[2022] KEHC 15749 (KLR)

Director of Public Prosecution v Kimaru (Criminal Appeal E072 of 2021) [2022] KEHC 15749 (KLR) (24 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15749 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E072 of 2021

MW Muigai, J

November 24, 2022

Between

Director of Public Prosecution

Appellant

and

Joseph Mwangi Kimaru

Respondent

(Being An Appeal From The Judgment Of Hon B Kasavuli, Principal Magistrate At Mavoko Law Courts In Mavoko Criminal Case No E435 Of 2021 Delivered On October 26, 2021)

Judgment

Trial Court Record 1. The accused person was charged with four counts of offences.

2. In count I he was charged with the offence of forcible detainer contrary to section 91 of the Penal Code.

3. The particulars are that on diverse dates between November 10, 2020 and June 10, 2021 in Ngelani area in Athi iver sub county within Machakos County, being in possession of a portion of LR 15XXX/20 of George Gichuki Githua without colour of right, held possession of the said land in manner likely to cause a breach of peace by carrying out mining of building against the said George Gichuki Githua who is entitled by law to possession of the said parcel of land.

4. In count II he was charged with stealing contrary to section 268 (1) as read together with section 275 of the Penal code.

5. The particulars are that on diverse dated between November 10, 2020 and June 10, 2021 at Ngelani Area in Athi River Sub county within Machakos County jointly with others not before court stole 1,873,298 pieces of machine cut building stones valued at Kshs 46,832,4500/-.

6. In count III, the accused was charged with the offence of malicious damage to property contrary to section 339 (1) of the Penal Code.

7. The particulars are that on diverse dated between November 10, 2020 and June 10, 2021 at Ngelani area in Athi River Sub County within Machakos County jointly with others not before court, willfully and unlawfully damaged a portion of land in LR No 15XXX/20 measuring 1. 48 Acre the property of George Gichuki Githua.

8. In count IV, he was charged with the offence of fraudulently dealing with mineral contrary to section 292 of the Penal Code.

9. The particulars are that on diverse dated between November 10, 2020 and June 10, 2021 at Ngelani area in Athi River Sub County within Machakos County jointly with others not before court, with intent to defraud disposed of 1,873,298 pieces of machine cut building stones valued at Kshs 46,832,450 the property of George Gichuki Githuafrom LR 15XXX/200 located at Ngelani area.

10. The accused person pleaded not guilty to all counts and the matter proceeded to trial with the prosecution calling five (5) witnesses.

Prosecution Case 11. PW1, George Gichuki Githua stated that he bought a piece of land in May 30, 2014 vide a sale agreement from the vendor who had acquired it from the deceased husband, LR 15XXX/20. He used Survey of Kenya to identify the land and the purchase price was each 5 million shillings. He stated that he paid Kshs 1 million and was allowed immediate possession. The consideration of the two pieces was 10 million and the balance was to be paid continuously since she was migrating. He opined that he had to pay some rates.

12. PW1 contended that later, he got some information that there were some people on the land mining stones. He got the phone number of Joseph Mwangi Kiwara and called him in November 2020 and he told him he was to do mining business. He agreed and took them to where he was doing it, the land and when he asked him for documents, he said he was given the land by some elders. They later met at Sobay Hotel where he served him with a letter from his lawyer showing that the land was PW1’s, he was shocked and told him that he was not going to stop because he would run into losses. He responded to the letter saying the land was his and he would not vacate. PW1 contended that he processed the title and obtained it in March 2021 then reported the case to Mlolongo Police Station on April 13, 2021 and was given OB No 59/07/04/2021. He was advised to pursue the matter with CID, he met the DCIO Mlolongo, explained his issue and recorded his witness statement.

