Republic v Otaigo & 3 others (Criminal Case E374 of 2025) [2026] KEMC 365 (KLR)

The Prosecution Case 3. The prosecution called Five witnesses namely; 1. Joseph Matinde Mukirya (complainant) (PW1) 2. James Chacha Matinde (PW2) 3. Calvince Onyango Okiro (PW3) 4. Charles Onyango (PW4) 5. No. 108179 Pc Mark Munguti (PW5) 4. The prosecution evidence was that PW1 on 15/8/2025 at 6:00am he woke up and found the accused cutting his trees, bananas and others planting maize. He said that Otaigo is the one who had a panga and was the one cutting bananas and trees. The others had jembes and were planting maize. When they saw Otaigo Irecho approached him with a panga and PW1 went home and told his first wife who is a Balozi (village elder). She went and came with police oficer4s at home. The police found the accused persons planting maize. They were arrested with the tools they had. He identified the panga Irecho had as PMFI-1, two jembes as PMFI-2(a & b). they were then taken to the police station. 5. Later the police visited the scene and referred him to the forest oficer who came and assessed the damage and did a report dated 18/8/2025 which he identified as PMFI-3(a) and photographs as PMFI-3b(1-7) and agricultural report dated 15/8/2025 as PMFI-4. The police oficers photographed the scene showing the damages in his land marked as PMFI-5(1-54). He said the accused said that it Maina who send them to destroy the trees and bananas as he has a school which neighbours his land and wants to extent the same into his land Bukira/Buhirimonono/4841. He identified his title deed as PMFI-6 and produced the same as exhibit-6 6. PW2 evidence was that on 15/8/2025 at 6:00am he was at home and saw five people working in their land. One was cutting trees and bananas who was Otaigo Irecho using a panga and the other accused persons were planting maize using jembe. The accused were arrested and charged. 7. PW3 A forest oficer produced the report marked as PMFI-3(a) as exhibit-3 and photographs marked as PMFI-3b (1-7) as exhibits 3b (1-7). He said the total damage value was Kshs. 35,438/=. PW4 produced the agricultural oficer’s report dated 15/8/2025 as exhibit-4 and the photo as exhibit-5 8. PW5 investigated the case, arrested and charged the accused persons. He said on 19/8/2025 he visited the land and photographed the scene which was 54 in total which he produced as exhibit 5(1-54) and certificate as exhibit-7. The accused persons told him that they were working on the land of Maina who came at the police station but he did not have any ownership documents. The complainant had a title deed for Bukira/buhirimonono/4841. He produced the panga as exhibit-1 and two jembes as exhibit-2(a & b) 9. PW5 said later Maina came with a title deed and they requested for a surveyor who came at the scene but the complainant refused to attend the boundary determination. Maina told him that he hired the accused persons to clear the bananas and acacia trees to be able to plant maize. Maina showed him the sale agreement. PW5 admitted that it was hard for him to know the truth as complainant refused to attend the re-survey of the two parcels. The prosecution then closed its case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/365/eng@2026-07-30 2

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The Accused Defence Case 10. DW1 Wilson Irecho Otaigo the first accused gave sworn defence and denied the charges. His defence was that on 10/7/2025 he leased land from James Maina vide a lease agreement dated 10/7/2025 which he produced as exhibit-D1. On 12/8/2025 he sprayed the land. On 15/8/2025 at around they went to plant maize and while planting police came and told them that the land belongs to another person. One Susan Matinde said the land is theirs. Immediately Joseph Matinde came at the scene. They were then taken to the police leaving behind the maize seeds and fertilizer. He said they did not cut the complainant’s trees as alleged. It is James Maina who told them to cut the bananas that were near the latrine which were in his land. That there were no trees in James Maina’s land. 11. DW2 Jackson Chacha Otaigo the 2nd accused gave sworn defence and denied the charges. His defence was that they were planting maize in the land Wilson Irecho had leased. They did not cut any trees as they only cut bananas and took them to the road. 12. DW3 Peter Matiko Chacha the 3rd accused gave sworn defence and denied the charges. His defence was that on 15/8/2025 DW1 called him and told him that they go plant maize in the land he had leased form James Maina. That while they were working the police came and arrested them. His work was to cover maize seeds with soil using a jembe. No one cut any trees. It is James who told them to cut the sickly bananas which DW1 cut down. 13. DW4 Daniel Irecho Chacha the 4th accused gave sworn defence and denied the charges. His defence was that on 15/8/2025 they went to the land DW1 had leased from James Maina. He was the one digging holes for planting maize while Wilson was clearing bushes. The complainant’s wife came with the police who arrested them. The land had boundary separating the land of James Maina and that of the complainant. The trees in the land in the photographs were not in the land of James Maina. It is James Maina who gave them permission to cut down the bananas. 14. DW5 James Maina Obwocha evidence was that DW1 leased land from him vide lease agreement produced as exhibit D-1. He produced a title deed for his land as exhibit-D2. He said the complainant has land near his land and they have had a boundary dispute with Joseph Matinde. 15. On 15/8/2025 he got information that the accused persons hand been arrested. He went to Isebania police station and told the investigating oficer that he is the one who leased land to DW1. He had old bananas near the school latrine which were infected and he told DW1 to cut them down. The latrine and school belong to him. The banana plants were not in the land of Joseph. 16. He produced an order as exhibit-D3 which was issued in Misc ELC NO. E008 of 2025. The surveyor visited the land and determined the boundary. He produced the land registrar’s report as exhibit-D4. He said that the land boundary dispute is the one which caused the accused persons to be arrested. The boundary was rectified and showed that the bananas were in his land. There were tree which were cut in the land of Joseph after crossing the road which is far from where the accused persons were working. The accused persons then closed their defence cases. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/365/eng@2026-07-30 3

