A Bungoma court has acquitted two men accused of a violent 2020 property rampage.
Senior principal magistrate Joseph Maloba ruled the prosecution failed to prove its case beyond reasonable doubt due to absent witnesses and missing evidence.
Anthony Miluni Wafula and Cornelius Morris Munyasia were cleared of six charges including housebreaking, stealing and malicious damage to property stemming from an attack at Mbwana B village on September 5, 2020.
The case against a third accused, Maurice Wafula, had been withdrawn after his death was confirmed through a burial permit.
The prosecution alleged the accused, alongside others not before court, broke into homes and destroyed property including solar panels, window panes, motorcycles, furniture and electronics.
They were charged with breaking into Victor Walela Wafula's and Enos Miluni Wafula's houses.
They also faced theft charges.
“The complainant was one Godfrey Wafula whose house they broke in before stealing his properties which comprised a panga, a jembe, a KTS radio, a USB flash disc, a mobile phone make Neon Nova and Sh3,000 in cash all valued at Sh9,100.
The prosecution did not call the investigating officer despite a court summons, nor did it present two other witnesses listed on the charge sheet.
Anthony, who testified in his own defence, denied all charges. He claimed he was at work as a barber on the day of the incident and only learned of his arrest when he visited the police station to inquire about his co-accused.
Cornelius did not testify. He absconded court before being placed on his defence case, so the trial proceeded in his absence.
The court heard the incident was rooted in a family land dispute and complainants testified the accused were relatives.
“PW3 [Silvia Wekesa Barasa] is the wife to PW1 [Victor]. She stated that the attackers came to her house armed with pangas and rungus. She explained that amongst them was accused 2 [Anthony] who is her brother-in-law,” the court heard.
“She added that after the attackers asked her where her husband was, they stormed into her house, ransacked it before they proceeded to Godfrey Wafula's house.”
However, the court noted the first complainant—Godfrey—whose house was allegedly broken into, never testified.
"The first complainant namely Godfrey Wafula never testified. Although those who testified gave evidence that his house was also affected, his absence from trial rendered his case unsubstantiated and unsustainable," the judge ruled.
"Count 1 and 2 must collapse for that reason."
The court also found significant evidentiary gaps. Photographs intended to prove property damage were marked for identification but never formally produced as exhibits, leaving the court unable to make findings on the destruction alleged.
"Several photographs, which were to be used by the prosecution to prove the damage committed against the complainants on counts 2, 3 and 4, were merely marked but eventually not produced. Therefore, this court is unable to put a firm finding on the matter."
The magistrate further questioned whether the offence of housebreaking had been properly established.
She said there was nothing on record showing the houses were locked or closed when the incident occurred. The evidence of a door being broken amounted more to malicious damage rather than housebreaking.
"The attackers came and found people at home going about their own businesses before they created the chaos that ensued thereafter. Therefore, the court finds there was no breaking of the houses in issue as contemplated under section 303 and 304 of the Penal Code."
In acquitting both men under section 215 of the Criminal Procedure Code, the magistrate stated the prosecution failed to prove guilt beyond reasonable doubt.
"Therefore, accused 2 is granted the benefit of the doubt in relation to his alibi with the consequence that, he has to be acquitted on all charges," the court ruled.
"That also means that even in his absentia, the case against accused 3 was equally not proved. This calls for his acquittal on all counts too.”
