Chuka High Court today reversed a trial court judgment convicting a middle aged man of malicious damage of property, which had sentenced him to a seven-year jail term.
The Marimanti magistrate’s court had found Gitonga Nkou, 38, guilty of damaging 25 water pipes worthy Ksh. 150 thousand on estimate, belonging to the Mukothima Parish in Tharaka Nithi County, headed by Fr. Eliud Mwenda.
Delivering the judgement, Justice Robert K. Limo said that he had identified faults in which the proceedings were carried out by the trial court that subjected the appellant to an unfair trial, hence setting him free.
He noted that the witnesses tendered were inconsistent as the evidence presented did not match their testimonies.
“The witnesses presented in this court does not match with the evidences brought forth. For instance, one of the witnesses said that he saw the accused destroy two pipes, whereas the pipe presented in this court as evidence were three” Said Justice Limo, adding that the level of damage caused could not be substantiated by the prosecution.
Among the contentious issues fronted by the appellant was the sentence that he described too harsh contravening the law which states that the maximum sentence for such an offense is 5 years. The Penal Code Act Cap 63 of the laws of Kenya states that; “Any person who willfully and unlawfully destroys or damages any property is guilty of an offense, which, unless otherwise stated, is misdemeanor, and is liable, if no other punishment is provided, to imprisonment for five years.”
In the appeal, failure of the magistrate to conduct a proper analysis of the witnesses presented was addressed.
The appellant also highlighted that the trial court disputed his request to stage the witnesses for defense, and that the magistrate failed to tour the scene of crime to assess the damage.
Addressing the issues raised by the appellant, the high court judge based the reversing of the judgement on the grounds of inconsistent testimonies and the court’s failure to tour the crime scene, noting that it was an impudent violation of the rights of the accused.