[2023] KEHC 26213 (KLR)

Njagi v Republic (Criminal Appeal 56 of 2020) [2023] KEHC 26213 (KLR) (Crim) (30 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26213 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal 56 of 2020

GL Nzioka, J

November 30, 2023

Between

Josphat Mutahi Njagi

Appellant

and

Republic

Respondent

(Being an appeal against the decision of; Hon. A. R. Kithinji, Senior Principal Magistrate, (SPM) delivered on, 31st August, 2018, vide Chief Magistrate’s Criminal Case No. 3515 of2018, at Makadara)

Judgment

1. The appellant was arraigned before the Chief Magistrate's Court at Makadara charged with an offence of forcible detainer contrary to section 91 of the Penal Code (Cap 63) Laws of Kenya.

2. The particulars of the charge are that, on the 29th day of July 2014 at Embakasi Ranching Company Limited, the appellant being in possession of the plot No. 2303, without colour of right, held in possession the said land, in a manner likely to cause breach against the complainant, Ruth Njeri Njau.

3. The appellant pleaded not guilty and the case proceeded to full hearing. The prosecution case in brief is that, (PW 1) Ruth Njeri Njau (herein "the complainant") purchased the subject plot from one Daniel J. Kimani at a purchased price of Kshs 410,000 and paid the same through cheque No. 007266 on 17th October, 2009, issued at Equity Bank at Kayole branch.

4. That the seller gave her a certificate of ownership No. 0xxxx7 and subsequently, she went to Embakasi Ranching Company to effect a transfer of the plot, paid the transfer fees and was issued with a receipt No. 53217 for a sum of Kshs 5,000. That she also paid for the survey and registration fees and was issued with receipts No(s) 016962 and 039294, in the sum of Kshs 32,000 and Kshs 20,000 respectively.

5. However, when she embarked on developent of the plot, the appellant stormed into the property armed with a panga claiming that, it belonged to him and later erected a fence around it and therefore the complainant could not access it. As a result, she reported the matter to the Station, the appellant was arrested and charged accordingly.

6. At the close of the prosecution case the appellant was put on his defence. He testified that, he acquired the subject property in question in the year 2006 and that he two plots at Embakasi Ranching Company being; plot No. 380 and V 568 which are adjacent to each other and that he has certificates to prove ownership of the same. He therefore denied committing the offence.

7. At the conclusion of the trial, the court held that the prosecution had proved its case beyond reasonable doubt, convicted the appellant and sentenced him to serve probationary sentence for two (2) years.

8. However, the appellant is aggrieved by the decision of the trial court and has appealed against it on the grounds as here below reproduced:a.That the learned Magistrate erred in law in convicting and sentencing the appellant and failed to note that the whole trial was a nullity when the charge sheet was defective in that;i.The charge sheet did not disclose the punishment section. It only stated the offence.ii.The land parcel stated in the charge sheet No. V 10287 doesn't exist. The appellant owns parcel No. V15680b.That the learned Magistrate erred in law and facts in convicting and sentencing the appellant. He failed to note that the appellant owns parcels No. V5680 and not parcel No. V10287 as stated in the charge sheet, and that the complainant Ruth Meri didn't know where her plot was.c.That the learned Magistrate erred in law in convicting and sentencing the appellant, and failed to note that the prosecution failed to prove its case beyond reasonable doubt.

9. However, the respondent opposed the appeal vide grounds of opposition dated; 26th April, 2022 which states that: -a.The Appeal lacks merit, is misconceived and unsubstantiated.b.The Appeal is an abuse of the court process since the appellant was properly convicted before the trial Court and the prosecution did discharge it burden of proof beyond reasonable doubtc.That the Appeal lacks merit and the same should be dismissed in its entirety.

10. The appeal was disposed of vide filing of submissions. The appellant in his submissions dated; 14th December 2021, cited the decisions in Muranga Criminal Appeal No. 430 of 2013; Richard Kiptalam Biengo vs Republic and Busia Criminal Appeal No. 8 of 2012 Albert Ouma Matia vs Republic where the courts set out the elements of the offence of forcible detainer being that; the accused must be in actual possession of subject land, has no legal right or title to hold the land, the possession is against the interest of the real owner or person legally entitled to the land, and the possession is likely or causes reasonable apprehension of the breach of peace.

11. The appellant reiterated that, he was not in possession of Plot No. V 10287 as stated in the particulars of the offence sheet. That, it was the evidence of (PWI) Ruth Njeri, (PW2) Francis Njau, (PW3) Daniel Kimani and (PW4) Daniel Mwaura that, the complainant bought plot No. 2303, which is a different plot from what is stated in the charge sheet.

