Silas Omondi Onyango v Republic [2014] KEHC 6550 (KLR)

ORIGINAL

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

CRIMINAL APPEAL NO. 56 OF 2012

SILAS OMONDI ONYANGO............................................................APPELLANT

VERSUS

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

[From original conviction and sentence in the Senior Resident Magistrate’s Court at  Nyando Criminal Case No. 853 of 2011  Before Hon. C. Owiye]

J U D G M E N T

The appellant was charged with the offence of giving false information to a person employed in a public service contrary to section 129 (a) of the penal code.

The particulars are that on the 18-2-2011 at Chemelil police station post in Muhoroni district within Kisumu county informed Ag IP Galgalo Wario a person employed in a public service that your cane was maliciously damaged of which information you knew or believed to be false intending thereby cause knowing it to be likely that he would cause the said Ag. IP Galgalo Wario to arrest Alice Juma Auma which the said Ag. IP Galgalo Wario ought not to have done if the true state of facts respecting which such information was given had been known to him.

He was then convicted and sentenced to 18 months imprisonment hence this appeal.

The complainant told the court that the appellant gave information that his sugarcane was destroyed by one Alice Juma Auma. According to him when he carried out the investigations he found that it was the appellant's estranged wife PW4, Hellen Cheptoo who had sold the land to PW2 Alice Juma Auma. The said witness produced sale agreement to that effect. He thus concluded that the appellant had given false information to him.

The appellant on the other hand produced documents including a report from an agricultural officer which showed that his sugarcane crops had actually been destroyed.

When this matter came up for hearing the respondent conceded to the appeal. This court finds that the said concession was justified.

The prosecution did not give the description of the parcel of land which is essential in such a charge.

Equally, there seemed to be two conflicting parcels namely Kisumu/Sidho West/ 129as relied on by the prosecution and Kisumu/Sidho East/379as clearly demonstrated by the appellant including the production of the area map.

With these two conflicting parcel of lands nothing would have been easier for the prosecution to avail the proper parcel of land. It is therefore most probable that the sugarcane allegedly destroyed were in the portion of land as submitted by the appellant.

Without going into other issues raised by the appellant this appeal ought to succeed. The same is hereby allowed, the appellant set free and the sureties discharged.

Dated, signed and delivered at Kisumu this 27th day of January, 2014.

H.K. CHEMITEI JUDGE