https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12884

**** **REPUBLIC OF KENYA** **HIGH COURT AT NAIROBI** **CRIMINAL DIVISION-MILIMANI** **CRIMINAL APPEAL NO E.318 OF 2023** **NGUGI MWANGI -VS- REPUBLIC** **JUDGMENT** 1. The accused was charged with **Conspiracy to Defraud contrary to Section 317 of the Penal Code** , the particulars of the charge are that: On diverse dates between 2012 and 2021 at Kantafu location in Matungulu sublocation within Machakos County jointly with others not before court conspired to defraud the estate of the late Charles Mwangi Hinga two plots No 4 and 5 plots No DONYO SABUK KOMAROCK BLOCK 1/7794 measuring approximately 41x 118 feet valued at 2000000 two million shillings only by falsely claiming that he had bought it from Selina Kalekye a fact he knew to be false. **Count 2** :*Forcible detainer contrary to* ***Section 91*** *as read with* ***Section 36*** *of the Penal Code.* *On diverse dates between 2012 and 2021 at Kantafu location Matungulu sub location within Machakos County the accused was found in possession of plot No 4 and 5 Land Parcel No* ***DONYO SABUK KOMAROCK BLOCK 1/7794*** *measuring approximately 41x 118 feet valued at 2000000 two million shillings without any colour of right held possession of the said parcel in a manner likely to cause a breach of peace of Joyce Nyambura Gachangi who is entitled by law to be in possession of the said parcel of land.* 1. The Accused was convicted on Count 2 and was sentenced to serve 1 year probation sentence. **THE APPEAL** 1. Aggrieved, the Accused preferred his appeal vide the **PETITION OF APPEAL** filed on 29/11/2023 **on GROUNDS THAT ;** 2. The Learned Magistrate erred in law and fact and misdirected herself 3. In failing to consider the discrepancies and contradictions in the prosecution’s evidence. 4. In failing to consider the Appellant’s evidence. 5. By holding that the prosecution proved the case of forcible detainer. 6. By considering that the prosecution evidence was credible and placing reliance on it. 7. Failing to consider that the accused had a valid contract for sale for designated **plot No 4** and exchange agreement of *plot No 47* with ***plot No 5 in*** LR ***No DONYO SABUK KOMAROCK BLOCK 1/7794*** which facts were not controverted 8. That the court failed to consider that the agreement was confirmed to be valid by the purported co- conspirator and that the accused was acquitted on Count 1. 9. The court failed to consider that the agreement and the exchange agreement was prepared by the purported co-conspirator and her husband. 10. The court failed to consider the ingredients of the offence of forcible detainer 11. By holding that the ballot produced by the complainant was proof of ownership of title designated **Plot No 4 and 5** in LR ***No DONYO SABUK KOMAROCK BLOCK 1/7794*** 12. By holding that the accused was not a *bonafide* purchaser for value and that he had no color of right to be in possession of designated Plot No 4 and 5. 13. Holding that the Appellant was in possession of the designate Plot No 4 and 5 in a manner likely to cause breach of peace or reasonable apprehension of a breach pf peace against a person entitled by law to the possession of the land. 14. That the court relied on its opinion to fill the gaps in the prosecution case 15. That the court mispresented the evidence given as official documents of record veracity of ownership motive and intention of the complainant and the prosecution witnesses. 16. That the court failed to consider the contradictory testimony and evidence on interference with official records of the registered owner of the mother title and the balloting records and outcomes of existing orders of civil court decisions with regard to the subject mother title. **JUDGMENT OF THE COURT** 1. The Court found that the co accused were not before court and that conspiracy was not proved. That the deceased and the accused were bonafide members of Mwanzo Self Help group. The deceased balloted for Plot No 4 and 5 which was confirmed during cross examination in the defense case. 2. That the Accused alleged that he bought the land from Selina Kalekye but there was no evidence that the person was a member of the Self Help Group .The accused also stated in defense that he went to Pw5 to confirm that the Plot No. 4 belonged to Selina Kalekye . That this was not posed to Pw5 during cross examination, Pw5 also said he did not transact with D.K Nganga in respect with Plots No 4 and 5.The accused did not have any right over the land. 3. Lastly that the accused admitted being in actual possession of the suit property. 4. On sentence, the accused mitigation was considered when he prayed for leniency and a non-custodial sentence, He was a first offender and he was remorseful as indicated in the presentence report. **THE EVIDENCE AT THE TRIAL** 1. Pw1 Joyce Nyambura Gachangi, a business lady and that she makes dresses. That the late Charles Mwangi Timothy is her husband and that he was a member of Mwanzo Self Help group which bought land in Kantafu Komarock, plots Her husband bought Plot No 4&5. She could not remember when the plots were bought but her husband died on 23/2/2002. 2. The Accused was an official of the Self-Help group and they were also in the same estate. Her husband gave her documents to keep, 3 months after his death, she went to the Self Help group former office at Jogoo Road and she found Benson Mwangi the former chairman, Patrick Mururi Kagundu who was the secretary and the Treasurer who was the late Christopher Waweru. 3. The Secretary and the Treasurer gave her the allotment letter at the office. She was told that her husband had contributed for 2 Plots. She was told later that there were new officials of the Self- Help Group. That the Accused was the Treasurer and Maina was the new Chairman. That she knew the new officials and she also attended meetings they called. 4. That the Accused told her that her husband’s Plots had been sold, he did not tell her who had bought the plots. She decided to fence so that the new buyer could come out, she went with her son and fenced the plots. 