[2010] KEHC 1105 (KLR)
The court found that the appellant had no legal right or color of right to the disputed property. Despite entering into a sales agreement with Bernard Mate, the seller had no ownership over the land and could not confer valid title. The appellant's continued possession after being notified of his lack of entitlement...
Source-derived case information.
- Citation
- [2010] KEHC 1105 (KLR)
- Parties
- Appellant: Tom Madanga Hamisi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 93 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; conviction and sentence upheld
- Legal Topics
- Forcible Detainer, Possession Without Color of Right, Land Disputes, Criminal Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tom Madanga Hamisi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was lawfully in possession of the disputed land or was a forcible detainer.
- 2 Whether the conviction for forcible detainer was proper in law.
- 3 Whether the sentence imposed was excessive or unlawful.
Ratio Decidendi
The court found that the appellant had no legal right or color of right to the disputed property. Despite entering into a sales agreement with Bernard Mate, the seller had no ownership over the land and could not confer valid title. The appellant's continued possession after being notified of his lack of entitlement was likely to cause a breach of the peace, thus constituting the offence of forcible detainer under Section 91 of the Penal Code. The court further held that the sentence imposed—a fine of Kshs 10,000 or six months imprisonment in default—was within the discretion of the trial magistrate for a misdemeanor and was not excessive. The appeal was therefore dismissed, and both the...
Court Disposition
appeal dismissed; conviction and sentence upheld
Orders
- The appeal is dismissed.
- The conviction and sentence of the lower court are upheld.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Criminal Appeal 93 of 2007
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CRIMINAL APPEAL NO. 93 OF 2007
MADANGA HAMISI…………………………….APPEALLANT
=VERSUS=
REPUBLIC……………………………………….RESPONDENT
(An Appeal from the conviction and sentence of B.N. Mosiria Esq. Resident Magistrate at Eldoret delivered on 19th October 2007 in CM.CR. CASE NO. 5553 OF 2003)
JUDGMENT
I.Introduction
1. This Appeal on Criminal Law is being
determined under Section 354(2) of the
Criminal procedure Code.
“The Court “May” write to the Appeallant
or his Advocate to reply upon any matters
of law or fact raised by the Respondent or
his Advocate in his address”.
2. It is therefore not compulsory for an Appeallant or their Advocate to be present in Court save if the Court invites them to attend.
3. The Appeallant, herein having been looked for in prison, has not appeared.The probability is that he may have served and completed his sentence and or paid the fine.
4. Tom Madaga Hamisi was charged with the offence of Forcible Detainer.
Contrary to Section 91 of the Penal Code.
The Particulars of offence being
That on 5th July 2003 at Chagale plot Uasin Gishu District within the Rift Valley Province being in possession of 1/16 acreage of (Land) (belonging to Khadija Yusuf this without color of right held possession of the said land in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace against Khadija Yusuf who was entitled by law to the possession of the said land.
5. Plea of not guilty was entered.
II.Facts6. The Complainant bought two parcels of
land.This she did at a purchase price of Kshs.15,000/= from a Self Help Group.Unfortunately she found a stranger on the land a plot, where by construction was taking place.After the administration had in fact investigated the matter it transpired one Benard Mate claim the land was his.He was not able to prove ownership.A defense witness came to say the District Officer gave the said Bernard Mate the land.
7. When the Original Self Help Group and owner of the land came to Court, they were surprised to find the Apeallant and not Bernard Mate in Court.
8. In his defence the Appeallant claimed to
be a purchase of land for value.The said Appeallant denied the offence.He was nonetheless fined Kshs.10,000/= in default 6 months imprisonment.
ing dissatisfied with the conviction and sentence, he appealed to this High Court on 31st October 2007.
III.Appeal
10. That he was a purchase for value.The trial Magistrate erred in convicting him.
11. That the sentence of Kshs10,000/= in default 6 months imprisonment was excessive.
12. The Appeal be accordingly allowed.
IV.Opinion
13. The Appeallant had no right or color on
the said property.By being on it, it was likely to cause a breach of the peace.
14. Though entered into a sales agreement
with one Bernard Mate, that said seller held no ownership over the said land.The 500 years old maxim “Buyer Beware” applied to the Appeallant.
15. On being notified he was unlawfully on the property, he should have immediately left the property and sued the Seller in damages.By holding onto the possession of land he indeed became a forcible detainer.
16. I reject the arguments on theappeal.
17. As to the Sentence, hereby hold that the offence is a misdemeanor.This means a trial Magistrate is permitted to impose a fine which was accordingly done.The fine is not excessive one.The findings on conviction and sentence is accordingly upheld.
18. This Appeal is dismissed.
Dated this 6th day of July 2010 at Eldoret
M.A. ANG’AWA
JUDGE
Advocate:
(i)V.I. Kabaka , State Counsel, holding brief forA.O. Oluoch,
Senior Deputy Prosecution Counsel instructed by the office of the Attorney General for the State-Present
(ii)Tom Madanga Hamisi (Appeallant in Person)-Present