KINYAMU THAMBO vs REPUBLIC [2003] KEHC 53 (KLR)
- Citation
- [2003] KEHC 53 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- EN Juma
- Case number
- ? 23 of 2002
- Language
- English
More details
- Court
- High Court
- Panel
- EN Juma
- Case number
- ? 23 of 2002
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant had no lawful reason to remain on the complainant's land after the tribunal declared the complainant the lawful owner and the appellant failed to appeal or object within the prescribed period. The evidence established that the appellant's continued possession was without colour of right and likely to cause a breach of peace, satisfying the elements of forcible detainer under Section 91 of the Penal Code. The conviction was therefore proper. However, the sentence of two years imprisonment was not appropriate as it was below three years and should have been substituted with community service. The court set aside the custodial sentence and ordered the appellant's release, substituting the sentence with the term already served.
Court disposition
appeal dismissed; sentence varied
Orders
- The appeal against conviction is dismissed.
- The sentence of two years imprisonment is set aside and substituted with the term already served.
- The appellant is to be released forthwith unless otherwise lawfully held.
02
Material facts
Parties
Kinyamu Thambo
AppellantRepublic
Respondent03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the appellant was unlawfully in possession of land belonging to the complainant.
- 02
Whether the conviction for forcible detainer was proper based on the evidence adduced.
- 03
Whether the sentence imposed was appropriate under the law.
Party arguments
- Applicant
- The appellant contended that he had a right to remain on the land, having received it from a relative, and challenged the complainant's entitlement and the process by which ownership was determined.
- Respondent
- The respondent argued that the complainant was the registered owner, the appellant had no lawful claim, and the tribunal process had confirmed the complainant's title, with the appellant failing to appeal or object within the stipulated period.
05
Court’s reasoning
Legal principles
- 01
Section 91 of the Penal Code
Forcible detainer is committed when a person, without colour of right, retains possession of land in a manner likely to cause a breach of peace against the person entitled to possession.
- 02
Land adjudication and registration statutes; tribunal decision referenced in evidence
A person declared as lawful owner by a tribunal and registered as such is entitled to exclusive possession unless a valid appeal or objection is lodged.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant had no lawful reason to remain on the complainant's land after the tribunal declared the complainant the lawful owner and the appellant failed to appeal or object within the prescribed period. The evidence established that the appellant's continued possession was without colour of right and likely to cause a breach of peace, satisfying the elements of forcible detainer under Section 91 of the Penal Code. The conviction was therefore proper. However, the sentence of two years imprisonment was not appropriate as it was below three years and should have been substituted with community service. The court set aside the custodial sentence and ordered the appellant's release, substituting the sentence with the term already served.
Obiter and limits
- Sentences below three years for such offences should be considered for community service rather than imprisonment.
Court disposition
appeal dismissed; sentence varied
- The appeal against conviction is dismissed.
- The sentence of two years imprisonment is set aside and substituted with the term already served.
- The appellant is to be released forthwith unless otherwise lawfully held.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 23 OF 2002
KINYAMU THAMBO ……………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………... RESPONDENT
JUDGMENT
The Appellant KINYAMU THAMBO was charged with the offence of forcible detainer contrary to Section 91 of the Penal Code in that on the 24th day of June 2001 at Kerereni village Iruma sub-location in Mera locaation in Meru District being in possession of Kiera/East Magutuni/245 of Mwamba Chabari without colour of right, held possession of the said land in a manner likely to cause a breach of peace or reasonable apprehension of a breach of the peace against Mwamba Chabari who was entitled by the law to be sole possesser.
It was the prosecution’s case that the Complainant was the registered owner of a piece of land known as KIERA/EAST MAGUTU/245. He bought this land from the one Mbuiki Thura a relative of the Appellant. The matter was dealt with by the Adjudication Officer, the D.O.and finally the tribunal. Mbuiki Thura also testified as PW 3 and stated that the Appellant was his nephew and he gave him 2 acres of land after the tribunal had declared that the Complainant was the lawful owner of the said land. He had been given 30 days to appeal or to object but the Appellant took no action.
I have evaluated the evidence adduced before the lower court and the defence of the Appellant and I am satisfied that the Appellant was properly convicted. He had no lawful reason to remain on the Complainant’s land. I therefore dismiss this appeal. As regards sentence the Appellant was sentenced to serve two years imprisonment, this being below three years he should have been sentenced to Community Service. I therefore set aside the sentence and substitute the same with the term already served. The Appellant to be released forthwith unless otherwise lawfully held.
Dated this day of 2003.
J.V.O. JUMA
JUDGE
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