Reprieve for Wajir men jailed for destroying Sh1.4 million crops in land dispute

Two men from Wajir, sentenced to five years in prison for destroying crops worth Sh1.4 million on disputed land, have been granted reprieve after the High Court released them on bail and bond pending their appeal.

Bishara Osman and Abdi Haji were charged with malicious damage to crops under Section 324 of the Penal Code. The charges stated that on December 14, 2023, in Khumbi Location, Wajir County, they destroyed cultivated crops belonging to Amina Hillow, valued at Sh1,414,500.

Additionally, they were charged with theft, contrary to Section 268(1) as read with Section 275 of the Penal Code, for stealing a generator valued at Sh60,000, also the property of Amina Hillow, on the same day. They were convicted on both counts.

Justice John Onyiego of the high court in Garissa, however, granted them a cash bail of Sh200,000 and an alternative bond of Sh500,000 each after they filed their appeal.

The two men argued before the High Court that they would have served a significant portion of their sentence for theft if they were to remain in prison while awaiting the appeal hearings, which could take at least five months.

In their appeal, they contended that they are suitable candidates for release on bail and bond, asserting they are not flight risks. They also argued that their appeal had a strong chance of success, as their conviction was based on a "defective charge sheet."

Bishara and Abdi said that Amina Hillow, the plaintiff, did not prove she owned the land, and none of the two—Bishara and Abdi was found with the generator in question.

"They also argued that ownership of the plot where the crops were destroyed was not established and that the charge was defective. It is true the shamba in question is in dispute between the complainant and the applicants," stated Justice Onyiego.

"The ownership of the allegedly destroyed crops is also disputed. These are critical issues that will require critical evaluation on appeal, thus making the appeal arguable. However, it will be prejudicial for this court to deal with the merits of the case at this stage."

Part of what Bishara and Abdi are seeking in the high court is a revision of the sentences, especially given that the lower court did not specify whether the sentences run concurrently or consecutively.

Justice Onyiego said assuming the appellants were to continue serving their sentence, they will be entitled to remission.

In that case, Bishara and Abdi will be expected to serve eight months in respect of the offence of stealing.

Having been sentenced on August 24, Bishara and Abdi are already in their second month.

Justice Onyiego said that although the appeal has been admitted, the earliest it may be heard is December 2024, and judgement can then be expected by the end of January 2025 considering the element of December vacation.

"All things remaining constant, by the time the judgement is delivered, the applicants would have served over five months out of the possible eight months," stated Onyiego.

"Assuming that the appeal succeeds, they would have substantially served the sentence in respect of the offence of stealing. To that extent, the applicants have established that there is a possibility of serving substantially part of the sentence in respect to that offence. Even on that ground alone, the applicants have met the grounds for release on bail pending appeal.