5. That the next day the neighbor called and said that the Accused had demolished the fence. She reported the issue to KBC police station and she and the accused were summoned by the OCS. She presented her documents before the OCS and asked the accused to present his but he did not have them. That the accused argued with the OCS and she was advised to sue the accused. She reported the matter at the Land Fraud Unit where she met Mr Komesha who handed her to Kareithi where she recorded her statement. That James Mwongera took over the case after the officer was transferred. 6. That the Accused had put up a structures for chicken and a toilet, he had fenced Plot No 4. That plot No 5 was not fenced but it had sand. 7. She said during cross examination that her husband was a member of the group , he told her that they had started a group but she could not remember the time it was started .He told her it was a land buying company . That her husband was still contributing in 1998. That she knew Benson Mwangi who is the chairman, Patrick Muturi Ndiangui,Stephen Mureithi and Nderitu Manjugi who were part of the people who started the group.That the accused was present when the group was started.That she met the initial officials when she went to follow up on the plots after her husband died. That the accused and Maina Kanyumbi Muchoki were the current officials. 8. That she did not know of any dealings between her husband and the officials or any other plot that he had. That her husband was given the ballots although she did not know when balloting was done. That the OCS said she should sue the accused because he did not have documents but he was claiming the plots . 9. **PW2 Benson Mwangi Kibia** stated that he was one of the founding members of the Self -Help group which was formed in 1996. That elections were held after 2 years and he was the Vice Chairman, then he was elected as the chairman, a position he held for 14 years between 1998 and 2023.That Charles Mwangi was also a member and the group account signatory. That the group held land at Kantutu near KBC in Komarock, that it started with 79 members and reduced to 52 active members. That Charles Mwangi Hinga owned plots 4&5, he was not aware of any sale. 10. The accused was a member of the group, he did not have any position when he was the chairman but was the Treasurer at the time. That he was in occupation of plot No 4 but he did not know whether the plot in question was his. That the accused has his plot where he has constructed a home and Plot No. 4 and 5 belonged to Charles Mwangi Hinga. 11. He stated during cross examination that he knew the number of members because he was the chairman. That there was a record when members were recruited in 1996 during elections. That the numbers decreased. The deceased had balloted for 3 plots but he failed to pay for them. He paid for 2 plots. That anyone who had Ksh 13,500/= qualified for a plot in the year 2000. 12. That they decided to but land in 1996 and they finally did not. In 1998 they did and 30 members qualified for a plot as per their contributions. That plots were allocated and the Final List was submitted. That they balloted using another list, the ballot list had names of members who had not completed payment. The deceased balloted for No 4 and 5 on 13/8/2000.Penina Wangui had signed for No 4 but she did not complete payment. The deceased paid Ksh 27,000/= and there are records of payment . There was also an understanding that those who paid Ksh 8000 were allowed to ballot. 13. That he was not notified of sale of the deceased plot, the mechanism of notifying the office was through an official notification. He also said that he had never sold his plot, that Plot 52 belongs to him but someone else is in occupation. 14. **PW3 Josphat Duncan Ngunjiri** was the Secretary of the Self Help group between June 1996 and 29/10/1998 That they were 100 members and they would meet every Wednesday and agreed to contribute 100ksh.In mid- 1997 they agreed to buy property with the savings, they settled on land which they bought from a person called Mboya . 15. The land is in Kangundo road next to KBC booster, they bought 10 acres, 1 acre was Ksh 58,000/= and they paid Ksh 580,000/= in installments. They subdivided it to 52 plots 50 x 100 acres. That the survey was done and placed beacons. That on 29/10/1998 they held a meeting and members became rowdy, they wanted an election. That Francis Maina was the chairman and he was taking Minutes. That they were voted out and the people elected were:- 1. Benson Mwangi 2. Moses Mukaja 3. Christopher Kagotho 16. That the new members planned balloting for members which was done on 13/8/2000, the deceased took plot No 4 & 5 while he took 23,28,36 and 37.That after balloting each member would go to the Chairman and the ballot paper would be signed and entered into the Register. The witness identified the Register and the List of balloting for the year 2001 marked as MFI 3 and 4 where the deceased was No. 31 and the Accused was No. 15 had balloted for Plot No 30. 17. That the members were shown the Plots and they waited for title deeds. That the accused plot No 30 is not close to Plot No 4 & 5 and one has to cross the road. That the land was vacant. The Accused was placed on the land when the members disagreed after election of new officials. 18. PW3 was cross examined, he stated that MFI 4 which was the list of members did not have signatures. That the deceased balloted after him , that the member would give his ID number during balloting. That all members got ballot papers, if a member wanted to sell it was required that the parties go to the group office. 