DW2 Anthony Wekesa Wanjala testified that he was not at home when the incident occurred. He added that he was at his place of work at St. Anthony Hospital Kibabii when the incident occurred. 33. DW3 Alfred Wanjala Makhanu admitted selling ½ an acre of land to the complainant. He admitted being at his home on the date of the incident. He admitted surveying the disputed land but denied destroying the complainant’s bananas. 34. He added in cross-examination that his land and the complainant’s land share a boundary. He further stated that the two parcels of land had banana plantations. ANALYSIS AND DETERMINATION 35. This court has given due regard to the evidence on record, as well as the 2nd Accused Person's written submissions. The only issue for determination is whether the prosecution proved its case against the Accused Persons beyond reasonable doubt. 36. Section 334 (a) of the Penal Code sets out the offence facing the Accused Persons 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…. is guilty of a felony and is liable to imprisonment for fourteen years. 37. In Republic v Christopher Bwanga [2019] KEHC 5081 (KLR), the court set out the ingredients of the offence herein as follows: “The ingredients of the offence of destroying a crop of cultivated produce are:-

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(i) evidence of destruction of a crop of cultivated produce. (ii) whether the act was wilful and unlawful. (iii) whether the crop belonged to the complainant.” 38. The provisions of the law reproduced above show that the ingredients of the offence herein are: the evidence of destruction of a crop; the destruction of the crop must be wilful and unlawful; the crops destroyed must have been under cultivation; the crops destroyed must have belonged to the complainant; and the Accused Person must have been the one who destroyed the complainant’s crops. 39. This court proceeds to consider the ingredients of the offence herein sequentially alongside the Accused Person’s defence. (a) Whether there was destruction of the bananas 40. The oral testimonies by PW1-PW9 as well as the scene photos and the Crop Damage Report dated 28th November 2024 proved beyond reasonable doubt that there was destruction of bananas on the date of the incident. (b) Whether the destruction of the bananas was willful and unlawful 41. Black’s Law Dictionary defines willful as follows: “‘Willful’ means proceeding from a conscious motion of the will; intending the result which actually comes to pass; designed; intentional; malicious…” 42. Simply put, a willful act is an intentional act as opposed to an accidental or involuntary act. 43. There is also nothing on record to suggest that whoever destroyed the bananas herein was forced to destroy the said bananas. Therefore, whoever destroyed the bananas did so consciously. 44. On whether the destruction of the bananas was unlawful, the evidence on record points to a land boundary dispute between the complainant and the 3rd Accused Person. The evidence on record also shows that the destruction of the bananas occurred when the 3 rd Accused Person and other people were demarcating a boundary between the complainant and the 3rd Accused Person’s parcel of land in the complainant’s absence. 45. The contents of the copy of the title deed and the copy of official search for the disputed land as well as the banana stems buying and selling agreement dated 20th June 2001 produced by PW9 were not controverted by the Accused Persons. The said documents proved beyond reasonable doubt that the destroyed bananas were on the complainant’s portion of land. 46. Given the complainant’s uncontroverted evidence on the ownership of the disputed portion of land and ownership of the destroyed bananas, the mere fact that there is a land boundary dispute between the complainant and the 3rd Accused Person did not warrant the 3rd Accused Person to engage a land surveyor to settle the said land boundary dispute

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herein without involving the complainant. The bananas were destroyed during the said land boundary demarcation. 47. The 3rd Accused Person did not place before this court any evidence to show that the land boundary demarcation exercise which led to the offence herein was sanctioned by law. 48. The foregoing leaves no doubt in this court’s mind that the bananas herein were destroyed when the 3rd Accused Person took the law into his own hands by conducting a disputed land boundary demarcation unlawfully. This inevitably leads to the conclusion that the destruction of the bananas in question was unlawful. 49. In the circumstances, this court finds and holds that the prosecution proved beyond reasonable doubt that the destruction of the bananas herein was willful and unlawful. (c) Whether the destroyed bananas were under cultivation 50. PW1 – PW9 testified that the bananas destroyed on the date of the incident were sold to PW1 by the 3rd Accused Person. The 3rd Accused Person planted those bananas before selling them to PW1, who continued to raise them. The Accused Persons did not impeach this evidence. 51. The Court of Appeal in James Manyoni Nyachuba v Republic [2011] KECA 73 (KLR) defined “cultivation” as follows: “As regards the ground relating to cultivation we consider it a valid ground in law in that under the section creating the offence, the standing trees must have been under cultivation. The Concise Oxford English Dictionary states that “cultivate” includes raise or grow plants especially on a large scale. Consequently, since the blue gum trees were grown by the owner, the ingredient of cultivation was present in the circumstances.” 52. A reading of the authority above shows that for crops to be deemed to have been under cultivation, the said crops must have been raised or grown by the owner or the complainant. 53. Given the uncontroverted evidence on record that PW1 bought the destroyed bananas planted by the Accused Person from the 3rd Accused Person and continued to raise them, the inevitable conclusion to be drawn is that the destroyed bananas were under cultivation. (d) Whether the destroyed bananas belonged to the complainant 54. The contents of the copy of the title deed and the copy of official search for the disputed land as well as the banana stems buying and selling agreement dated 20th June 2001 produced by PW9 show that the destroyed bananas belonged to the complainant. The oral testimonies by PW1 – PW9 corroborated the contents of the said documents. On the other hand, the document examiner’s report on record produced by PW10 proved that the 3rd Accused Person sold the bananas in question to PW1. 55. In the face of the prosecution’s evidence above on the complainant’s ownership of the land where the bananas were destroyed, and ownership of the destroyed bananas, the evidential burden, not the burden of proof, shifted to the Accused Persons to disprove the

