[2023] KEHC 24923 (KLR)

Festo v Republic (Criminal Appeal 120 of 2019) [2023] KEHC 24923 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24923 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal 120 of 2019

AC Mrima, J

November 3, 2023

Between

William Nyongesa Festo

Appellant

and

Republic

Respondent

(Appeal arising out of the conviction and sentence of Hon. Nyang’ara Osoro, (Resident Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. 1992 of 2008 delivered on 20th November, 2019)

Judgment

Introduction: 1. The Appellant herein, William Nyongesa Festo, was charged in Kitale Chief Magistrate’s Court Criminal Case No. 1992 of 2018 with the offence of creating disturbance in a manner likely to cause breach of peace contrary to Section 95(1)(b) of the Penal Code and the offence of trespass upon private land contrary to Section 5(1)(a) of the Trespass Act, Cap. 294 of the Laws of Kenya.

2. The particulars of the offence of creating disturbance in a manner likely to cause breach of peace were that on 18th April, 2018 at Liavo Settlement Scheme in Kwanza within Trans Nzoia County, jointly with another not before Court, created a disturbance in a manner likely to cause a breach of peace to Christine Margit by threatening and chasing her and her workers away from Plot No. 39 Liavo Settlement Scheme.

3. The particulars of the offence of trespass were that on 18th April, 2018 at Liavo Settlement Scheme in Kwanza within Trans Nzoia County, jointly with another not before Court, without authority or excuse trespassed into Plot of Women for Women Organization Parcel No. 39 Liavo Settlement Scheme managed by Christine Margit.

4. When the Appellant was arraigned before the trial Court, he pleaded not guilty to both counts. After a full trial, the Appellant was found guilty as charged and convicted. He was sentenced to 6 months’ imprisonment on each count. The sentences were to run concurrently.

5. Being dissatisfied with both the conviction and sentence, the Appellant preferred the instant appeal, hence this judgment.

The Appeal: 6. In a Petition of Appeal dated 27th November, 2019 the Appellant raised 10 grounds of appeal. Summed up, the grounds were mainly four and were that the trial Court disregarded that he was the only Administrator to the property in issue and thereby disregarded Section 8 of the Penal Code yet he was only carried out his legal duties, that the complainant did not have title to the property in dispute, that the complainant did not have the power to own land in Kenya and that the charges were not proved.

7. The appeal was heard by way of written submissions which were later highlighted in open Court. At the highlighting stage, Counsel briefly urged their respective positions. They all relied on case law in inviting this Court to find in their favour.

8. On sentence, the Appellant pleaded that in the event the appeals on conviction are not successful, he then be considered for a non-custodial sentence.

Analysis: 9. This being a first appeal, it’s the duty of this Court to re-consider and re-evaluate the evidence adduced before the trial Court and for this Court to reach its own independent determination in the matter. In doing so, this Court is required to take cognizance of the fact that it neither saw nor heard the witnesses testify and, therefore, give due regard in that respect.

10. As was stated in Okeno vs R [1972] EA 32: -…it is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witness. See Peter vs. Sunday Post [1958] EA 424.

11. This Court has carefully perused the grounds of appeal, the lower Court record, the parties’ submissions as well as the case law referred to.

12. The Appellant was charged with two counts in the criminal case. As stated before, they were offence of creating disturbance in a manner likely to cause breach of peaceand the offence of trespass upon private land.

13. In its judgment, the trial Court captured the parties’ cases quite well. This Court adopts such as part of this judgment by way of reference. Whereas the Court will not reproduce the evidence verbatim, it will consider it in the discussion hereunder.

14. Six witnesses testified before the trial Court. They were the complainant one Christine Margit (as PW1) who testified on her own behalf and on behalf of a Community-Based Organization known as Women for Women whom she was the Chairlady both in Kenya and in Germany. Grace Wekesa Kwanusu testified as PW4. She was the one who sold her piece of land known as Plot No. 39 Liavo Settlement Scheme to PW1. Kennedy Wanjala Maboga (PW5) witnessed the sale. Two employees of the complainant being Hellen Ikuru (PW2) and Benard Omuse (PW3) and who were in the company of PW1, also witnessed the wrath of the Appellant on the property. PW6 was the investigating officer.

15. The evidence had it that the crux of the matter was that the Community-Based Organization ran a program towards assisting single women and widows with cows. They would buy young calves from the market, take care of them and later hand over to the women.

16. To enable the organization manage the project well, it, through PW1, purchased two acres of land from PW4 which comprised of Plot No. 39 Liavo Settlement Scheme. The sale was confirmed by PW4 and PW5. The portion was fenced off and was solely used by the organization since the purchase in 2015.

17. The Appellant’s son was employed by the organization as its Treasurer. However, over time, the organization found that its monies were misappropriated and the Treasurer was asked to resign, which he did.

18. That seemed not to have settled in well with the Appellant who, on the 18th April, 2018 visited the land in issue, threatened and chased away PW1, her staff and workers and dared them not to return thereon.

19. The incident was reported to the police where PW6 commenced investigations and subsequently charged the Appellant.

20. When placed on his defence, the Appellant stated that on the material day he saw a group of people destroying the fence on the subject land and he went to find out what was happening since he was the sole Administrator of the estate in issue, only to be chased away. He then reported the matter to the Chief.