19. **Pw4 Julius Muchoki Githinji**, the Secretary of the Self-Help group at the time the case started since 2013, that the deceased was a member when the group started and that balloting was done at Shauri Moyo in the year 2000. That he did not see the deceased that day, he was a member and he made contributions. He must have had a plot. That his name is No. 21 on the list, that they were shown plots after about 2 months. He never saw the deceased when they went to see the plots. That he noted from the documents that at some point the deceased had been allocated plot No 4 ,5 & 6 and then 4 and 5 and also plot No 49, 48 & 50. He referred to allotment of plots dated 13/3/2021 marked as MFI 5. The accused plot is 48 49 50 and Patrick Muturi Kangundo had plot 4 and 5. 20. That he noted the discrepancy and in 2015 the officials sought to find out what was happening. The deceased died on 23/2/2002 while the balloting was in 2000.That he interacted with the deceased during meetings when they made contributions, he never went to see the deceased plots. Further that the accused was the current Treasurer, he joined the group in 1996 and they were elected together in 2013. That the accused also balloted. The deceased had not developed his plot. 21. That he was able to know his plot by counting from the first plot, the surveyor also placed beacons. The plot No. 4 & 5 were with the accused at the time but the plot numbers were not the accused in the documents .The accused bought the plot from D.K Nganga who was also a member. 22. That D.K Nganga bought from Patrick Kangundo who was the Secretary in the first group. That he indicated that he was selling on behalf of the deceased who was ill at the time. 23. That D.K Nganga is deceased though he was not the Secretary when he died. That the officials saw the discrepancy and they decided to give plot No 6 to the deceased’s wife. 24. He stated during cross examination that his name is indicated as No. 22 and he is allotee for Plot No 21. That they signed the Register. He was shown DMFI 1 showing the same details and that he signed the List. The deceased is listed as No. 30 for plots No. 5 and 6 and Selina Wangui is listed as No. 31 for Plot No 4 . This was compared to MFI 4. 25. The custodian of DMFI 1 was Amukaja,he was also referred to the extract of the diary marked as DMFI 2. That it shows that D.K Nganga paid the deceased. MFI 4 indicated that Plot 47 is for Charles Karacho Mwangi. 26. He stated during re-examination that, DMFI 1 indicated that plot No 4 belonged to Penina Wangui and not D.K Nganga. That entries had been altered from plot No. 4 ,5,6 to Plot No .48 , 49 , 50. That DMFI 1 has discrepancies, further the ownership of plot No 4 was not resolved. 27. **Pw5 Patrick Muturi Kangundo** stated that he was a member of the Self-Help Group which was formed in 1996 he joined as member No. 75 in the year 1997.That elections had been held in 1998 and shamba had been bought at Komarock. That members continued to contribute, that the shamba was 10 acres, 3 acre were sold and 7 acres were subdivided to 52 Plots. That by 1998 new officials were elected and they gave chances to members who had not made contributions to do so. He referred to MFI 3 and stated that the deceased had contributed ksh 19, 525/= between 1996-1998 and Ksh 15,000 /= between 1998 and 2000 . He referred to the account statements dated 27/11/2002 as MFI 6 .He was the secretary in 2000. 28. He further stated that the Chairman gave notice to members before balloting. That balloting was done on 13/8/2000 and that he was present, the deceased balloted for plot no 4 ,5 & 6. That he and the deceased were in the committee and they were verifying members to ensure they had made contributions before balloting. 29. That he knew the accused and he was present during balloting, he balloted for plots number 30 31 and 32. That they gave out allotment letters and the deceased was given allotment for plot number 4 & 5 and No 6 was withdrawn. He identified MFI- 7 which is a letter of revocation dated 8/12/2001. 30. That there was a case against former officials holding office between 1998 -2014 and 2014-2015 new officials. The original allotment dated 27/10/2001 ***was seen by the court*** and marked as MFI 4.The letter by Oluoch & Co. Advocates 4/12/2014 marked as MFI-8 . 31. That the Accused was the Treasurer from 2014 and he balloted for Plot 30 ,31 and 32.They were friends until problems started when they grabbed Plots No 10-14 with Kinyanjui.Kinyanjui was convicted in Kangundo Law Courts. 32. He stated during cross examination that they had 52 Plots which were allotted to members who had contributed more than Ksh. 8000. He noted that the original Ledger produced in Court had been altered MFI-3 , that Penina name in DMFI 1 as being allotted Plot no 4 was by mistake ,she was not even a member and this was to be corrected. The record was changed, that her husband was a member. 33. That he never transacted with D.K Nganga personally and they had no interaction over Plots Numbers 4 , 5 and 6 .The Diary Extract marked as DMFI 5 had a signature that resembled his signature. That Charles Karacho had allotment No 46, the card does not belong to the Self-help group and the allotment does not have a seal. Allotment was issued after proper ballot papers which had seals. That there was a judgement from Court restraining them from dealing with the land, the case was **CMCC No. 1910/2014 marked as DMFI 7.** 34. He stated that he was the custodian of the ledger at the time he was in office, that the Final List of beneficiaries had 52 plots and it came to be known on 13/8/2000 when they balloted. He was referred to DMF1-1 and said that the Ballot List had many errors and it had to be done again it was not the Final List. 35. **Pw6 No 70098 James Mwongera** from DCI Land Fraud Unit testified that he took over the file from Thomas Kareithi who was on transfer. That the matter was reported by Pw1 on 1/12/2016 and she stated that her late husband Timothy Mwangi Ndathi was a member of Mwanzo Self-Help group and that they bought a parcel of land at Oldonyo Sabuk Komarock. Pw1 produced documents left by the deceased and given to her. Pw6 produced the shareholder ballot for plot No 4 and 5 as Exhibit 1 (a) and (b). The allotment confirmation as Exhibit 2,the Contribution List as Exhibit 4, the List of shareholders Exhibit 3.The death certificate of deceased late husband of Pw1 and Affidavit of Customary Marriage . 