13. It was his testimony that by December he had paid Kshs 6,000,000 and he commenced the transfer in December 2020. In the land he found it excavated. They had done some tests and there were machinery on site when he visited. PW1 testified that the accused never gave him documents for the land, that there was a Kimani who identified himself as a partner with the accused. The valuers found out what value of land had been spoilt. He contended that there was a caretaker on site and he used to visit every 7 months. He pointed out the accused in court and indicated that he had no personal differences with the accused when they went on site with valuers.

14. He produced a sale agreement, a title deed for LR 15XXX/20 issued on March 5, 2021, online official search dated May 30, 2016 before effecting the transfer, demand dated November 20, 2020, KRA payment slips for rates and clearance.

15. Upon cross-examination, he stated that he had fenced the land, the poles were removed and as at November 2020, the land was not fenced. He said his caretaker informed him some people were mining on his land. Caretaker directed them to site and he witnessed the accused operating the tractors through his staff, he was not personally driving it. He did not record the registration number of the trucks. He did not have previous records showing the accused was managing the site. He called the accused and went to the site to see land available for mining and the accused responded land belonged to him. He indicated that his lawyers asked for ownership. He did not have the title in his name in November 2020.

16. PW1 opined that he initiated the transfer in December 2020, he did not produce the transfer documents in court and it is not true transfer documents were lodged on March 5, 2021. He said he had documents to show it was earlier. He stated that he has not been requested to produce documents to show he attached identification documents on transfer application. When making reference to PEXB 5, payment of land rates in 2016, he said that the title shows as at March 5, 2016 he was the owner of the land. As regards the search, he said the original was with the advocate and it does not tell when it was produced. It shows the last transaction was in 2016 when land was transferred to Atwar.

17. PW1 stated that the accused indicated to him that he was mining L.R 12XXX/5 and LR 15XXX/20 came out of it. He was not aware that National land Commission (hereinafter referred to as “NLC”) had advertised LR 15XXX/20. According to the NLC notice, it involved 12XXX/5. He did not know if goons were from Ngelani. He stated that he was a party in a civil case against accused and there are no other members in the case. He testified that he was with police, quantity surveyor and valuers when he went on the land. He saw two beacons, others had been removed. When PW1 was shown a picture, he said they were photos of the vendor who died on January 14, 2021.

18. In re-examination, he stated that they only searched title, he bought LR 150XXX/20 and L.R 12XXX/5 was the mother title, it was subdivided. He was aware that there are people who have invaded people’s land at Ngelani, they escaped the goons who invaded them. He said the transfer was signed in December 2018. The lawyer liaised with the vendor, she signed in the presence of an advocate and he paid for stamp duty. He said the transfer documents were with his lawyer who called him when the transfer had been completed. He was not aware the vendor had died.

19. PW2, Julius Macharia Chege, a land surveyor based in Thika town. He has a BSC from Kenyatta University and also does conveyancing. He was called by PW1 to confirm his beacons, he acquired a map from Survey of Kenya for LR 15XXX/20. They did a re-conveyance survey and identified the beacons, they realized that there was some mining stone cutting around. Their work was to try and use the map to locate beacons. The map is a blue print. He prepared a beacon certificate after the exercise which he produced and a survey report. He testified that there was no much activity save for mining, the size of land was 2. 0 ha and area mined was 0/152 Ha.

20. Upon cross-examination, he said he was geomatics surveyor, a registered surveyor working under license 147. He did not have his own but works under James Sogo. He said he is a private surveyor. He asked for title number, he used two plans. He identified 2 beacons on ground. The complainant took him to where the land was and was paid Kshs 115,000 for the survey. He was aware the report was to be used in evidence and indicated he would still be paid for the day’s court attendance including transport and professional charges.

21. In re- examination he stated that he works under James Soyo and is registered by Surveyor Board but not licensed. That he was allowed to do what he did.