21. On consideration of the evidence and the law, the trial Court found for the prosecution.

22. The facts are not complex as well as the issues herein. From the evidence, both offences were properly proved. There is ample and well corroborated evidence of the Appellant causing disturbance on the suit property. That evidence was not overturned by the defence.

23. There was also holding evidence of ownership of the property. PW4 stated that she sold her portion of the land, which she inherited from her mother the Late Virginia Sangalo Luseno, to the organization. PW5 witnessed the sale and signed the agreement.

24. Based on the sale, the Appellant, who was one of the two Administrators of the Estate of Virginia Sangalo Luseno, attended the High Court of Kenya at Kitale in Succession Cause No. 14 of 2015 on 30th October, 2017 and confirmed the entitlement of 2 acres of the suit property to the complainant organization. A Certificate of Confirmation was duly issued by the Court. It is still current.

25. While being cross-examined in his defence before the trial Court, the Appellant confirmed the above by stating as follows: -Grace Nekesa [PW4] is my aunt child to Luseno Sangalo. I am grandchild to Luseno Sangalo, She has the right to inherit her father’s property. I am aware Grace was given purchase price. Christine [PW1] bought used it for 3 years. I did not have any objection for 3 years. Issue started when they started pulling down the fence and latrines. My problem was the demolition. I had no problems with their activities. Grace took the money (1. 2M) ……

26. But, in a surprise turn of events, the Appellant while being re-examined by his Counsel in his defence stated as under: -…. Grace is not a beneficiary in the Certificate of Confirmation. Grace received the purchase price yet she is not the beneficiary.

27. The above response by the Appellant is appalling. It revealed him as an untruthful person out to mislead the Court. Whereas the Appellant was well aware that Grace was legally entitled to the share she sold to PW1, and even after admitting as much, he then, without blinking, turns around and denies such an entitlement. What a carefree person could the Appellant be.

28. Section 2 of the Trespass Act defines ‘private land’ to mean: -(a)land which is owned or occupied by any person by virtue of a freehold title, a certificate of ownership or a lease; or(b)land in respect of which a claim to an estate in fee, or to a lease, has been made under the Land Titles Act (Cap. 282) and has not been disallowed or refused; or(c)cultivated land or enclosed land; or(d)any forest area; or(e)railway land;

29. There is evidence that the portion bought by PW1 was fenced off and had been used for 3 years before the invasion by the Appellant. The totality of the evidence affirms the position that the land in issue was private land. The invasion into private land by the Appellant was proved by way of congent and corroborated evidence. That was trespass.

30. The rest of the grounds of appeal do not hold either. There is evidence that the Appellant is well aware that the land in issue legally belonged to PW4, who was a child of the deceased in the estate he is co-administering, and that the land was lawfully sold to PW1. He is the one who confirmed as much before the succession Court. Further, the Appellant is a grandson to the deceased in the succession cause as opposed to PW4 who was a daughter.

31. Further, the contentions that PW1 and the CBO cannot hold land in Kenya are not proved. No law was cited to affirm such.

32. The above discussion does not find favour with any of the grounds of appeal fronted by the Appellant. The offences were duly proved. The Appellant was properly found guilty and convicted. As such, the appeal against the convictions are unsuccessful.

33. This Court takes very great exception to the Appellant’s conduct. PW1 is a volunteer. She has over time assisted our widows and single mothers. Those are quite vulnerable people in society. By creating disturbances and trespassing unto PW1’s private land, the Appellant intended to frustrate the efforts by PW1 to the detriment of our mothers, sisters and daughters.

34. The Appellant’s conduct can only be frowned upon by this Court. The Appellant must learn to respect other people and their property. He must also understand that there is always an orderly manner in which issues and differences are dealt with.

35. Having said as much, on sentence, the Appellant was imprisoned for 6 months on each count. Sentences were to run concurrently.

36. The Appellant had been released on bond pending the determination of his appeal. The appeal was dismissed for want of prosecution on 25th April, 2023 and the Appellant re-arrested and taken to prison to complete his term of incarceration.

37. An application seeking the reinstatement of the appeal and the bond terms was filed by the Appellant soon thereafter. This Court heard the application together with the appeal, hence, this judgement.

38. Given the passage of time since the judgment was passed before the trial Court in 2019 to date, and since the Appellant had been out on bond all along, this Court would call for a Probation Report to ascertain the relationship between the Appellant and the complainant over the period more so going by the indications made in an earlier report. The officer shall interview the witnesses in this case, if available, together with the local administration.

39. Further orders of this Court shall await the report.

Disposition: 40. In the end, the following final orders hereby issue: -a.The Appeals against both convictions are hereby dismissed.b.A Probation Officer’s Report shall be availed to enable this Court ascertain whether the sentences ought to be interfered with.c.Pending further orders of this Court, the Appellant shall remain in prison.d.This matter shall be fixed for a Mention on a date to issue.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KITALE THIS 3RD DAY OF NOVEMBER, 2023. A. C. MRIMA....................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARJudgment delivered in open Court and in the presence of: -Mr. Kisaka, Learned Counsel for the Appellant.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Respondent.