[2005] KEHC 2503 (KLR)
The conviction for trespass under Section 3(1) of the Trespass Act, Cap. 294 cannot stand where the land in question is not private land as defined by the Act. The evidence established that the land was owned by the National Irrigation Board and governed by the Irrigation Act, not by private title. Furthermore, it...
Source-derived case information.
- Citation
- [2005] KEHC 2503 (KLR)
- Parties
- Appellant: James Maina Gachie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 3A of 2000
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction quashed; sentence set aside
- Judges
- I Lenaola
- Legal Topics
- Trespass Offences, Elements of Criminal Liability, Land Ownership Status
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Maina Gachie
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether an offence of trespass under Section 3(1) of the Trespass Act, Cap. 294 can be sustained where the land is not private land.
- 2 Whether the charge was properly framed under the relevant statutory provision.
Ratio Decidendi
The conviction for trespass under Section 3(1) of the Trespass Act, Cap. 294 cannot stand where the land in question is not private land as defined by the Act. The evidence established that the land was owned by the National Irrigation Board and governed by the Irrigation Act, not by private title. Furthermore, it was not clear that the complainant or the church was the lawful occupier. As such, the charge was improperly framed and the conviction was unlawful. The court set aside the conviction and quashed the sentence, holding that the statutory requirements for the offence of trespass were not met.
Court Disposition
appeal allowed; conviction quashed; sentence set aside
Orders
- The conviction is set aside and the sentence is quashed.
- The appellants are at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL APPEAL NO 3A OF 2000
JAMES MAINA GACHIE …………………………….….…APPELLANT
VERSUS
REPUBLIC ……………………………………………….. RESPONDENT
JUDGMENT
1. The Appeal herein raises only one issue; whether an offence of trespass contrary to S.3(1) of the Trespass Act, Cap.294 can lie where the land allegedly trespassed on, is not private land.
2. Mr. Munene for the Appellants in Criminal Appeals No’s 3A and 3B of 2000 as consolidated, argues that in the Lower Court, the Appellants were charged with the offence of trespassing “upon plot NO. TMAH – 15 of Seventh Day Adventist Church in that they were found constructing a house in that land without the authority of Pastor Johnson Wanderi”. This could not in his view be a sustainable charge under S.3(i) aforesaid as it came out in evidence that the land belonged to the National Irrigation Board and is land governed by the Irrigation Act, Cap. 347.
3. Mr. Omwega concedes the point and rightly so. In Wachira –vs- Republic (1967) E.A. 201, the Appellant was convicted of trespass upon private land contrary to S. 3(i) and (2) and S.11 of the Trespass Act, Cap. 284 in proceedings instituted by a Mr. Kiroku as “occupier” of the land. The land was actually owned by the Land Development and Settlement Board. Although Kiroku later entered into possession, the title was still in the name of the Board. It was held inter alia that“proceedings under the Trespass Act can only be brought by the police or by an “owner” or “occupier” of the land”. It was held further that “occupier” in terms of S.2 of the Trespass Act (Cap.294) means“the owner or the person lawfully in occupation of the private land” and “private land”means“land which is owned or occupied by any person by virtue of private title”.
4. Turning back to the case at hand, it is clear that the land is not private land nor was it clear whether the occupier lawfully was the Seventh Day Adventist Church or Pastor Johnson Wanderi. In any event, the charge as framed could not properly lie under S. 3 (i) of the Trespass Act.
5. It follows that the conviction was unlawful and I hereby set it aside and quash the sentence.
6. The Appellants are at liberty, if in custody, unless they are otherwise lawfully held.
Orders accordingly.
Read in Open Court this 24th day of February 2005
I. LENAOLA
JUDGE
In the presence of;
Mr. Kahiga for Mr Munene for Appellant
Mr. Omwega for Republic
I. LENAOLA
JUDGE