36. That the group did not have an office and they met in hotels, they held a meeting at New Githanu hotel in Eastleigh in 27/4/2013. That the Complainant reported that the Accused had forcibly detained on her Plots .He visited the Plots at Komarock and found that the Plots had been developed. Plot No4 had been occupied half way the Complainant showed him boundaries. 37. The Accused was called and he confirmed that it was his home, he never met with the appellant. The group members recorded their statements and they confirmed that the Plots belonged to the deceased. They gave out the List of ballot members produced as Exhibit 4 and the Contribution Account as Exhibit 6 .That Charles Mwangi contributed ksh 27, 000/= as member No 31 and he balloted for plots number 4 and 5 on 13/8/2000. 38. That he recorded the Accused’s statement, he said he bought the Land from Selina Kalekye who was serving a jail term at Machakos prison from 1/7/2019. He also recorded her and she admitted that she sold the plots to the accused. Dr. Nganga her husband also wrote to the Self- Help Group asking them not to transact on plot on ***No DONYO SABUK KOMAROCK BLOCK 1/7794***. 39. He stated during cross examination that the current officials declined to avail the original documents, that Exhibit 5 matched with DMF I- 1 , that in DMFI -1 indicated that the deceased was allocated Plot 5 & 6. 40. That there was an order from Court about the previous and current officials of Self Help Group. That officials changed the records of Plot no 4 & 5 but he did not manage to know the exact person who changed the records. That Selina’s husband wrote to the group and said that she had not authored any dealing with her Plots but she did not indicate the Plot numbers. That the Complainant never told him of the directions and processing of share certificates. That he never verified the details of original plot number 4 & 5 from the office and whether there was amendment. **THE DEFENCE CASE.** 1. The Accused gave sworn evidence and he stated that he lived in Kantafu and that he operates a hardware at Dandora Phase 1. That he bought Plot no 4 and 5 between the year 1996 and 1998.The land was 10 acres and 7 acres was subdivided to 52 plots and 38 members qualified to get plots. He referred to DMF I - 8 and he testified that 78 members had invested Ksh 8,500/= they qualified to be allocated plots, 2. That Selina Kalekye sold to him Plot 4 in 2012 with her husband, she is still a member, that the Secretary was Patrick and he confirmed that plot No 4 belonged to Selina in the year 2012. 3. He referred to Sale Agreement with Selina dated 28/10/2012, that the seller she wanted to raise fees. Further that he exchanged plot No 5 with plot No.47 which were opposite each other. His Plot was plot 46 and 47 while Plot 5 belonged to D.K Nganga. That Charles Mwangi Karachu sold to him Plot 46 and 47. He produced the Agreement dated 28/7/2010 as D Exhibit 10 (a) and the Exchange Agreement with Plot 5 as DExhibit 10 (b) 4. The ballot paper for Plot No. 5 was produced as D Exhibit 6 (b) and it was given to him by Charles. He also referred to the confirmation letter dated 15/5/2002. That he informed the office when he bought the plots, he was not an official at the time he bought the Plots. That the Register shows that Plot number 4 and 5 belong to Charles Hinga and that he got it at the DCI office. However, D Exhibit 4 indicates that Plot 4 and 5 belonged to Muturi Kangondu and Plot No. 5 belongs to the deceased. 5. That P Exhibit 4 has a list of 37 members and that there were different versions of P Exhibit 4 which was the list of members. That the former official refused to hand over and that they went to court and the officials were forced to give them documents. He got the documents from Secretary Patrick Muturi when he bought the Plot. 6. He said during cross examination that Selina Kalekye’s name was not in DMFI 1 and her husband’s name is indicated under No plot 11-13. That D Exhibit 3 shows that 29 members had Plots. That he was given ballot for Plot no 47 but he did not have ballots for Plot No 4 and 5. The Agreement was for Plot 4 and 5 and it indicates that it was between the accused, Selina and D.K Nganga, she did not give him a ballot paper and no surveyor pointed out plots 4 and 5 to him. Further that there is no surveyor reports on the land. 7. He said that the ballot paper was with the office , it was to be given to the buyer upon payment of the balance. He had a balance of ksh 20,000/= . 8. The appeal was canvassed through written submissions. **WRITTEN SUBMISSIONS ON APPEAL.** **THE APPELLANT’S SUBMISSIONS.** 1. The appellant’s issues for determination as ***whether the prosecution proved the offence of forcible detainer whether the appellant possessed the land without colour of right , whether the complainant proved lawful entitlement to possession whether the trial court ignored contradictions and the defence evidence ,whether the matter was fundamentally a civil dispute and improperly criminalized .*** 2. The appellant submits that ownership is a matter of law and cannot be proved through informal and disputed allocation documents. That no titled deed existed and beneficiary rights were not confirmed. That the court through convicting the appellant erroneously determined the ownership of the land in disguise of the criminal trial which is the jurisdiction of the Environment & Land Court. That the proprietary right were not adjudicated before the right forum and the criminal court was used as a short cut . 3. That the complainant relied on informal ballots and the investigating officer had a further duty under Article 50 and 244 of the Constitution to perform professional and transparent investigations. That Pw6 failed to verify the official land registers and to interview the seller who confirmed the appellant’s transaction . That the investigations failed to establish the root of title and also ignored the colour of right presented by the defence. 