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The Law 17. The accused persons have been charged under Section 334 of the Penal Code provides: 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; or b. a crop of hay or grass under cultivation, whether the natural or indigenous product of the soil or not, and whether standing or cut; or c. any standing trees, saplings or shrubs, whether indigenous or not, under cultivation, is guilty of a felony and is liable to imprisonment for fourteen years. Determination 18. This being a criminal case, the prosecution bore the burden of proving the case beyond any reasonable doubt. In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:“ Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the ofience charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” 19. The standard of proof was also discussed in the case Gordon Omondi Ochieng v Republic [2021eKLR which referred to the famous case of Miller v Ministry of Pensions, [1947] 2 All E R 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt: “ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to defiect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will sufice.” 20. In our instant case the issue for determination is whether the prosecution has been able to prove its case beyond any reasonable doubt. To sustain a conviction against the accused persons the prosecution was under duty to the following; a. That the bananas and acacia trees were growing in the land of the complainant. b. That the accused unlawfully cut the said bananas and trees in his land. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/365/eng@2026-07-30 4

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21. The complainant’s evidence was that the trees and bananas were in his land. He produced a title deed for parcel BUKIRA/BUHIRIMONONO/4841. The same shows that land is registered in his name. On what amounts as clear evidence of ownership of land, the court shall rely on the land Act 2012, section 26 which states: “ The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except: a. on the grounds of fraud or misrepresentation to which the person is proved to be a party; or b. where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme." 22. It is therefore it is my view that the complainant by virtue of having a tittle deed in his names it is a prima facie evidence that he is the owner of land parcel Bukira/Buhirimonono/4841. 23. However there are several cases in court challenging the exact acreage of the land. The prosecution needed to establish whether the cut down bananas and acacia trees were within the confines of the land owned by the complainant for there is evidence that DW1 leased land from DW5 who have a boundary dispute with the complainant. The investigating oficer told the court that he invited the surveyor to ascertain the boundaries who came to the land, however, the complainant refused to attend the said exercise. It was hard on him to know the truth. This means that the police were not able to tell whether the bananas and trees were in the land of the complainant. This is so given that the accused defence was that they were working in the land of DW5, who confirmed the same. This leaves the court with doubts as to whether the police finished the investigation in this matter before charging the accused persons. 24. It was incumbent upon the prosecution to tender tangible evidence by way of a surveyor’s report showing exactly where the bananas and trees were growing and on which land. However, this was not done, which leaves doubt in the prosecution case. DW5 produced the land registrar’s report as exhibitD4 which clearly shows that indeed it is the complainant who has encroached onto his land. 25. It is my considered opinion that there are doubts and gaps in the prosecution case, which means the same has not been proved beyond any reasonable doubt. In the end I find the accused persons not guilty as charged under section 334 of the Penal Code with the two counts, and hereby acquit them under section 215 of the Criminal Procedure Code. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 30TH DAY OF JULY, 2026. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kuntai………… Prosecution Counsel Mr. Mang’era/Enock………… Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/365/eng@2026-07-30 5

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Accused …………….. Present Interpretation ……… English/Kiswahili Accused Language … Kiswahili Advocate for accused persons……Ms. Okota present https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/365/eng@2026-07-30 6

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