22. Kefa Otieno was PW3, a valuer. He stated that he does inspection and valuation which he has done for 11 years now. He confirmed that he is the one who did the report for their client, PW1. He visited the land on April 13, 2021 in the company of surveyor, police and complainant where they found miners doing the mining work. The land was about 5 ha. According to his report, the mining had affected PW1's land and neighboring land. He quantified the total loss based on various factors to with the total damage to the land, loss of income based on stones mined. He indicated that it was an estimate of the stones cut. He did not give report to surveyor. He produced the valuation report.

23. Upon cross-examination, he stated that he has worked with Paragon Valuers for the last 11 years. He stated that he is not a registered valuer and he knew it was an offence to do a valuation without a licence. When he was shown section 22(1) (a) he stated that he wished to rely on the valuation report regardless of the provisions of the law. He indicated that he was taken to the property by the complainant, he conducted a search dated April 16, 2021 and the registered owner was Atuar Sigh Birgit. He did the report regardless of the complainant not being the owner and they were paid for doing the valuation. He was also to be paid for the court attendance. It was his testimony that the miners were taking stones from the site and he has never seen nor met accused on the site. Dumping was in the ground, he also saw machinery and found Kimono on site who was in charge. He said John Njoroge did not go on site.

24. Cpl Charles Kitur, PW4, the scene of crime officer gazetted as such, attached at JKIA stated that on July 12, 2021 he received in a sealed envelope requesting him to prepare photos. He printed 25 photos which he signed. They show an established quarry machinery. He signed a certificate to that effect which he produced.

25. There was no cross-examination

26. PW5, Synet Meshack Mumo, from DCI Mlolongo recalled that on April 7, 2021 the complainant went to the office and reported that the accused had encroached upon his land in Mlolongo. They commenced their investigations with I P Juma, they proceeded to the land where they established that there was some mining taking place. They asked the workers who informed them that the owner of the quarry was the accused person. They made efforts and called the accused to the office who went and they interrogated him and asked him to produce ownership documents of the land if he had but he did not produce any. They wrote to lands Ministry who confirmed the land belonged to the complainant. The complainant also brought the sale agreement between him and Kaur.

27. He contended that during his investigations he called the surveyor who showed them the exact position and confirmed he had encroached the complainant’s land partly. He was also accompanied by a valuer who assessed the damage. He formed the opinion and charged the accused person who was arrested when he was called to the station. He indicated that he did not know him before and that there was machinery on ground during excavation and they took photos.

28. Upon cross-examination, he said the complainant made a report on April 7, 2021 and he told him to avail ownership documents. The complainant had been going to their office before they went for the site visit. He wrote to lands on April 19, 2021 and went to the site on April 13, 2021. He contended that he initiated the surveyor to be brought on board, he called a surveyor, Julius Macharia Chege, a private surveyor who was licensed to practice. He also initiated and called the valuer, he did a background check and confirmed he was registered and licensed but did not know his registration number.

29. He knew the complainant paid the surveyor and valuer and opined that he did not know the amount the private surveyor and valuer were allowed by law to do. He told the court that by April 13, 2021 when he visited the land, he had not received ownership documents. He did not record witness statements from the workers on the site. There were machinery and lorries on the ground, even excavators.

30. He stated that the Ministry of lands documents show that it was lodged on March 5, 2021 and it was transfer between Atuar Kaur and complainant herein. He indicated that he got the documents from lands, he did not investigate about the death of the seller. He confirmed that he is the one who took photos and gave them to the scene officer. He testified that the materials he found on ground were stones and the accused was not on site. He did not question Kimatu.

Trial Court Ruling 31. The trial court made its determination pegged on two issues. As to whether the complainant was the owner of the land described as LR No 15XXX, the trial court found that there was no written agreement as evidence of purchase and evidence of payment was not produced. The trial court stated that it is not enough for a party to simply rely on final ownership documents when there is doubt cast on the process of ascendancy to title. Ownership in the suit land by the complainant was seriously contested in view of the fact that the vendor is said to have died on January 14, 2021 and it is mandatory for the complainant to prove how and to whom he paid the purchase price before lodging documents for registration.