4. That ballots and allotment letters are mere expression of intent to allocate land and do not constitute entitled by law to possession as required under Section 91 of the Penal Code . 5. That the defence proved right over the land through valid contracts .That the court acquitted the appellant on the charge of farud and conspiracy through found that fraud was not proved . That the prosecution’s theory was that possession was unlawful because land was fraudulently acquired . 6. That the court erred in finding that was an innocent purchaser and also find that he was a criminal trespasser The appellant refers to the case of **Robert Karanja Kamau -Vs- Republic (2016) eklr** 7. That the conviction on count II was unsafe , the prosecution failed to prove the complainant’s legal entitlement to possession and also failed to prove breach of the peace .Further ,m the prosecutor failed to disprove the defence case on right over the land. 8. That the claim before court revealed competing claims of allocation conflicting registers and disputed beneficiary lists within the Self Help Group 9. That the offence requires evidence of brawls threats and disturbance of public peace and not mere possession of the land .The appellant refers to the case of **Republic-Vs- Mwangi William Waithaka (2015) eklr** on requirement of force and reasonable apprehension of violence . 10. Further that the complainant corroborated the appellant’s case that he was in continuous possession since 2012. That there had been no claim of violence and disturbance of public orders . That long term peaceful occupation itself disproves the element of breach of peace **Moses Nyaga -Vs Republic (2016) eklr .** 11. That the court failed to consider the contradictions and unreliable evidence .The prosecution witnesses contradicted each other on who balloted plot NO 4 , whether Charles Hinga was qualified, payment requirements , authenticity of the registers multiple conflicting records .Further that the records were altered , the ballot registers were conflicted and the ownership documents were inconsistent. 12. That where material contradictions the benefits must go to the accused. 13. Further that the court failed to consider the defence case and substituted judicial opinion for proof of ownership when it failed to evaluate the corroborated and uncontroverted documents produced by the appellant . That the investigating officer conformed he never verified the that Selina sold the plots he never investigated the altered records and he never conformed the ownership from the land registry ,The investigating officer ignored the exculpatory evidence of Selina Kalekye. 14. That document altercation created reasonable doubt on the prosecution case , the court ignored these doubts and used speculation to bridge the gaps in the prosecution case. 15. Further that the court ignored admissions made by the prosecution’s witnesses and this was a misdirection. 16. That the case involved a contested title and the criminal prosecution was improper . That criminal prosecution should not be used to settle civil disputes The appellant refers to the cases of **Paul Mwangi Myraya -Vs- Republic 2015 eklr and Republic -Vs- Chief Magistrate exparte Ganijee (2002) eklr.** 17. The appellant also filed further submissions in response to the prosecution’s grounds. 18. The appellant has served 1 year probabation and filed this appeal for setting aside of the judgement and clearing his criminal record **THE PROSECUTION’S WRITTEN SUBMISSIONS.** 1. The prosecution submits that the evidence proved that the deceased was the legal owner of Plots No 4&5 through the documents and witness evidence .The prosecution produced the shareholder ballot paper allotment letter contribution register list of balloting and shareholders and allotment of plots. 2. That the prosecution also produced the account statements. 3. That the appellant demolished the complainant’s perimeter fence and continued occupation despite Pw1’s lawful confrontation. That this created tension and breach of the peace. 4. That the manner of occupation and tension went beyond civil dispute and was criminal conduct under **Section 91 of the Penal Code**. That the ingredients of the offence were proved. 5. That the defense was a mere denial. The appellant failed to present the documents in support of his ownership during investigations. That civil and criminal disputes can ran concurrently. However, the Appellant’s conduct disclosed criminal offence. **ANALYSIS & DETERMINATION** 1. The Court considered the Trial court record/proceedings and judgment the grounds of appeal and submissions by Appellant and Respondent through their respective Counsel. 2. In the case of [*David Njuguna Wairimu -Vs- Republic*](http://kenyalaw.org/caselaw/cases/view/68697) (2010) eKLR by the Court of Appeal stated as follows:- “***The duty of the first appellate court is to analyze 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 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 decision.”*** 1. The issues for determination of the appeal 2. **Whether the prosecution proved the charges beyond reasonable doubt** 3. **Whether the defense case casts doubt on the prosecution case.** 4. Section 91 of the Penal Code provides that :- **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 misdemeanor termed forcible detainer.** 1. The Prosecution shall prove the offence of forcible detainer against an accused person if it demonstrates that:- **(a) A person has actual possession of land** **(b) The person has no right over the land** **(c) The act of possession is against the interests of the legal owner or the person legally entitled to the land; and** **(d) The act of possession of the land is, therefore, likely to cause a breach of the peace or a reasonable apprehension of the breach of the peace.