James Malo Ba Wanzetse v State [2017] KEHC 2976 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KAKAMEGA

HCRA NO. 26  OF 2017

JAMES MALO BA WANZETSE..............APPLICANT

VERSUS

STATE....................................................RESPONDENT

(Arising from the judgment of Hon. S.K. Ngetich    in  Criminal case No.373 of 2016 at Senior Principal  Magistrate’s court  Mumias  )

J U D G M E N T

1. James Maloba Wanzetsethe appellant  herein was charged and convicted of the following offences:-

i.Cutting  down crops of cultivated produce contrary section 334 (a) of the Penal Code .

ii. Stealing contrary section 275 of the Penal Code.

iii.Refusing to permit finger prints to taken contrary section 55 ( 5) as read with section 55(6) of the Police Service Act No. 11(4) of 2011 Laws of Kenya. He was sentenced as follows:

Count 1 – Fined  Kshs. 50,000/= in default 12 months imprisonment .

Count 2- kshs. 20,000/= in default 6 months imprisonment.

Count 3 – Kshs. 5,000/= indefault 3 months imprisonment .

2. Being dissatisfied  with the Judgment he filed this appeal   citing the following grounds:-

i. THAT , the learned trial magistrate failed to evaluate keenly the evidence on record and connected him on after thought exhibits.

ii. THAT, the prosecution failed to shift its burden of proof of the accused person that led to miscarriage justice.

iii. THAT , the learned magistrate objected his alibi defence in unclear grounds.

iv. THAT, there was no proper investigation that was carried out, it was shoddy, sketchy and lacked merit to warrant a conviction.

v. THAT , the sentence that was imposed on him was unreliable since they all run consecutively .

vi. THAT ,he   wished to adduce more grounds after being provided.

3. When the appeal came for hearing the appellant relied  on his written submissions . He states in the submissions that the evidence  adduced showed  that the suit land was located at Itenje Sub location ,of Mumias Sub – County, whereas the title deed and the Agriculture Officers  talk of land in Musanda.

4. He terms  the prosecution evidence as being doubtful since  no photos of the destroyed maize  or the stalks  themselves were produced in Court . He claimed that he was not supplied with advance  evidence and he was not informed of  his rights under Article 50 of the Constitution .

5. He submitted that him  and PW2 had differences and so the evidence of PW2 could   not be relied on to convict him.

He added that his Judgment was read out to him in Chambers  while he was in handcuffs.

6. The State through Mr. Juma opposed the appeal . In his written submissions he stated that it was proved  that the land in issue belonged to the complainant PW1. A title deed in his name was produced (EXB1). That he bought the land from the appellant’s deceased father. This was confirmed  by the appellants’ own brother (PW2) . The  loss occasioned by the damaged  crops was assessed at Kshs. 253,152/= by PW3 an extension officer.

7. Relying on the case of Wanunga vs R ( 1981) KLR 426 and R vs Jurnbull& 3 others (1976)3 ALLER 549,on the  issue  of identification he submitted that the appellant was property identified . The eye witness here was PW2 who  well identified the appellant .

8. He further submitted that after cutting the maize,he transported it to his house. In so acting he deprived the complainant of the use of his  maize . On the definition of theft  he referred to  sections 267(2) and 268 of penal Code, and submitted that both had been satisfied.

He finally submitted that the appellant had  denied the Police  an opportunity to carry out their mandate of taking finger prints as is provided  for under section 21 (a) of the Police Service Act. There was no lawful reason for  him to act in that manner, he argued.

9. A summary of the case is that PW1 Joseph Blame Amueyebrought 2 acres of land from the father of the  accused , who is now deceased ( DEXB1a) . PW1 produced a title deed to the  land in his name ( EXB1) certificate of search ( EXB3 ), a sale agreement ( EXB2) . He was in Nairobi when this incident took place but he advised the reportee( PW2) to report the matter to the administration.

10. PW2 Luka Ongoma is a brother to the accused. He  witnessed the accused cutting  down maize crops on PW1’s  shamba . He also confirmed that PW1 had bought  the land from their  late father .

PW3 Lucas Werethe  extension officer was shown the land in Murumba village  of Musanda Location and carried out crop damage assessment , on 1st February, 2016 . He acted on the chief’s letter . He carried out the assessment and found  the loss to be Kshs. 253,152/= . He produced the report ( EXB4). Some of the maize  had been harvested and others cut down.

11. PW5 P.C Harima Nwaswa  is the investigating officer . He received a complaint on 16th  January 2016  in respect  of the damage of maize  belonging to PW1 who  brought him all relevant documents . The appellant was arrested on 16th January, 2016 .

12. This is a first appeal, and this court has a duty to re-evaluate and reconsider the evidence and come to an independent conclusion. In the case of  Soki vs R(2004) 2 KLR21 the Court of Appeal said this  of the duty of a 1st appellate court :

“ It is the duty of a first appellant Court to remember that parties are entitled to demand of it a decision on both questions of fact and  of law and the court, is required to weigh conflicting evidence and draw its own interference  and conclusion bearing in mind always that it  has neither seen nor heard the witnesses and make  due allowance for this.”

13. I  have  perused the entire proceedings ( both the original and typed) and I wish to point out that in the typed proceedings the entire evidence  of PW4 ( John Mombo Amukoya ) is missing  and I will therefore not refer to it in this judgment .