32. The trial court stated that there was doubt as to how the complainant obtained the title in March 2021 when the vendor was already dead and it is not for the court to assume or speculate how this transfer was completed in the absence of the deceased. Further, that when the complainant was referred to a public advertisement by the National Land Commission (NLC) he confirmed that LR No 15XXX/20 had been excised from LR No 12XXX/5 which land had been advertised for allocation to the local community. Therefore there was no evidence on record to prove beyond reasonable doubt that the complainant as the registered owner of LR No 15XXX/20 between at the time of commission of the alleged offences.

33. On the issue of whether PW2 and PW3 were qualified to prepare exhibit 6 and 7, the trial court found that there was no saving clause in the law that empowered them to prepare the reports. That had they been licensed and gazetted then the objections by the defence would not arise. The trial court also noted that the Republic is responsible for the choice of an expert witness in criminal cases but indicated that it found no answer to the choice of the prosecution in this case.

34. The trial court found that a prima facie case had not been established and acquitted the accused on all 4 counts under section 210 of the Criminal Procedure Code.

The Appeal 35. Dissatisfied by this ruling, the appellant filed a petition of appeal on Novemeber 8, 2021 seeking the following orders;a.Spentb.The order of the acquittal of the accused person be substituted with an order finding the accused person guilty of the offence charged.

36. The appeal is founded on the following grounds;a.The Learned Magistrate erred in law in acquitting the respondent under section 210 of theCriminal Procedure Code of the offence against the overwhelming evidence put across by the prosecutionb.The Learned Magistrate erred in law and in fact by failing to note that the evidence adduced by the prosecution witnessed was well corroborated.c.The Learned Magistrate erred in law and in fact by failing to consider the prosecution evidence in totalityd.The Learned Magistrate erred in law and in fact by considering irrelevant and extraneous factors in arriving at the decision to acquit the accused person.e.The Learned Magistrate erred in law and in fact in finding that the prosecution failed to prove the charges preferred against the accused person beyond any reasonable doubt.

37. The appeal was canvassed by way of written submissions.

The Appellant’s Submissions 38. The appellant filed submissions dated September 27, 2022 in which he contended that the elements of the offences was proved beyond reasonable doubt. As regards forcible detainer, while relying on section 91 of the Penal Code and the cases of Murang’a Criminal Appeal No . 430 of 2013 Richard Kiptalam Biengo v Republic, Busia Criminal Appeal 8 of 2021,Albert Ouma Matiya v Republic [2012] eKLR and R v Howell [1982] 1QB 416, it was submitted that the Black’s Law dictionary defines colour of right as the deliberately created false impression that title in property or goods is held by someone other than the actual owner. Further, that the prosecution established that the respondent did not own LR No 15XXX/ 20, he had actual possession of the said land, has no right over the land, the act of possession was against the interests of the legal owner and was likely to cause breach of peace of a reasonable apprehension of breach of peace. That the respondent entered LR No 15XXX/202 without any ownership documents and extracted stones from the said land.

39. As regards stealing, it was submitted that the respondent without claim of right entered into LR 15XXX/20 and extracted stones without the actual owner express permission hence the prosecution had proven this charge beyond reasonable doubt.

40. On Malicious damage, it was submitted while relying on the case of Wilson Gathungu Chuchu v Republic[2018] eKLR that the respondent went ahead without any ownership documents to destroy LR No 15XXX/20 by extracting stones from the said land willingly and unlawfully to prejudice the registered owner.

41. On the charge of fraudulently dealing with minerals in mines, it was submitted that the respondent went ahead to extract building stones from LR No 15XXX/20 and dispose off the stones with intent to defraud the registered owner of the land.

42. As regards whether PW2 and PW3 were qualified to prepare the survey’s report and valuation report, it was submitted that section 2 of the Survey Act defined a surveyor to mean a government surveyor or a licensed surveyor.