** 1. The elements of the charges were listed in the case of [*Richard Mwangiri Ndoro v Republic*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/49) (2005) eKLR where the court set out the ingredients of the offence of forcible detainer as follows: “***The offence of forcible detainer is committed where-*** 1. ***a person is in possession of land without colour of right*** 2. ***that above person holds on to possession in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace*** 3. ***the breach in question must be directed at a person entitled by law to the possession.”*** 4. **The Black’s Law Dictionary, 11th Ed,**defines without color of right as: -**The deliberately created false impression that title in property or goods is held by someone other than the actual owner.** 5. The Appellant was convicted for being in possession of plot No 4 and 5 in Land Parcel registration **NO.DONYO SABUK KOMAROCK BLOCK 1/7794** on diverse dates between 2012 and 2021. 6. The Appellant contested jurisdiction of the Criminal Trial Court that ownership of land legally is within the jurisdiction of the Land & Environment Court. The Appellant alleged that the Trial Court used Criminal Trial as a shortcut. 7. The jurisdiction of Land & Environment Court; (ELC Court) holds the legal mandate/requisite jurisdiction by virtue of **Article 162 (2) of Constitution** and **Section 13 of the Land & Environment Act** to hear & determine matters regarding the environment and the use and occupation of, and title to, land. 8. The matter reported to Law Enforcement, Police was not whose title/ownership documents over Plot 4& 5 were genuine or not, PW1 testified, her neighbor informed her that the Accused person had demolished her fence and she reported the incident to KBC Police Station. Both PW1 & Accused person were summoned to the Police Station and each was to produce documents of ownership. PW1 produced her documents and the Accused person did not produce any documents then. PW1 was advised to report the matter and/or sue Accused person. PW1 reported incident of forcible entry and detainer to the suit property Plot 4 & 5 to the Land Fraud Unit and investigations commenced culminating to the Criminal Trial. 9. The Appellant ought to have raised the question of jurisdiction before Trial in Criminal Court as Preliminary Objection for determination at the time and at earliest opportunity. The Accused person could have filed claim /suit in ELC to have the question of ownership heard and determined. The Appellant would have reported the incident of PW1 erecting a fence on his property instead of taking law into his hands and he demolished the fence. 10. The law; **Section 93A of Criminal Procedure Code Cap 75,** establishes that the institution or pendency of civil proceedings does not prevent, stay, or bar the State or prosecuting authorities from instituting or continuing criminal proceedings arising from the same set of facts. Criminal and civil proceedings maybe conducted simultaneously where specific aspects raise criminal offences and civil wrongs. 11. In the criminal trial were the offences of conspiracy to defraud c/s 317 of the Penal Code and Forcible detainers c/s 91 read with s 36 of the Penal Code of forcible detainer. PW1 reported forcible entry and demolition of the fence she erected to the Police and following complaint investigations led to the preferred charges against the Accused person and another. 12. The Appellant took issue with conduct of investigations that they were not complete as required under **Article 50 & Article 244 Constitution** and failed to establish root of title and ignored color of right of the Appellant. 13. In **Albert Ouma Matiya vs Republic HCT AT BUSIA Criminal Appeal 8 of 2012;** the Appellant was aggrieved because he was convicted after full trial for the offence of forcible detainer and submitted that the court did not consider that he had been in actual occupation of the suit land for over 26 years and he had never been evicted. The prosecution adduced evidence that the Complainant was registered owner of the land and he had obtained eviction order from Court. The appellant was evicted and forcefully came back 10 months after eviction and he did not produce any document or adduce any evidence to support his title ownership or possession to the land. The prosecution proved unlawful possession and occupation on the land. 14. In the instant case; the appellant’s occupation of plot No 4 & 5 on the said dates is not contested. Pw1 testified the Appellant forcibly entered and demolished the perimeter fence on the suit property and continued occupation on Plot No 4 and that he had put up a toilet and chicken structures. That there was sand on Plot No 5. 15. She also gave particulars of how the Appellant upon joining the Self- Help Group Committee as Treasurer he told her that her husband’s plots had been sold but the Appellant could not tell her who had bought them. In his defense he stated he bought the Plot 4 from Selina Kalekye as per the Sale Agreement of 28/10/2012. He deliberately failed to disclose he was the buyer. If he was legally in occupation, he knew the Plots he should have disclosed he was the new owner unless he had a sinister motive to hide if he lawfully acquired the property. The Appellant disclosed the fact of sale was after new officials were elected and the appellant was among the new officials. 16. PW1 testified that she decided to fence so that the new buyer could come out. PW1 fenced the plot. That her neighbors called her the next day and said that the accused had demolished the fence. She reported the issue to KBC police station. That the accused and Pw1 were summoned to the police station where Pw1 produced while the accused did not produce documents. The complainant was advised to go to court and that the accused claimed the land but he did not have documents. 