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complainant’s ownership of the disputed land and the destroyed bananas. The Accused Persons did not adduce such evidence. 56. In the absence of evidence by any other person, other than the complainant, claiming ownership of the destroyed bananas, this court finds and holds that the prosecution proved the complainant’s ownership of the destroyed bananas beyond reasonable doubt. (e) Whether the Accused Persons destroyed the complainant’s bananas 57. PW2 stated that he saw the Accused Persons destroying a fence and demarcating a boundary in the complainant’s banana plantation. PW5 added that she saw the 1st Accused Person cutting and felling PW1’s bananas. PW6 testified that he saw the 1 st and 2nd Accused Persons felling PW1’s bananas under the 3rd Accused Person’s supervision. 58. Courts in this jurisdiction are required to answer the nine questions in Regina v Turnbull [1976] 3WLR 445 when receiving and considering identification evidence. These questions are: i. How long did the witnesses have the accused under their observation? ii. What was the distance between the witnesses and the accused person? iii. What was the lighting situation? iv. Was the observation impeded in any way, as for example, by passing traffic or press of the people? v. Had the witnesses ever seen the accused person? vi. If the witnesses knew the accused prior to the current transaction, how often? vii. If the witnesses had seen the accused only occasionally prior to the current transaction, did the witness have any specific reason for remembering the accused? viii. How long elapsed between the original observation and the subsequent identification to the police? ix. Was there any material discrepancy between the description of the accused given to the Police by the witnesses when first seen by them and his actual appearance? 59. This court has given due regard to the nine questions set out above. 60. It should be remembered that the incident happened during the day when visibility was clear. Further, PW2, PW3, PW5 and PW6 as well as the Accused Persons are people well known to each other. PW2, PW3, PW5, and PW6 were also close to the scene of crime when the incident occurred. This shows that the circumstances obtaining at the time of the incident rule out the possibility of mistaken identity. 61. This is a case of recognition. The Court of Appeal in Abuku & Another v Republic [2026] KECA 722 (KLR) reaffirmed the evidentiary strength of recognition evidence in the following words: “Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a

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witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an accused means a witness requires less time to make an accurate identification.” 62. Therefore, the recognition evidence on record is of high probative value in identifying the Accused Persons herein. 63. This court is well aware that whereas PW2, PW3, PW5 and PW6 testified that they witnessed the incident, they gave differing accounts on whether all the Accused Persons felled the complainant’s bananas. It is this court’s view that such a difference in testimonies by eyewitnesses can be attributed to frailties of human recollection, as was well explained by the Court of Appeal in Phillip Nzaka Watu vs. R [2016] eKLR, cited with approval in Kosgei v Republic (Criminal Appeal E089 of 2023) [2026] KECA 1660 (KLR), where the court expressed itself thus: “However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed it has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching.” 64. Be that as it may, the substance of the said prosecution’s witnesses' testimony is that the Accused Persons were at the scene of crime on the date of the incident. In any event, this court had the benefit of observing the said witnesses’ demeanour during their testimony before this court. They were truthful witnesses. This court finds no reason to disbelieve their evidence on the identity of the people who were at the scene of crime. 65. The 1st and 2nd Accused Persons pleaded an alibi. The cogent evidence adduced by PW2, PW3, PW5, and PW6, which remained unshaken even after cross-examination, disproved the said alibi. 66. The 3rd Accused Person, on the other hand, admitted being at home and surveying the disputed land on the date of the incident but denied destroying the complainant’s bananas. This shows that the 3rd Accused Person placed himself at the scene of crime since the destruction of the complainant’s bananas occurred during the survey alluded to by the 3rd Accused Person. 67. It is given that none of the prosecution witnesses saw the 3 rd Accused Person felling PW1’s bananas. However, the evidence on record having placed the 3rd Accused Person at the scene of crime on the date of the incident, Section 20 of the Penal Code comes into play. 68. Section 20 of the Penal Code defines principal offenders as follows:

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Principal Offenders (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say— (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids or abets another person in committing the offence; (d) any person who counsels or procures any other person to commit the offence, and in the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. (Emphasis added) 69. This court’s understanding of the provisions of the law above is that any person who does any of the things listed in section 20 (1) (a) – (d) of the Penal Code leading to the commission of a crime is deemed to be the said crime’s principal offender or perpetrator. 70. This court has already made a finding that the evidence on record placed the 3rd Accused Person at the scene of crime where he was supervising the demarcation of a land boundary in the complainant’s banana plantation. The complainant’s bananas were destroyed under the 3rd Accused Person’s supervision. He did not dissociate himself from that illegal act. The 3rd Accused Person’s failure to dissociate himself from the illegal acts of felling the complainant’s bananas created a common intention between him and the other persons to execute the illegal act of felling the complainant’s bananas (see R v Tabulayenka s/o Kirya [1943] EACA 51). 71. It is against this backdrop that this court finds and holds that the 3 rd Accused Person committed the offence herein by aiding and abetting the commission of the said offence per section 20 of the Penal Code and forming a common intention with the 1 st and the 2nd Accused Persons to commit the offence herein. 72. The upshot of the above is that the prosecution proved beyond reasonable doubt that the Accused Persons committed the offence herein. DETERMINATION 73. The upshot of the above is that the Accused Persons are convicted under section 215 of the Criminal Procedure Code for the offence of destroying crops of cultivated produce contrary to section 334 (a) of the Penal Code. 74. It is so ordered.

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Judgment read, signed, and delivered in open Court at Bungoma, this 09th day of September 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Mulwa for the ODPP Accused Persons C/A: Mr. Rioba/Ms. Cherop

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