43. Section 21 (1) of the same Act provided that Every surveyor shall carry out every survey undertaken by him in such manner as will ensure that the survey accords in all respects with the provisions of this Act and any regulations made thereunder, and shall be responsible for the correctness and completeness of every survey carried out by him or under his supervision: Provided that the director may, in his discretion in the case of any particular survey, by notice in writing to the surveyor, direct that the standards of accuracy prescribed by such regulations shall be relaxed in such manner, to such extent and subject to such conditions as he shall specify in the notice.

44. Further, that section 36(1) (1) provides that no person, other than a surveyor, shall—a.survey any holding or land for the purpose of preparing any plan which is attached to, or is referred to in, any document or instrument purporting to confer, declare, transfer, limit, extinguish or otherwise deal with or affect any right, title or interest, whether vested or contingent to, in or over any holding or land, being a document or instrument which is required to be registered, or is ineffectual until registered, under any written law for the time being in force relating to the registration of transactions in or of title to land; orb.perform any survey which affects or may affect the delimitation of the boundaries, or the location of survey marks, of any holding or land registered or to be registered under any written law for the time being in force relating to the registration of land or of title to land.(2)Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding six months or to both.

45. The appellant referred to section 23(1) that provides thatThe director or any surveyor, or any person authorized in writing by the director in that behalf either generally or specially, may enter upon any land, with such assistants as may be necessary, for the purpose of—(a)making or supervising any survey or resurvey; or(b)affixing or setting up thereon or therein any survey mark; or (c) inspecting any survey mark; or(d)altering, repairing, moving or removing any survey mark; or(e)doing anything necessary for carrying out any of the aforesaid purposes; or(f)examining or inspecting the conduct of any survey

46. It was submitted that PW2 was duly licensed by the Land Surveyors Board to be an approved assistant evidenced by the letter dated March 16, 2010 and under section 23 is allowed to undertake surveys.

47. PW3 was fully authorized as section 21 (1) ( c) of the Valuers Act allows a body corporate to carry on business as valuers and the directors were involved in the preparation of the valuation report, being valid registered members. The report was signed by PW3 and John N Ikonya, registered directors of the company. The said section provides that after the expiration of six months from the commencement of this Act or such further period as the Minister may, by notice in the Gazette, allow either generally or in respect of any particular person or class of persons—a.no individual shall carry on business as a practising valuer unless he is a registered valuer;b.no partnership shall carry on business as practising valuers unless all the partners whose activities include the doing of acts by way of such practice are registered valuers;c.no body corporate shall carry on business as valuers unless the directors thereof whose duties include the preparation of valuations in respect of any type of movable or immovable property are registered valuers.

48. As regards ownership of LR No 15XXX/20, it was submitted that the trial court usurped the jurisdiction of the Environment and Land Court and it had no power whatsoever to decide whether the ownership was done appropriately. It should have examined the title document without casting aspersion on the validity of the title deed. The parcel was sold to the complainant by Awtar Kaur Birdi, the sale agreement as dated May 30, 2014 and the purchaser effected the transfer on March 5, 2021 upon payment of the requisite stamp duty fees. It was submitted that there was no illegality on the process of purchase and transfer of the property.

Respondent Submissions 49. The respondent filed submissions dated September 26, 2022 in which on the issue of establishment of a prima facie case, while relying on the definition of a prima facie case in the case of Ramanlal Trambaklal Bhatt v Republic (1957 ) EA 332 AND Republic v Julius Njoroge Kamau (2019) eKLR it was submitted that the appellant failed to satisfy two crucial elements to a charge of forcible detainer namely that the accused person had actual possession of the land and that the complainant was entitled to the land. This point further buttressed by placing reliance on the cases on Richard Kiptalam Biengo v Republic (2015) eKLR and Albert Ouma Matiya v Republic [2012] eKLR.

