https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6637

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **CRIMINAL APPEAL NO. E011 OF 2025** ## **JENNIFER ACHOLA ANGWANG’O…..……....................... 1ST APPELLANT** ## **JULIUS OKELLO ANGWANG’O…...................................... 2ND APPELLANT** ## **JOYCE ATIENO OKELO…................................................... 3RD APPELLANT** ## **VICTOR ODHIAMBO OKELO…......................................... 4TH APPELLANT** ## **VERSUS** ## **REPUBLIC……………….………………….……….................RESPONDENT** **JUDGMENT** 1. This appeal arises from the Judgment of the trial court, Hon. S. Mutava (Resident Magistrate) in Rongo PMCRC No. E151 of 2023. 2. The Appellants were jointly charged with the offence of forcible detainer contrary to Section 91 of the Penal Code. 3. The particulars of the offence were that on 13th and 14th March 2023, at west Sakwa Awendo subcounty of Migori County, the Appellants, being the holders of title number North Sakwa/Kanyamgony/1040 without colour of right held the possession of the said land in a manner likely to cause a breach of the peace against Benard Ogalo Owiro who was entitled by law to the possession of the said land. 4. The Appellants were arraigned and denied the charges. A plea of not guilty was respectively recorded. 5. The trial court considered the case and rendered the impugned judgment. The court found the Appellants guilty and convicted them on the offence. The Appellants were also sentenced as follows: the 1st, 2nd and 3rd Appellants to serve two years’ probation and the 4th Appellant having been remanded for 3 weeks was discharged for the time served. 6. The Appellants, aggrieved, lodged this appeal. The Petition of Appeal dated 4.2.2025 raised the following material grounds: 7. *The learned trial magistrate erred in failing to properly consider the evidence.* 8. *The learned trial magistrate erred in law and fact in shifting the burden of proof to the Appellants.* Evidence 1. At trial, PW1 was Benard Ogalo Owino, the complainant. He was the proprietor of title No. North Sakwa/Kanyamgony/1040. He bought it in 1981. He had been farming on it. He produced a survey and map. The Appellants invaded his land and started farming on it. They planted maize. There was a court injunction on the property. The Appellants had taken possession and displaced him since 2023. On cross examination, he testified that he acquired the property in 1981. The title deed was in his name. He was 16 years in 1981. The trespass started in 2019. He acquired the property from Okello, the Appellants’ father. Ownership of the property had not been established. 1. PW2 was Moses Odongo. He was PW1’s nephew. The property belonged to PW1. He visited the property and found the Appellants planting on it. On cross examination, he was present on the day of the survey. PW1 did not have crops on the property. 2. PW3 was Caroline Mutai, the Land Registrar. She produced the certified copy of the green card. The proprietor of the land was Benard Okelo on 9.9.1981. Title was issued on 29.12.1999. The adjudication records proved that PW1 was the owner. On cross examination, she stated that a minor could not hold land unless by a person as trustee until the minor was of majority age. 3. PW4 was Bryton Onyango Atata. He was the Land Surveyor. He visited the land on 2.3.2023 to conduct a survey with a view to confirming the boundaries. This was prompted by request by the Assistant Chief due to disputes thereon. Trespass was confirmed. The Appellants had constructed their homes on the parcel belonging to the complainant. On cross examination, the Appellants did not sign their names to confirm attendance. He could not confirm boundaries when adjacent owners were deceased. 4. PW5 was No. 68105 Cpl. Thomas Mutua of Awendo Police Station. The complainant reported on 14.3.2023. Investigations linked the Appellants and they were arrested. The 1st to 3rd Appellants had a home on the property. On cross examination, he arrested the Appellants. He did not know the duration of occupancy of the property. If the complainant was born in 1966, he was a minor in 1981 and could not have owned the property. 5. The 1st Appellant testified on oath as DW1. It was her testimony that she had been in occupation of the property since she was married in 1978. The three other Appellants also resided in the property. They built their homes on the land and had been farming thereon. There was a land case that was yet to be resolved. The property was ancestral. On cross examination, she had placed a restriction on the title and she had not removed it. She had no title deed to the property. 6. DW2 was Julius Okelo Angwango. He had occupied the land since he was born in 1969. DW1 was his step mother. The 3rd Appellant was his wife and the 4th Appellant was his son. He lost 7 brothers who were buried on the land, they had filed a land case challenging the validity of the title held by the Respondent. 7. DW3 was Michael Abuya Onyango. He was born in 1944. The Appellants were his relatives. They had been residing on the land. PW1’s husband was buried thereon. 8. The court has noted no submissions filed. Analysis 1. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in **Pandya -vs- Republic [1957] EA 336** as follows:- **“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.** 1. Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated: **“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”** 1. To this court, in order to show that the offence complained of was indeed committed, the Respondent had the burden to establish the key ingredients of the offence. Section 91 of the Penal Code provides in part as follows: *“Any person who, being in actual possession of land without colour of right, holds possession of it, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person entitled by law to the possession of the land is guilty of the misdemeanor termed forcible detainer."