The issues that are, for determination are;

i.   Who owns the land on which the destroyed crops stood?

ii.  Was there damage to any crops?

iii. Was any produce stolen ?

iv. If the answer to (ii) and (iii) is in the affirmative  then who owned the crops  and who committed these acts?

iv.  Did the appellant  submit  himself for finger printing ?

Issue no. i).  Who owns the land  on which the destroyed crops stood?

14. PW1 produced a title deed with the title S/WANGA/MUSANDA/1553 in the name of Joseph Blame Amueye  Mombo measuring 0. 82 Ha. ( EXB1) . He also produced a certificate  of search ( EXB3) and a copy of a sale  agreement for two acres of land in respect  himself  and the  accused’s late father.The title of the original land was S/WANGA/MUSANDA/75 The land in question therefore belongs to the  complainant as per the documents  presented to the court.

Issue no.(ii) Was there damage to any crops?

15. PW2 and PW3  have confirmed that crops were damaged . PW3 then assessed  the damage as per the report ( EXB4). PW3 testified  that he found  some  harvested crops and others were simply cut down . He however did not take any photos of the damaged  crops to make his case strong . All the same   going by the evidence of the 3 witnesses its confirmed that there was  destruction .

Issue no iii). Was any produce stolen ?

16. It was the evidence of PW2 that after cutting down the maize  the  appellant  carried the maize to his  house . He allegedly  did this with his wife . His  home  is 50M from this  land . Pw5 testified that another officer apart from himself  visited the scene . This officer did not testify. No Police Officers went to the appellants home  to confirm that indeed he  had transported the maize there.  The  Police  had  all the power and machinery  to retrieve that maize as an exhibit . I am not satisfied that the maize ended up in the appellants house  or home.

Issue no iv) If the answer  to (ii) and (iii) is in the affirmative who owned the crops  and who committed these acts?

17. Issue no(ii) has been  answered  in the affirmative while issue no (iii) was  answered in the negative .

It is clear from the evidence of PW2 that as he went to the market  he saw his brother ( the appellant )  cut down the crops on the land in  question. He immediately notified  PW1 who   had planted the  maize and he reported to the Police at Musanda Police Station . The Police Officers visited the scene . These issues are as far as the land S/WANGA/ MUSANDA/ 1553 is concerned.

18. The appellant made a sworn defence and produced some documents. He states that the charge sheet mentions Etenje location as the place where the maize was destroyed . I have  seen that in the  said charge sheet .It is not clear whether Elenje and Musanda is  one and the same place . The report by the extension officer EXB4 shows that the land is in Murumba village , Musanda  Sub location and Musanda location. The letter (DEXB4) written by Chief  in respect of the appellant’s complaint is by the chief of Musanda Location S/Wanga Division.

19. It is clear that the land cannot be in Elenje Location and Musanda Location at the same time. The appellant states  that it is  him who had a complaint over the said land.

20. From what is before this Court it is clear that the original  title is S.WANGA/MUSANDA/750 . Is this title still in existence given that PW1 has a new title emanating from the said original title? These are questions which should have been addressed  by the  trial court .

21. The appellant is claiming that the said land  is not in Elenje as indicated in the Charge sheet but in  Musanda . The best the trial  court should have done would  have been to visit  the land in question to satisfy  itself of the correct position . There is no evidence that there was any such site visit .

22. PW5 as the investigating officer never visited the site nor produced any destroyed crops in court . PW3 who  did the  assessment report did not  take  any photos  of the  damaged maize , as evidence from the ground to give  his report more flesh.

PW1 has title to this land but he must ensure that the differences they have on the ground are amicably resolved . The appellant has  no right to interfere  with that land, as it is in PW1’s name.

23. Secondly the appellant  must resist  from  taking the law in his hands . If he has any  issues  in relation  to the manner, PW1 got the title he  should channel that at the correct forum , and  not destroy any crops on the land in  issue.

24. Issue no. v) Did the appellant  submit  himself for finger printing?

I  have seen in the Judgment  at page 4 paragraph 9 that  PW5 stated that the appellant  refused to have his finger  prints  taken and  only had them taken  after a month .I have gone  through the evidence of PW5  but I have failed to see anything on finger prints . The witness may have said so but its not  borne by the record. This  is Court of record and since that evidence is not borne by the  record I take it that PW5 did not state so.I therefore find no evidence in relation to count no. 3. All in all  I find the offences in count No. 2 & 3 not proved.

25. The Appeal is partially successful. Its allowed to the extent that the conviction on count 2 & 3 are quashed, while the conviction on the 1st count is upheld.

The sentences  in respect of count 2 &3 are set aside . Under the Penal Code any fine of between Kshs. 15000/= - 50,000/= carries a maximum default sentence of 6 months . The appellant was given  default  sentence of 12 months which  is unlawful.

26. I therefore set aside the default sentence in count 1 and substitute it with a default sentence of 6 months as provided for under the law.

27. The sentence for count 1 will therefore be a fine of Kshs. 50,000/= in default 6 months imprisonment. This will be from the date of  conviction .

Orders accordingly .

Delivered , signed and dated this 31st day of August,2017 at Kakamega .

H.I. ONG’UDI

JUDGE