50. On stealing, while relying on the case of Victor Mwai & Another v Republic [2017] eKLR, the respondent submitted that PW1 reiterated that he was informed by an unnamed third party that someone was mining stones on his property and that he conducted his investigations after which he concluded that the respondent was responsible. That he did not see the respondent carrying stones from the land but believed he was responsible. He also failed to verify ownership of the vehicles that were on the premises and therefore there was nothing to tie the respondent to the activities on the land. PW5 testified that he preferred the charge of stealing against the respondent based on the report prepared by PW3 which was premised on assumptions and approximate figures that had been imagined when he visited the land on April 14, 2021. It was also submitted that the apellant failed to produce any evidence of building stones that had been alleged to be stolen nor did he identify any other goods that were in the respondent’s custody. Reliance was placed on the case of James Onkoba Nyabando & Another v Republic [2014].

51. While relying on the case of Maina Thiongo v Republic (2017), it was submitted that PW3 fell under the category of an expert witness but according to his evidence, he was unqualified as a professional valuer and as such his opinion and evidence failed to satisfy that he was specially skilled in his science of art. In addition, that preparing the report violated section 21(2) of the Valuer’s Act thus rendering the document entirely inadmissible in court and since he was paid to prepare the report and was still paying him to testify therefore his opinion was biased.

52. On malicious damage to property, the respondent relied on the case of Wilson Gathungu Chuchu v Republic [2018] eKLR, Simon Kiama Ndiangui v Republic [2017] eKLR and Kahuhu Wang’ang’a v Republic [2002] eKLR and submitted that PW1 did not directly witness the respondent on the subject property but concluded that the respondent was responsible based on information provided by unnamed third parties. It was submitted that PW5 witnessed unnamed persons carrying away stones from the land and loading them into waiting trucks and it was his testimony that the respondent was not present on the land.

53. On count 4, it was submitted that the elements of the subject offence are removal and disposal of ore, metal or mineral from a mine and the intention to defraud any person. It was submitted that a mineral is defined by the Mining Act and the first schedule of the Act outlines fifty known construction and industrial minerals whose extraction and disposal are controlled by the Act and machine cut building stones is not one of them.

54. Secondly that the appellant did not call any witnesses who saw the respondent remove and dispose any mineral from a mine and also failed to produce any individual/person whom he intended to defraud not was there evidence to indicate that the respondent had ever operated a mine. The court was thus urged to find that the appeal had no merit and dismiss it.

Determination 55. I have relooked and analyzed the appeal, the trial court record and considered the submissions of the parties.

56. This being a first appeal, this court is guided by the principles set out by the Court of Appeal in the case of David Njuguna Wairimu v Republic [2010] eKLR where it stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

57. In criminal cases, it is old hat that the standard of proof is beyond reasonable doubt. This was elaborated in the case Elizabeth Waithiegeni Gatimu v Republic[2015] eKLR where the court observed as hereunder:“To my mind the rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into account the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty…Having considered the circumstances of this case, the prosecution evidence and the defence offered by the appellant, I am not persuaded that the conviction was justifiable and that this is a case where the accused ought to have been given the benefit of doubt. To give an accused person the benefit of doubt in a criminal case, it is not necessary that there should be many circumstances creating the doubt(s). A single circumstance creating reasonable doubt in a prudent mind about the guilt of an accused is sufficient. The accused is entitled to the benefit of doubt not a matter of grace and the most favorite child of the law and every benefit of doubt goes to him regardless of the fact whether he has taken such a plea. Reasonable doubt is not mere possible doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence leaves the mind of the court in that condition that it cannot say it feels an abiding conviction to a moral certainty of the truth of the charge.”

58. Section 348A of the Criminal Procedure Code provides for the right of appeal against acquittal, order of refusal or order of dismissal that:(1)(1) When an accused person has been acquitted on a trial held by a subordinate court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court, the Attorney-General may appeal to the High Court from the acquittal or order on a matter of law.(2)If the appeal under subsection (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.”

