The High Court in Bungoma has ordered for sentencing of a man who was acquitted of damage to property charges by a magistrate court a year ago.
Justice Stephen Riechi ruled on March 10 that Mzee Nyongesa Wangila, a businessman at Malakisi, be produced before Sirisia Resident Magistrate for mitigation and sentencing.
Wangila was charged for malicious damage to property on September 1, 2014 at the Sirisia law courts.
The resident magistrate Caroline Wattimah acquitted Wangila together with his co-accused in 2019 for lack of evidence.
Wangila, together with his two co-accused were accused of uprooting 14 poles and 16 frames worth Sh 25, 000 which had been used to fence a parcel of land No. 1408/3 located at Malakisi town that belonged to Peter Maosa Nyang’au who is a police officer.
“The upshot of it all is that I have considered evidence adduced, I do found out that the prosecution failed to prove this case beyond reasonable doubt against the accused herein. I acquit the accused under section 215 of the Criminal Procedure Code (CPC),” Wattimah ruled.
But Nyang'au appealed against the ruling on grounds that the magistrate erred in law by acquitting the accused of wrong doing.
“The learned magistrate erred in law and by fact finding that there were glaring inconsistencies in the prosecution of the case without pointing out the inconsistencies.
"That the magistrate dismissed the case despite there being expert evidence that the property of the complainant that was destroyed was valued at Sh 28, 000,” reads the appeal in part.
The state also faulted the magistrate for dismissing the case on grounds that the disputed land was before the Environment Court, a finding he say was based on allegation by the accused which was not supported by evidence as the proceedings of the said case were never produced in court during the trial.
Riechi in his ruling dated March 10, directed that the case file be returned to Sirisia Magistrate’s court for the sentencing of the accused persons.
“From the plain reading of the provision of ingredients of the offence of malicious damage, it’s proved that the property was indeed damaged, the same was damaged willfully and unlawfully and that the accused person participated in damaging the property,” reads part of Justice Riechi’s judgement.
The judgement further reads, “This file is remitted to the trial magistrate C. Wattimah or if not at the station, the head of the station for mitigation and sentencing."
Wattimah has since left the station on promotion and she is stationed in Eldoret.
Nyang'au had bought the parcel of land from Abdulahi Hassan at a cost of Sh 400, 000.
Hassan, a property agent, sold the land on behalf of Saiwani Jiwa who is in the United States.
Wangila had also laid claim to the same parcel of land and told the court that he bought the land at a cost of Sh120, 000 in 2009.