* 1. From the above provisions, the ingredients of the offence of forcible detainer, which the prosecution must establish are as follows: 2. The accused person was in actual possession of land; 3. The possession of the land by the accused person was without colour of right; 4. That the accused person held possession of the land against the interest of the owner or person legally entitled to possession of the land; 5. That the accused person held possession of the land in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against the person entitled in law to the possession thereof. 6. In the case of **Charles Kiprono Biegon & 2 others v Republic** [2016] eKLR, Mumbi Ngugi J (as she then was) observed as follows: “In Murang’a Criminal Appeal No. 430 of 2013 Richard Kiptalam Biengo vs Republic, the Court observed as follows with respect to the offence of forcible detainer:'A literal reading of section 91 of the Penal Code shows that the prosecution will only prove an offence of forceful detainer against an accused person if it demonstrates that: -(a)A person has actual possession of land;(b)The person has no right over the land;(c)The act of possession is against the interests of the legal owner or the person legally entitled to the land; and(d)The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.” 1. In this case, there was need for the Respondent to adduce evidence which proved that the Appellants had no title or legal right to occupy the land. Such evidence was not provided to the court. It was not enough to produce a title document which was being challenged through a land case. Lack of a title deed did not automatically shut down any claim by the Appellants on the land they occupied. The complainant testified that no court had made an order on ownership of the property. The occupation by the Appellants granted them the equitable right to protect the property and until a court of competent jurisdiction validated the Complainant’s title, the Appellants were entitled to protect the land on which they had settled. 2. More so, the question as to whether the Appellants had no right to the suit premises was answerable not from abstract but the evidence and testimony of the parties and was not before the court. It was common position of the parties that the Appellants had occupied the suit premises while the Complainant in the lower court who claimed ownership by virtue of purchase had not settled on the suit premises but carried out farming thereon. There was an inference of a legal and equitable right and the Appellants were as such not on the suit premises by unlawful means. They were claiming an ancestral right which was a legal right and it was wrong for the trial court to abruptly conclude that they were guilty of forcible detainer. In **Albert Ouma Matiya v Republic [2012] eKLR**, Kimaru J (as he then was) held as follows: “The ingredients required to establish the charge of forcible detainer under Section 91 of the Penal Code are as follows: the prosecution must establish that the accused is in actual possession of the parcel of land which he has no right to hold possession of. The prosecution will establish this if it adduces evidence which proves that the accused has no title or legal right to occupy the land. Secondly, the accused must be in occupation of the parcel of land in a manner that is likely or causes reasonable apprehension that there will be breach of peace against the person entitled by law to the possession of the land." 1. The Appellants could therefore not rightly be described as persons lacking a colour of right over the property in dispute. There was also no evidence to show that the manner in which the Appellants possessed the impugned land was such that it led to a reasonable apprehension of breach of peace. 2. Having long settled on the land and farming thereon was not *per se* an actionable threat to peace. The Appellants were peacefully arrested while on the land they called ancestral home. They were not said to have been menacing or rowdy against the complainant. The only crime they committed was that they were in unlawful occupation by their long settlement and utility of the land. 3. This was a disputed matter that was pending before the Environment & Land Court. PW4 testified that it is the chief who prompted him to carry out the survey on the premises. PW1 did not allege breach of peace on the part of the Appellants. PW5 who arrested the Appellants testified that he arrested the Appellants on allegations of trespass. There ought to have been evidence to show that the Appellants’ possession was a threat to the peace of the complainant. On all its fours, the offence failed as charged. 4. In the circumstances the appeal against the conviction is allowed. Having found that the conviction was unfounded I set it aside. I find no utility in dealing with the issue of sentence. The Appellants are set free. Determination 1. I make the following final orders:- 2. The appeal is allowed. 3. The conviction and sentence are set aside. 4. The Appellants are set free unless otherwise lawfully incarcerated. 5. The Office of the Director of Public Prosecution, should not be used to settle land disputes, especially in circumstances where the occupation is protected as adverse possession or where the said office is used to unlawfully effect eviction. Forceful detainer can only be used to remove parties who move into a registered land, and not to protect owners who obtain title when there are legitimate possessors on the land. Such possessors are constitutionally protected as per the decision in [**Lewa v Mwagandi [2015] KECA 532 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/532/eng%402015-07-17)**.** 6. Right of appeal, 14 days. 7. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **14th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Kihara for the State Appellants absent Court Assistant – Martin