Please Wait. Searching ...
|Case Number:||Criminal Appeal 117 of 2009|
|Parties:||James Manyoni Nyachuba v Republic|
|Date Delivered:||04 Nov 2011|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Daniel Kennedy Sultani Aganyanya, Philip Nyamu Waki, Joseph Gregory Nyamu|
|Citation:||James Manyoni Nyachuba v Republic  eKLR|
|Case History:||(Appeal from a judgment of the High Court of Kenya at Kisii (Musinga,) dated 13th March, 2010 in H.C.CR.A.NO.134 OF 2008)|
|History Docket No:||H.C.CR.A.NO.134 OF 2008|
|History Judges:||Daniel Kiio Musinga|
|Case Outcome:||Appeal dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
Following conviction, the appellant was placed on probation for two years. He filed an appeal in the High Court which was dismissed on 13th March 2009 provoking the appeal before us.
At the hearing of the appeal the appellant, who was unrepresented relied on the following grounds of appeal:
In his submissions the appellant urged the Court to delve into the issue of ownership of two parcels of land which he said did not form part of the proceedings in the two courts below.
In reply Mr Kiprop, learned State Counsel who appeared for the State submitted that the trial court had before it evidence that the land on which the trees stood was owned by the complainant Mr Zacharia Muguche Ogoro (PW1) and that the appellant did not have the complainant’s authority to cut down the trees and hence the invocation of section 334(c) of the Penal Code. To reinforce the point, the learned State Counsel submitted that the title to the parcel in question was produced in court as an exhibit. He concluded by stating that the grounds the appellant had raised in his memorandum of appeal were irrelevant.
We have on our part, carefully looked at the grounds raised by the appellant. The first one claims that what was before the trial court was a boundary dispute. With respect, it is clear to us from the proceedings that this was not the case because the charge which the appellant faced was a contravention of section 334 of the Penal Code. It follows therefore that nothing turns on this ground.
As regards the ground relating to cultivation we consider it a valid ground in law in that under the section creating the offence, the standing trees must have been under cultivation. The Concise Oxford English Dictionary states that “cultivate” includes raise or grow plants especially on a large scale. Consequently, since the blue gum trees were grown by the owner, the ingredient of cultivation was present in the circumstances.
“Include land covered with water, all things growing on land and buildings and other things permanently affixed to land.”
This then takes care of ground 2(b) above. This leaves us with ground 2(a) which states that the charge against the appellant did not disclose an offence known to law. We think the answer to this ground lies in the definition section of the offence. Section 334(c) of the Penal Code states:-
(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.”
We think the above provisions clearly reveal that the offence constituting the charge against the appellant is known to law and is within the ambit of the Constitution and therefore this ground fails as well.
In the result, the appeal is dismissed and it is so ordered.
Dated and delivered at Kisumu this 4th day of November, 2011.