17. I find that PW1 fenced the plot which was forcibly removed by the Accused. That entry was forceful and PW1 had to go report to the police, it ended in criminal prosecution. I find that entry and occupation was not peaceful. The manner of entry and continued occupation went beyond a civil dispute as it created confrontation and tension thereby causing breach of peace and fell squarely within the ambit of **Section 91 of the Penal Code**; a criminal offence. 18. In the case of. [Julius Edapal Ekai -Vs- Republic [2018] KEHC 7752 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/7752/eng%402018-02-12) the High Court found that there was breach of peace when the accused fenced off a land and destroyed the sign post . That:- ***“On 14/7/2015, they received information that the appellant had invaded the yard destroyed the sign post and deposited ballast materials on site. They requested him to remove the ballast but he refused. The matter was reported to police and appellant was arrested and charged with the present offence.”*** 1. The Appellant submitted that investigations failed to establish the root title and ignored the color of right presented by the Defense. That ballot and allotment letters are mere expression of intent to allocate land and did not constitute a title by law to possession as required by **Section 91 of the Penal Code**. 2. Secondly, the Appellant submitted that the claim before the Trial Court revealed competing claims of allocation, conflicting registers and disputed beneficiary lists within the Self Group. 3. The Appellant alleged that prosecution witnesses contradicted each other on who balloted Plot 4; whether Charles Hinga was qualified and had complied with payment requirements, the authenticity of Registers and multiple conflicting records. The records were altered, ballot registers conflicted and ownership documents were inconsistent. 4. In **Richard Kiptalam Biengo -Vs- Republic [2015] eKLR** the court held that; ***“…where the ownership of the land in an offence of forceful detainer is in controversy or to put it more appropriately, if the legal ownership or entitlement of the land cannot be established beyond reasonable doubt at the accused person’s trial, then a conviction cannot be sustained.”*** 1. **Section 26 of the Land Registration Act** provides that :- “ ***The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner***….” 1. The Appellant alleged that the Prosecution did not present title documents over the suit plots. The witnesses referred to ballot papers and list of members and allotments issued by the Self- Help Group. 2. Pw1 testified that her late husband was a member of the Self Help Group and that the deceased purchased 2 Plots Plot 4 & 5 and gave her the documents. That 3 months after her husband’s demise, she went to the Self Help Group’s former office at Jogoo road and that she was given the allotment by the Secretary and Treasurer of the group at the time. 3. Pw 2 was elected Chairman of the Self-Help Group from 1998-2023 and testified Charles Mwangi (deceased Husband to Pw1)was member of the Group. Charles Mwangi Hinga owned Plots 4&5, he was not aware of any sale. There was no official notification of any sale. 4. In cross examination he confirmed that the deceased took ballots for 3 Plots but completed payment for the 2 Plots only. Peninah Wangui signed for Plot 4 but she did not complete payment. 5. Pw3 Secretary of the Self Help Group from 1996 -1998 when 29/10/1998, members demanded elections and a new team came in. Balloting was conducted by each member and Chairman signed ballot paper and then entered in the Register. The deceased was registered as No 31 with Plot 4& 5 and the Accused person No 15 with Plot 30 as per the Register and List of Balloting of 2001. 6. Pw 4 Secretary from 2013 confirmed from documents that deceased was allocated Plot 4,5 & 6.Accused had Plot 48,49 & 50 and Patrick Muturi Kangundo allocated Plot 4& 5. This was at 2015 and records had a discrepancy. The deceased took the ballot in 2000 and died on 23/2/2002. The Plots 4&5 were with the Accused person but the records they were not in his names. Pw4 said DK Nganga bought Plot 4&5 from Patrick Kangundo then DK Nganga sold to the Accused. In cross examination Pw4 confirmed from records DMFI shown to him that deceased was listed No 30 for Plots 5& 6 and Selina/Penina Wangui listed for Plot 4. Pw5 Secretary in 2000 of Self help Group confirmed balloting on 13/8/2000 and he was present and witnessed the deceased took ballot of Plot 4 5 & 6.The Accused person took ballots for Plots 30 31 & 32. He was with deceased in the same Committee of verifying members who paid their contributions took ballots. Later by letter dated 8/12/2001 of revocation of Plot 6 allotted to deceased for lack of completion of payment. There was/ is before Trial Court and before this Court Trial Court record that confirm direct evidence by Pw2 & Pw5 that they saw and confirmed that deceased took ballots for Plot 4&5 & 6 as at 13/8/2000. There is documentary evidence of List of members, Contribution List and Ballot registered List and testimonies of Pw2 Chairman and Pw3 Pw4 & Pw5 Secretaries of the Group different times that the records of the Group during the deceased’s lifetime 2001 listed him as the one who was allotted Plot 4& 5. This Court is satisfied that as at 2001 when deceased died root title was in his names for the 2 Plots and legal and legitimate owner. What happened thereafter, 2001 in successive elections and change of leadership Teams even the Trial Court could not find sufficient evidence that the Accused person was involved and/or connected to conspiracy to defraud but clearly records were doctored tampered with etc.It did not affect the Deceased’s entitlement as at the time of his death. 