Republic v Kundu

4. She went back home when she conrmed the damage and reported the matter to the police. She further stated that an agriculture ocer later visited her parcel of land and assessed the damage to her crops at Kshs. 17,340/=. 5. PW2 Kassim Wafula Wamae is an extension ocer within Bumula. He recalled that PW1 visited him in his oce on 11th April 2025 bearing letters from the police and her area assistant chief requesting him to assess damage to her crops. 6. PW1 led her to her land in Mabusi area where he assessed the damage to the complainant’s maize at Kshs. 17,340/=. He prepared an agricultural damage assessment report dated 11th April 2025 to that eect and produced the same as an exhibit. 7. He added in cross-examination that whereas the report did not contain the land’s parcel number, the land where the damage occurred belonged to the complainant since she led him there. 8. He could not identify whoever ploughed the land and destroyed the complainant’s maize since he did not nd the perpetrator at the scene when he visited the land. 9. PW3 No. 219xxx Sgt. Walter Ogada of Bumula Police Station investigated this case. He recalled that the complainant reported this case at Bumula Police Station on 12th April 2025 when he visited the scene and conrmed the damage to the complainant’s maize. He also noticed that cassava had been planted on that parcel of land. He added that he referred the complainant to the agriculture oce for further action. 10. In cross-examination, he conceded that he arrested Irine Makokha as a suspect in this matter for facilitating the accused person in committing the oence herein. He admitted that Agatha, who reportedly witnessed the Accused Person’s destruction of the complainant’s maize, stated in his witness statement recorded by the police that Irine Makokha hired the Accused Person to plough the land where the damage occurred. 11. He also admitted that the particulars of the oence were erroneous since the Accused Person did not graze calves on the land where the damage occurred. He reiterated that the Accused Person ploughed the land in question, leading to the destruction of the complainant’s maize. Analysis and Determination 12. This court has given due regard to the evidence on record as well as the Accused Person’s written submissions on a motion of no case to answer. It is this court’s considered view that the issues for determination are: a. Whether the charge sheet is fatally defective b. Whether the prosecution has established a prima facie case against the Accused Person Whether the charge sheet is fatally defective 13. The particulars of the charge show that the Accused Person unlawfully grazed the calves on the complainant’s farm, leading to the destruction of the complainant’s maize valued at Kshs. 17,340/=. 14. PW1 and the investigating ocer, on their part, conceded that the Accused Person allegedly destroyed the complainant’s maize by ploughing the same. The investigating ocer admitted that there was an error in the particulars of the charge herein. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/913/eng@2026-08-26 2

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15. The foregoing shows that there is a variance on the particulars of the charge and the evidence adduced by the prosecution in support of their case against the Accused Person. This begs the question whether the instant charge sheet is fatally defective. 16. The test of whether a charge sheet is defective or not was restated by the Court of Appeal in Benard Ombuna v Republic (2018)eKLR as follows: “ The test whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of charges preferred against him and as a result, he was not able to put up an appropriate defence.” 17. This court’s reading of the authority above is that a charge sheet can only be held to be fatally defective if the defect on the charge sheet prejudiced the Accused Person to the extent that he was confused about the nature of the charge facing him, thus making it impossible for the Accused Person to put up an appropriate defence to the charge facing him. 18. In this case, the Accused Person was confronted with two versions of the circumstances under which the oence herein was reportedly committed. One version, as set out in the charge sheet, was that he grazed calves on the complainant’s land, thus destroying the complainant’s maize. The other version advanced by the prosecution witnesses was that he destroyed the complainant’s maize by ploughing. 19. This court takes the view that if this court places the Accused Person on his defence based on the evidence on record and the particulars of the charge supplied to him, the Accused Person will be prejudiced in mounting his defence since he will be torn between defending himself against allegations of grazing the complainant’s maize or allegations of ploughing the complainant’s maize. 20. The prosecution had the option of amending the charge sheet herein under section 214 of the Criminal Procedure Code before the close of their case for the particulars of the charge to align with their witnesses’ evidence. They did not exercise that option. 21. The court in Roba Abdi v Republic [2019] KEHC 11184 (KLR), when confronted with a situation like this where the charge sheet had not been amended under section 214 of the Criminal Procedure Code despite the particulars of the charge sheet being at variance with the evidence adduced by the prosecution, held thus: “ The particulars of the charge do not indicate that the Appellant committed an “indecent” act. The particulars were not amended by the prosecution. The prosecution was therefore bound to prove the said particulars. The trial court also failed to discharge its duty under Section 214 of the Criminal Procedure Code. The said Section allows the court to order for an alteration or amendment or a substitution of the charge as the court may deem necessary, when the same is found to be defective. The Court of Appeal in Isaac Omambia V Republic, [1995] eKLR held that: “In this regard, it is pertinent to draw attention to the following provisions of S. 134 of the Criminal Procedure Code which makes particulars of a charge an integral part of the charge: Every charge or information shall contain, and shall be sucient if it contains a statement of the specic oence or oences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the oence.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/913/eng@2026-08-26 3