59. Section 354(3) of the Criminal Procedure code provides as follows;(b)in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High court thereon to the subordinate court for determination, whether by way of rehearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as High Court may think fit;(c)in an appeal from an acquittal, an appeal from an order refusing to admit a complaint or formal charge or an appeal from an order dismissing a charge, hear and determine the matter of law and thereupon reverse, affirm or vary the determination of the subordinate court, or remit the matter with the opinion of the High Court thereon to the subordinate court for determination, whether by way of rehearing or otherwise, with such directions as the High Court may think necessary, and make such other order in relation to the matter, including an order as to costs, as the High Court may think fit;

60. In interpreting this section, the Court of Appeal in the case of Paul Mwangi Maina v Republic[2001] eKLR stated as follows;The appeal can only be on a matter of law. What constitutes a matter of law, must, of course, depend on the circumstances of each case. In Shabudin Merali And Another v//// Uganda [1963] EA 647, the question of law involved was:-"............. whether the decision of the magistrate that no prima facie case had been made out was one at which a reasonable court properly directing itself, could arrive. "In Republic v Kidasa[1973] EA 368 Trevelyan and Hancox, JJ, as they then were, dealt with the point that:-“........... In the instant case not only did the trial magistrate make no proper or sufficient finding on the facts, but he came to a conclusion on prefixes to which no reasonable court, properly directing itself could, on the evidence, possibly have come. He clearly erred in law and thereby precluded himself from giving any or any adequate consideration of the rest of the evidence. In other words, having administered to himself of erroneous direction of law, he was prevented from coming to a proper conclusion on the facts. "In R v Philletous Mallo[1958] EA 11, the question of law was that:-“the judgment does not deal at all with the question whether accused received the money as alleged by the prosecution. I think that was a substantial error of law, and on that ground alone the appeal must be allowed ........... "In Patel v Republic[1968] EA 97, the question of law was, once again,".... whether the decision of the magistrate that no prima facie case has been made out was one at which a reasonable court, properly directing itself, could arrive. "And lastly in Republic v Wachira[1975] EA, 262 Trevelyan & Hancox, JJ. Once again said:-"An appeal under section 348A of the Criminal Procedure Code, by the Attorney General, only lies on a matter of law. However it has been settled for many years that the sufficiency or otherwise of the evidence at the close of the prosecution case, so as to require an accused to make his defence, is a matter of law...... "

61. For a court to find that the accused person has a case to answer, the court ought to be satisfied that the ingredients of a specific offence have been satisfied to a certain extent. In this case, the accused person is charged with four offences.

62. Section 91 of the Penal Code provides for forcible detainers, it states 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 misdemeanour termed forcible detainer.

63. In Busia Criminal Appeal 8 of 2012- Albert Ouma Matiya vs Republic, Kimaru J observed as follows with regard to the elements of the offence of forcible detainer:“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.”

64. Possession according to the Black’s law dictionary, 2ndEditionis defined as“To occupy in person; to have in one’s actual and physical control; to have the exclusive detention and control of; also to own or be entitled to”

65. In this case, the complainant alleged to have seen the accused person on the subject property giving instructions. According to the sale agreement and the title deed, the owner of LR NO 15XXX/20, the subject property, is George Gichuki Githua. The transfer to the complainant was done on March 5, 2021. The time frame in the charge sheet is November 10, 2020 to June 10, 2020. According to the sale agreement, the transferee Awtar Kaur Birdi transferred all this right title and interest in the said parcel to George Gichuki Githua.

66. By the evidence on record, it would only be fair if the accused person were to be given a chance to explain what he was doing on the property of the complainant. In that case, I find that the respondent has a case to answer since he is not an owner of the property but was seen on the property by the complainant. He also needs to explain the import of the letter dated November 19, 2020.

67. The second offence is stealing, section 268 (1) and 275 of the Penal Code provide as follows;268. Definition of stealing(1)A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.275. General punishment for theft any person who steals anything capable of being stolen is guilty of the felony termed theft and is liable, unless owing to the circumstances of the theft or the nature of the thing stolen some other punishments provided, to imprisonment for three years.