1. The evidence adduced by the Prosecution cumulatively also proves that the Plots No 4 & 5 belonged to the deceased, late husband of PW1 was through production by Pw1 Complainant widow of the deceased and Pw6 Investigation Officer of; 1. Shareholder Balloting Paper 2. Allotment Letter 3. Contribution Register of Mwanzo Self Help Group 4. List of balloting and/of Share holders 5. Allotment of Plots 6. Account Statements confirming payments 7. Deceased’s Death Certificate 8. Affidavit of Customary Marriage between Deceased and Complainant 2. The Appellant’s Defense is that he bought Plot 4 & 5 between 1996-1998 as a group and provided List of members of Mwanzo Self-Help Group DMFI-8. In the same breath, the Appellant bough Plot 4 from Selina Kalekye with her husband. The Sale Agreement is of 28/10/2012 and the one for Plot 5 he exchanged with his Plot 47. The Agreement and Letter of Exchange are of 328/7/2010. In cross examination he confirmed genuine member register with names Charles Hinga Mwangi Plot 4 & 5. The Appellant admitted he bought the Plots from Selina Kalekye (in prison serving sentence) and her husband DKK Nganga(deceased) but Selina was not a member of the Group she did not ballot. The Appellant had ballot for Plot 47 and not for Plot 4& 5. The Agreement between himself DKK & Selina they did not give him a ballot paper. 3. The evidence on record; Pw1 widow of deceased stated that her husband is the one who took ballot Plot 4& 5 paid up was registered and gave her the documents to keep and later approached the Self Help Group at their office on Jogoo Road and got Allotment Letter. 4. In the case of **Torino Enterprises Limited –Vs- Attorney General ESC 79 (KLR) (22 September 2023)** citing **Dr Joseph NK Arap Ng’ok v Justice Moijo Ole Keiyua & 4 others**[***CA 60/1997***](https://new.kenyalaw.org/akn/ke/act/ca/1997/60) and holding of the Supreme court at paragraph 58 follows :- ***So, can an allotment letter pass good title? It is settled law that an allotment letter is incapable of conferring interest in land, being nothing more than an offer, awaiting the fulfilment of conditions stipulated therein*.** 1. I find from the evidence on record that the Appellant’s assertion that ballot paper and Allotment letter did not confer ownership and/or title of the property. If that be the case, then the documents provided upon the alleged sales of Plot 4 & 5 to the Appellant by the various parties named vendors; Selina Kalekye, DKK Nganga and Charles Mwangi Karuchu where only Sale Agreements were produced and no document of title or ownership similarly would not have conferred and ownership rights to the Appellant. A seller cannot pass a better title than he/she holds; the Appellant upon sale received no document of title also amidst the alteration of records and conflicting ownership lists and registers. The Appellant upon joining the leadership of the Group later on was in an advantageous position with access knowledge and opportunity to access the Group’s original records and fastrack issuance of title(s) over the properties. 2. From the totality of evidence and its corroboration, I find that the balloting and original allotment documents of the plots No 4&5 was issued by the officials of the Self Help group in favour of the deceased. That he had complied with allotment and that his wife was allowed to take possess .That the appellant obtained forceful entry and retained occupation when the dispute was ongoing . 3. I have also considered submissions filed in the case and the accused ground of appeal that the court erred in failing to consider that the accused had a valid contract for sale for plot No 4 and exchange agreement of plot No 47 with plot No 5. The Trial Court was right in the sense that a Sale Agreement by and of itself was not confirmation of a legal sale and transfer of ownership rights especially where vendor(s) were not availed owner was not confirmed from the Members Register Balloting Register and Contribution Register. 4. The Trial Court in Judgment delivered on 16/11/2023 stated in part that the Appellant went to Pw5 and he confirmed that the Plot No 4 belonged to Selina Kalekye but when Pw5 testified the Appellant did not raise the issue/claim in cross examination of PW5. The Appellant was not a *bona fide* purchaser for value without notice of defective title as he did not engage involve the Management of Self Help Group peruse Registers make enquiries consult and find out whether the vendors were actual owners or not. If D K K Nganga sold on behalf of deceased the Sale Agreement did not disclose deceased as owner of property. 5. I find that the prosecution had established that the deceased acquired the parcels through lawful processes as per Prosecution evidence on record and documentary evidence produced and direct evidence of deceased seen balloting and acquired after paying up Plot 4& 5. This evidence particularly came from eye witness PW5 who saw deceased ballot and was corroborated through documentary evidence on the land acquisition. 1. In the case of **Dina Management Limited vs. County Government of Mombasa & 5 others [2023] KESC 30 (KLR)** where the Supreme court settled the principle of bonafide purchaser and the requirement that the acquisition must first be above board “***To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment…Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.***.. 1. On whether the acquittal on count 1 meant that the appellant’s title was not a corrupt of fraudulent acquisition The Trial Court found that conspiracy to defraud was not proved because the Appellant’s Co- accused were not before Court. 2. However, this finding did not alter the prosecution evidence that the records had been altered. The difficulty was that the persons involved were not pointed out. Alteration of documents and contradictions highlighted in Dex1 together with the testimony from the officials proved that transactions were questionable and some illegality was perpetrated. The deceased’s acquisition of the Plots 4& 5 was confirmed as at the time of demise 2001. Appellant’s acquisition as outlined in the Defense was not above board. **DISPOSITION** 1. **In the upshot, I find that the prosecution proved the charge beyond reasonable doubt. The Appellant’s appeal is dismissed.** **DELIVERED DATED & SIGNED IN OPEN COURT CRIMINAL DIVISION -MILIMANI ON 30/7/2026.** **M.W. MUIGAI** **JUDGE**