12. Furthermore, the charge sheet Is defective as the particulars of the offence contradicts the evidence tendered to support the offence under section 91 of the Code and thus offends section 214 (1) of the Criminal Procedure Code (Cap 75) Laws of Kenya.

13. That, (PW6) Corporal Koech was not aware if plot No. V10287 existed or if it was the same as plot No. 2303 and affirmed that there was an error in the occurrence book (0B) and the charge sheet as regards the plot number. That, even then, the charge sheet was not amended despite the error being brought to the attention of the court.

14. That, he had never been in actual possession of plot No. V10287 or Plot No. 2303 nor claimed any right of ownership on the complainants' land. That, he acquired two (2) plots namely plot No.(s) V380 and V5680 both situated on Map 5 and that this is supported by the evidence of the Surveyor PW6 sic (PW5) David Nyika, who testified that the complainants' property is on Map 1OC and not Map 5. But the learned trial Magistrate omitted the evidence of PW6 sicPW5 from the judgment.

15. The appellant further submitted that, the prosecution has the burden of proof which is beyond reasonable doubt as stated in the case of; Steven Nguli Mulili vs Republic[2014] eKLR. Nevertheless, the prosecution failed to prove its case beyond reasonable doubt as it did not consider the evidence of (PW6) Corporal Weldon Koech who was a crucial witness.

16. However, the respondent in its submissions dated; 26th April 2022 argued that, the prosecution discharged its burden of proof as it proved all the ingredients of the offence and that the appellant was rightly convicted.

17. That on the element of ownership, there was prima facieproof by the complainant corroborated by (PW4) Daniel Mwaura, the manager from Embakasi Ranching Company that the land in question belonged to the complainant. Further, the share allotment produced by the appellant in support of her claim was for the plot adjacent to the property in dispute.

18. Furthermore, the appellant was illegally occupying the complainant's land without any legal documentation and in a manner likely to cause a breach of peace.

19. That, he installed water and electricity on the subject plot, leased it out to third parties, who refused to vacate it and blocked any attempt by the complainant to deposit building materials thereon, forcing her to take them away.

20. The respondent further submitted that, the defective charge sheet was not prejudicial to the appellant as he knew the charges he was facing. Further, he participated in the trial and was represented by an Advocate and in the circumstances no injustice was occasioned. Furthermore, the testimonies and exhibits were clear and cogent as to the land in issue.

21. At the conclusion of the hearing of the appeal and in considering the appeal, I note that, the role of the first appellant court thereof is to re-evaluate the evidence afresh and arrive at its own conclusion, bearing in mind that the court did not have the benefit of the demeanour of the witnesses.

22. In that regard, the Court of Appeal in the case of; Okeno vs Republic (1972) EA 32, thus observed:“An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination (Pandya V R 1975) EA. 336 and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantilal M, Ruwala u R [1957] EA. 570. It is not the function of a 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 should be supported ln doing so, it should make allowance for the fact that, the trial court has had the advantage of hearing and seeing the witnesses"

23. Be that as it were, the offence the appellant was charged with an offence is provided for under section 91 of the Code, which that states: -“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 misdemeanour termed forcible detainer.

24. The elements of the subject offence have been discussed in the various decision and in that regard, in the case Albert Ouma Mati a V Republic [2021] eKLR the court stated that:“91. 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 misdemeanour termed forcible detainer. "

25. Further in the case ofRichard Kiptalam Biengo vs Republic [2015] eKLR the Appellate Court held that for the offence of forcible detainer, the prosecution is required to prove 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. "

26. Similarly, in Julius Edapal Ekaivs Republic [2018] eKLR the High Court held that: -“A literal reading of Section 91 of the penal codeshows that the prosecution will only prove an offence of forceful detainer against an accused person if it demonstrates that:a.A person has actual possession of landb.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.Being in actual possession without any colour of right"

27. However, section 8 of the Code creates an exception to the offence where the accused has a bona fide claim to the property and states that: -""A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud "

28. In that respect Mwongo, J in the case of Veronica Nyambura Wahome v Republic [2019] eKLRdiscussed the import of section 8 of the Code and stated that: -“This provision protects persons with honest or bona fide claims, however misguided, from criminal liability merely on account that their claim is found to have been legally unfounded "

29. Similarly, in the case of Parmelita Padranga & another v Republic 2021 eKLRthe appellants were accused of being in possession of Kajiado/Kaputei-North/966 (Parcel No. 966) without colour of right, and held it in a manner likely to cause a breach of the peace. He denied the claim and stated that they owned parcel No. 939 and were neighbours with the complainant who owned parcel 966.