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This court therefore holds that the charge sheet in the present appeal was defective since the facts of the case were in variance with the particulars provided in the charge sheet. The same is not curable under Section 382 of the Criminal Procedure Code as it was prejudicial to the Appellant. There was a miscarriage of justice to the Appellant since he had a right to be given all information as to the nature of his oence to enable him prepare his defence. In the Isaac Omambia case (supra), the Court of Appeal observed that there was a miscarriage of justice in that case since the particulars established at trial were dierent from those indicated in the charge; even though the said facts nonetheless amounted to the oence. The court is not allowed to create a new charge against the Appellant. It has to deal with the charge presented before it…”(Emphasis added) 22. Given that the charge sheet herein was not amended under section 214 of the Criminal Procedure Code and guided by the holding in the Ombuna case (supra) and the Roba case (supra), it follows that the charge sheet herein is fatally defective. 23. The nding that the charge sheet herein is fatally defective is enough to dispose of this matter. However, for completeness of the record and for appeal purposes, this court proceeds to determine the next issue of whether the prosecution has established a prima facie case against the Accused Person. Whether the prosecution has established a prima facie case against the Accused Person 24. The term prima facie is dened by the Black’s Law Dictionary, 18th edition, as: "A case sucient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on rst examination, even though it makes later be proved to be untrue.” 25. In Ronald Nyaga Kiura vs. Republic [2018] eKLR, the court dened a prima facie case as follows: “ …A prima facie case is established where the evidence tendered by the prosecution is sucient on its own for a court to return a guilty verdict if no other explanation in rebuttal is oered 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 sucient for the trial court to place the accused to his defence.” 26. The legal principle which emerges from the authorities above is that the question that this court needs to answer at this stage is whether, based on the evidence adduced by the prosecution, this court will convict or acquit the Accused Person if he chooses to remain silent when placed on his defence. Where the answer to this question is that the court will acquit the Accused Person if he keeps silent when placed on his defence, then the Accused Person must be acquitted under section 210 of the Criminal Procedure Code. 27. Section 334 (a) of the Penal Code sets out the oence facing the Accused Person in the following terms: 334. Any person who willfully and unlawfully sets re 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. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/913/eng@2026-08-26 4

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28. In Republic v Christopher Bwanga [2019] KEHC 5081 (KLR), the court set out the ingredients of the oence herein as follows: “ The ingredients of the oence of destroying a crop of cultivated produce are:(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.” 29. The provisions of the law reproduced above show that the ingredients of the oence 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. 30. The foregoing begs the question of whether the prosecution has at this stage established a prima facie case that the Accused Person willfully and unlawfully destroyed the complainant’s maize under cultivation. 31. None of the witnesses called by the prosecution saw the Accused Person ploughing the complainant’s maize. The complainant and the investigating ocer conceded that Agatha was the one who reportedly saw the Accused Person ploughing the complainant’s maize. The investigating ocer added that Agatha informed him that the Accused Person’s sister Irine Makokha hired the Accused Person to plough the complainant’s maize. 32. The prosecution did not give any reason why they did not call Agatha and Irine Makokha to lead evidence on the circumstances under which the Accused Person reportedly committed the oence herein. 33. It is not lost to this court that the prosecution is not supposed to call a superuity of witnesses to prove their case. However, where the evidence on record is barely adequate, as in the instant case, the court is permitted to draw an adverse inference that had the prosecution called the witnesses whom they failed to call, the evidence by the omitted witness would have been adverse to the prosecution’s case (see Bukenya vs. Uganda [1972] EA 549). 34. In the absence of Irine Makokha’s testimony, this court cannot tell whether the Accused Person was just an innocent labourer who had been hired by his sister to plough land and crops he honestly believed belonged to his sister or whether he had formed a common intention with his sister to destroy the complainant’s maize. 35. In the penultimate, this court nds that the evidence on record is barely adequate for this court to place the Accused Person on his defence. Determination 36. The upshot of the above is that the Accused Person is acquitted under section 210 of the Criminal Procedure Code for the oence of destruction of crops under cultivation contrary to section 334 (a) of the Penal Code. 37. The Accused Person is set at liberty unless otherwise lawfully held. 38. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/913/eng@2026-08-26 5

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RULING READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 26TH DAY OF AUGUST 2026 T. O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Mulwa and Ms. Achieng for ODPP Mr. Murunga for the Accused Person Accused Person C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/913/eng@2026-08-26 6

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