Mwendwa Iguna v Republic [2018] KEHC 5117 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

HCCRA NO. 12 OF 2017

MWENDWA IGUNA............APPELLANT

VERSUS

REPUBLIC........................RESPONDENT

(Being appeal from original conviction and sentence in the Principal Magistrate's Court at Marimanti in Criminal Case No. 34 of 2016 delivered by S.M. NYAGA -  (Resident Magistrate (R.M) on 25th July, 2017).

J U D G M E N T

1. The Appellant herein, MWENDWA IGUNA, was charged with the offence  of malicious damaged to property contrary to Section 339(1) of the Penal  Code  with the particulars being that on 7th July, 2017 at Kathangachini  Location, Tharaka North within Tharaka Nithi County jointly with others not  before court willfully and unlawfully destroyed three dwelling houses of  Josphat Kenyatta Watia valued at Kshs.104,750/- .  The appellant denied  committing the said offence and the prosecution presented five witnesses to  prove their case against him.

Brief summary of the case:

2. The prosecution's case at the trial majorly hinged on the evidence of two eye  witnesses, David Kithaka (PW2) and Jenniffer Karigu (PW3) who both  stated that they saw the appellant in the company of three other people not  before court.  The complainant Josphat Kenyatta Watia (PW1) was in church  at the material time and only got report of the destruction of his house from  PW2.  He reported the matter to the police who went to the scene of crime  the following day on 18th July, 2016  and noted the destruction of the three  houses belonging to the complainant.  P.C Leonard Ibwaga (PW5) told the  trial court that he took photographs of the damaged property from his mobile  phone and tendered the photographs as P.Exhibit 1 to 18 as part of the  evidence.

3. When placed on his defence, the appellant stated that he was being framed  and pointed out all the witnesses called were related to the complainant with  whom he had  had disputes and even cases before court.  He testified that  PW2 was son in law of the complainant, while PW3 was the wife to the  complainant and that two criminal cases number 499/12 and 473/13  involving the complainant's wife and himself had been  concluded with  complainant's wife being committed and sentenced to  probation.  The  nature of the cases were however not explained.

4. Based on the evidence tendered the trial court found that the prosecution had  proved their case beyond reasonable doubt and convicted the appellant  sentencing him to serve 7 years imprisonment.

Grounds of Appeal:

5. The appellant felt aggrieved by both the conviction  and sentence and  preferred this appeal raising 7 grounds namely:-

(i) That the learned trial magistrate failed to note that the  prosecution witnesses gave inconsistent, contradictory and     conflicting  evidence.

(ii) The learned magistrate failed to note that the appellant was not properly identified.

(iii) That the evidence tendered was not sufficient.

(iv) That there was no independent witness to establish the truth.

(v) That the learned trial magistrate failed to note that there was a grudge between the appellant and the complainant.

(vi) That the learned trial magistrate did not take note there was  another criminal case concluded in a different court at      Marimanti.

(vii) That his defence was not considered.

6 In his written submissions, the appellant has pointed out that the evidence  tendered by the prosecution was contradictory as while the total value of the  destroyed property is given as Kshs.300,000/- by the complainant(PW1) and  PW3, the same is contradicted by PW4 the investigating officer (PW5) who  put the value of the property destroyed at Kshs.164,000/-.

7. He has further contended that the case against him was fabricated due to a  long standing grudge between him and the appellant.  He further contends  that the prosecution witnesses conceded to the fact.  He has submitted that it  was suspicious that he was the only one arrested where the offence was  alleged to have been committed by three other people named by the  prosecution's witnesses.

8. The Respondent has while conceding that the sentence meted out was  excessive and illegal has supported the conviction and urged this court to set  aside the sentence and mete appropriate sentence as per Section 339(1) of  Penal Codewhich provides for a maximum sentence of five years.  The  Respondent  supported the conviction contending that it was justified given  the quality of evidence tendered.  According to the prosecution, they were  able to prove that there was destruction of property that the appellant  deliberately  destroyed the property with a view to evicting the complainant  because of  land dispute.  It is contended that the appellant's action was  unlawful because there was no court order permitting him to evict the  complainant from the disputed land.

Determination:

9. I have considered the grounds raised in this appeal and both submissions  made by the appellant and the Respondent.

As I have observed above the prosecution's case is majorly based on direct  evidence because PW2 and PW3 both testified that they saw the appellant   destroy houses belonging to the complainant.  In particular PW3 wife to the  complainant told the trial court that she was at home when he heard people  talk outside her house and upon checking  he noticed the appellant together  with one Tharaka, Mungwoki and Nyaga carrying out destruction and  fencing off part of their land.  This was corroborated by PW2 but the  appellant on the other hand has contended that the complainant and his wife  had a grudge against him and conspired to frame him in order to have  revenge given that  PW2 had been convicted in a separate case where the appellant was the  complainant and also in another case where appellant's  wife was the complainant.  He has pointed out that PW2 is a son in law to  the complainant which was conceded by PW2.

10. The appellant contends that the prosecution witnesses may have given  evidence against him because of a grudge.  This court as indeed established,  based on the evidence tendered, that there was bad blood between the  complainant and his wife on one hand and the appellant on the other. This  aspect appears not to have been considered by the trial court but the evidence of PW4, the investigating officer cannot be faulted for favouring  one side because no evidence was given to show that the police was biased  against anyone.  The only downside of the evidence tendered by the  investigating officer is that he tendered the photographs as P .Exhibit 1 to 18  which appears not to have been processed and tendered  in accordance with  the law.  The investigating officer tendered photographs of a  scene of  crime contrary to the provisions of Section78 (1) of the Evidence Act which  requires such photographs be taken and produced with a  certificate by an  authorized officer duly appointed by Director of Public  Prosecution as provided under the schedule of the Evidence Act.  The photographs were  therefore inadmissible in evidence and the trial court erred by relying on  them to found a conviction. That error was however not fatal  because  under Section 382 of Criminal Procedure Code the same is  curable. The  appellant suffered no prejudice as a result.  The investigating  officer testified on what he witnessed at the scene and his testimony in my  view  was sufficiently to corroborated by the evidence of PW1, PW2, and PW3 in  so far as the destruction of the complainant's house is concern.  I of course  agree that the evidence given by the complainant and the investigating  officer is contradictory in regard to the value of the destruction but that inconsistency is insignificant.  This court is satisfied that the evidence  tendered save for what I have observed  above, was sufficient to prove  beyond reasonable doubt that the appellant committed the offence he was  charged with.  The failure by the police to apprehend the other accomplices  did not alter the weight of the prosecution's case.

12. On sentence ,I agree with the prosecution that the trial magistrate erred in  meting out a sentence which was not only harsh but illegal.  The sentence  provided under Section 339(1) of the Penal Code is a maximum jail term of  five (5) years but  the trial court handed the appellant seven (7) which is  erroneous because it is not provided by law.  In the premises, I partly allow  this appeal.  For the reasons aforestated I uphold the conviction but I set  aside the sentence of 7 years and in its place, given the mitigating  circumstances particularly on the existence of bad blood between the  appellant and the complainant,  I will  sentence the appellant to the period he  has already served in jail (which is one year).  He shall therefore be set free  forthwith unless otherwise lawfully  held but he is cautioned to be law  abiding and avoid taking the law in his own hands in future.

Dated, signed and delivered at Chuka this 23rd day of July, 2018.

R.K. LIMO

JUDGE

23/7/2018

Judgment dated, signed and delivered in the open court in presence of appellant in person and Machirah for Respondent.

R. K. LIMO

JUDGE

23/7/2018