68. The respondent claims that he is the owner of the property that he is the owner of all the area he is excavating. According to PW1 they met with the respondent and he took him to his land and when he served the respondent with a demand letter, he was shocked and stated that he was not going to stop because they would run into losses that the land was his and he would not vacate.

69. The respondent needs to be given a chance to give his side of the story because prima facie, the land belongs to the complainant and if it is this land that he is excavating, then the issue of stealing will arise.

70. Malicious damage is provided for under section 339 (1) of the Penal Code that provides as follows;Malicious injuries to property(1)Any person who willfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and is liable, if no other punishment is provided, to imprisonment for five years

71. The offence of fraudulently dealing with mineral contrary to section 292 of the Penal Code provides as follows;Any person who takes, conceals or otherwise disposes of any ore or any metal or mineral in or about a mine, with intent to defraud any person, is guilty of a felony and is liable to imprisonment for five years.

72. The respondent avers that machine cut building stones is not one of them is not a mineral as defined by the Mining Act and the first schedule of the Act. The complainant contends that he found that land was being excavated. A mine is defined in section 2 of the mining Act as;(a)when used as a noun, includes an excavation or system of excavations made for the purpose of, or in connection with, the extraction of minerals or mineral products, and includes an open-cast pit, quarry and any area where a mineral is won by dredging brine pumping, evaporation or other means; and(b)when used as a verb, means the carrying out of a mining operation and includes tailing;

73. Going by the photographs printed by PW4 and the testimony of PW1 and PW5 as well as the testimony of PW2 and PW3 as eye witnesses, there was excavation on the land. There is need for an explanation of this as well.

74. In the end, from the evidence, there is a prima facie case before the court and there is need, in line with the right to fair hearing to allow the respondent to be given a chance to explain all this misgivings, if any.

75. As regards the reports on record, section 21 provides that unregistered persons not to practice as valuers(1)After the expiration of six months from the commencement of this Act or such further period as the Minister may, by notice in the Gazette, allow either generally or in respect of any particular person or class of persons(a)no individual shall carry on business as a practising valuer unless he is a registered valuer;(b)no partnership shall carry on business as practising valuers unless all the partners whose activities include the doing of acts by way of such practice are registered valuers;(c)no body corporate shall carry on business as valuers unless the directors thereof whose duties include the preparation of valuations in respect of any type of movable or immovable property are registered valuer

76. The appellants contend that the valuation report is signed by a registered valuer John Ikonya and the valuers are a body corporate but no evidence has been provided to show that Paragon Property Valuers Ltd is registered as such. I only wonder why the said valuer was not called as a witness instead of PW3 who admitted he was not qualified.

77. On the surveyors report, the Survey Act under section 2 defines a “licensed surveyor” as a surveyor duly licensed as a surveyor under or by virtue of the provisions of this Act but shall not include a government surveyor and a surveyor” is defined as a government surveyor or a licensed surveyor. PW2 confirmed that he was not licensed. Again the same issue arises, was Geo Plan Kenya Limited a registered company as no evidence was presented before the Court.

78. The appellant has attached a letter in its submissions that was not presented in evidence before the trial court. I find that that cannot be relied upon by this court in making its finding.

79. This court therefore finds that count II and count 1V would not stand as they are premised on these reports that cannot be relied upon.

80. This court directs as follows;a.The respondent will have a case to answer before the trial court in any other court other than the one that before Hon B Kasavuli for count I and III.b.The respondent stands acquitted of count II and IV.

DATED, DELIVERED & SIGNED AT MACHAKOS THIS 24TH DAY OF NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:MR. MWONGERA - FOR THE APPELLANTMR. NDERITU- FOR THE RESPONDENTGEOFFREY/PATRICK - COURT ASSISTANT(S)