30. That, the Appellate Court after analysing the evidence found that, the main issue was not forcible detainer but confusion as to the boundary and actual parcels and stated that: -“44From the evidence of both sides, it is dear to this court that this was not a case of forcible detainer, but one of confusion over boundary and actual parcels of the feuding parties on the ground The trial court ignored the appellants' evidence and their witnesses that they lived on their parcel of land and that there was a possibility that what is on the map is different from what is on the ground. The 1st appellant also stated that he subdivided the land and sold a portion to the 2nd appellant. The 2nd appellant was, therefore, a victim of the same confusion. He was developing what he believed to be his parcel of land lawfully purchased from the 1st appellant. If the appellants are on the complainant's land, who is on their parcel of land? The prosecution witnesses and, in particular PW5 and PW6 who were supposed to assist the parties did not seem to have done their work well. l am therefore unable to agree with the trial court that the prosecution proved the ingredient of forcible detainer beyond reasonable doubt. "

31. That the court further stated that: -“48. I must observe here, that the issue in the case before the trial court (andin this appeal), appears more civilthan criminal. The appellants daim ownership ofthe land they occupy which, according to them, is different from that of the complainant, while the complainant claims that land too. The complainant's case is that the landbelonged her husbandbefore it was transmitted to her after his demise.There is evidence that there couldbe aproblem regarding identification of the parcels of landboth on paper and on the ground, an issue that cannot be resolved through criminal proceedings. The trial court was therefore wrong to convict the appellants when the 1st appellant claimed that he and the 2nd appellant were staying on the land which he was shown and later sold to the 2nd appellant portion thereof. It requires a different mode of resolving the issue other than through criminal sanctions. "

31. To revert back to the matter herein, having analysed the evidence adduced in the trial court, I find that, the particulars of the charge sheet clearly states that the appellant was in possession of Plot No. V.10287. YET, the entire prosecution evidence led by the complaint, her husband, the seller and even the Embakasi Company Manager refer to plot No, B2303.

32. Further, the complainant produced a certificate of ownership being No. 006737 in respect to plot No. B2303 which is not the plot described in the charge sheet. The complainant’s husband also referred to the same plot No. B2303, save to state in cross examination that, plot No. V.10287 changed to 2303.

33. Furthermore, seller categorically said he sold plot No. 2303 and the Manager of the company stated that he facilitated transfer of plot No. V2303. Therefore, it is clear that whereas the charge refers to plot No. V.10287, the evidence refers to No. B2303 or 2303. The prosecution did not make an effort to amend the charge sheet despite the issue arising during the trial, and/or explain whether the two numbers relate to the one and the same plot.

34. It is therefore the finding of the court that due to that disparity the particulars of the charge were not proved on the critical element of the subject matter and for that reason, the conviction cannot stand.

35. However, even considering the appeal on merit. There is no dispute that the appellant also owned at least one or two plots at the Embakasi Ranching Company where the subject plot herein is situate. (PW4), David Mwaura a Manager at the Company confirmed the same in cross examination. The appellant’s defence was that he was occupying his lawfully purchased and allotted plot. He also called evidence to support the same. It therefore follows that, each party was claiming ownership of a plot at the Ranch.

36. The question is who among the appellant and the complainant owned plot in issue and/or whether there was mistaken identity. In fact, according to the evidence of (PW5) David Nyika, he went with the seller and the appellant to the property and pointed to each one of them, where their respective plots were located, and that one was on Map 10 C and the other Map 5, supporting the appellant’s evidence he was in his own plot.

37. What is even puzzling is that the surveyor did not tell the court whether any of the two plots he pointed out to the respective parties is the one mentioned in the charge sheet.

38. In arriving at the conclusion that the appellant had committed the offence, the trial court found that he was in actual possession of the subject plot and that he failed to prove ownership as he produced certificate for plot No. B2303 and not the subject plot.

39. However, what eluded the court is that the complainant did not produce any document to prove ownership of the plot described in the charge sheet. Furthermore, the trial court also held that, the complainant produced documents to prove ownership of the subject property. However, the evidence revealed that the complainant had instituted a parallel suit vide ELCNo. 344 of 2012.

40. It is the court understanding that, the said is for all intent and purpose, dealing with inter alia; the issue of ownership of the subject property and therefore the trial court herein could not conclusively (if at all there was evidence to support the described plot), determine who had a better title or right of ownership to the disputed. Indeed, the trial court did not even visit the scene to establish whether the two parties were claiming the same property.

41. The upshot of the aforesaid is that, the prosecution did not prove its case on the balance of probabilities as required and therefore I quash the conviction and set aside the sentence accordingly.

42. It is so ordered

DATED, DELIVERED, SIGNED ON THIS 30TH DAY OF NOVEMBER, 2023. GRACE L NZIOKAJUDGEIn the presence of:The appellant present virtuallyMr. Busiege for the appellantMr. Ndeima for the respondent