[2022] KEHC 360 (KLR)

Owalla v Republic (Criminal Appeal E050 of 2021) [2022] KEHC 360 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 360 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E050 of 2021

FA Ochieng, J

May 5, 2022

Between

Victor Ogutu Owalla

Appellant

and

Republic

Respondent

(Being an appeal against the Judgment and sentence of the Chief Magistrate’s Court at Kisumu (Hon. shimenga (SRM) delivered the 27 th October 2021 and 09 th November 2021 Respectively in Kisumu CMCCR No. E149 of 2021)

Judgment

The Appellant was convicted for the offences of Forcible Entry, and Forcible Detainer, contrary to Sections 90 and 91 respectively, of the Penal Code.

1. In respect of each offence, the Appellant was sentenced to 2 years imprisonment. However, the trial court ordered that the 2 sentences should run concurrently.

2. The appeal before me is against both the conviction and the sentence.

3. Being the first appellate court, I will re-evaluate all the evidence tendered, and I will then draw my own conclusions from the said analysis. However, I will remain alive to the fact that, unlike the learned trial magistrate, I did not have the benefit of observing the witnesses when they were testifying. Therefore, if the court based any findings upon the demeanor of any particular witness, the Court has to go along with such findings unless the said findings cannot be supported by the totality of the evidence on record.

4. PW1, Joash Onguko, was a Manager of National Housing Corporation (NHC). He testified that NHC was the owner of the house which is at the centre of the legal dispute herein.

5. The House is No. 23/58, located at Mosque Estate, Kisumu.

6. He testified that the tenant, as reflected in their records, was Judith Awuor. However, he also acknowledged that the said tenant passed away on 10th July 1995, whereupon her son, Samuel Oyoo Orwa, signed a Lease Agreement with NHC, on 14th May 2003.

7. PW1 said that there were rental arrears of Kshs 47,505/= as at December 2020. Therefore, NHC issued a Notice addressed to Judith Awuor, requiring the tenant to clear the arrears.

8. When the arrears were not cleared, NHC locked up the house.

9. PW3, Calvin Agina, is an electrician and an Enforcement Officer at NHC. He is the person who locked up the house.

10. He did so after allowing the sub-tenants who were in occupation, to remove their things from that house.

11. PW3 testified that the Appellant later regained entry into the house. He said that the Appellant gained entry by breaking the padlock which NHC had placed on the door.

12. He also testified that after the Appellant had been evicted, he paid the rent arrears.

13. PW4, Daniel Oloo Kolare, is an Elder of the Mosque Estate.

14. He was present, together with the area Assistant Chief, when NHC was carrying out the eviction.

15. At about 8p.m, on the evening of the same day when eviction had been carried out, the Appellant regained entry into the house.

16. PW5, Mohamed Omar, is a contractor.

17. On 31st December 2020, he was engaged by PW2, to carry out some repairs in the house.

18. When he gained access into the house, he was chased away, by some youths. Therefore, PW5 was unable to assess the work which was required.

19. At the time when the youths chased him away, PW5 was in the presence of the Appellant.

20. PW5 testified that the youth were rowdy and yelling.

21. PW6, P.C. Peter Omollo, is a police officer who was attached to Kisumu Central Police Station at the material time.

22. His investigations revealed that PW2 faced physical resistance when she tried to access the house.

23. He testified that the persons who were in actual possession of the house, prior to the eviction were;i.Claire Achieng;ii.Paul Ngetich;iii.Stephen Otieno; andiv.The Appellant

24. It was the Appellant who had sub-let some rooms to the other 3 sub-tenants.

25. PW6 testified that the Appellant regained entry into the house after he had been evicted.

26. In his appeal, the Appellant submitted that the trial Court ought not to have invoked the criminal jurisdiction in a civil dispute, over the tenancy of the house.

27. He said that although the Tenancy Agreement showed that the tenant was Judith Awuor, he was a dependent of the said Judith Awuor. And even though Judith passed away on 10th May 1995, the Appellant believes that he was entitled to continue living in the house.

28. He cited the case of Veronica Nyambura WahomevsRepublic,Criminal Appeal No. 2 of 2017, to back his appeal.

29. In that case, the Appellant had been convicted for the offence of forcible detainer contrary to Section 91 of the Penal Code.

30. A reading of the Judgment of Mwongo J., reveals that the;“…….. matter arose from a dispute between the appellant and Kathleen Njoroge, the complainant over the Said piece of land, with both claiming Ownership.”

31. Therefore, the learned Judge allowed the appeal because Section 8 of the Penal Code protects persons with honest or bona fide claims, however misguided, from criminal liability. The Judge said;“I find that the claim of ownership by the appellant was not dishonest or made without colour or right. As such, no criminal liability ought to have attached to the appellant in the circumstances of this case.”

32. The second case which the Appellant cited was that of Parmelita Paranga & Another vs Republic, HCCRA No. 66 of 2019. In that case Mwita J. noted thus;“It is clear 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.”

33. In my considered opinion those 2 cases are distinguishable from the case before me. I so hold because the Appellant did not have any claim of ownership of the house in question. The house belongs to the National Housing Corporation (NHC).

34. Even in the case of David K. Sitienei & Another vs Republic HCCRA No. 75A & 75B of 2017 Bwonwonga J. held that the issue concerned ownership of the parcels of land.

35. In this case, the Appellant told the trial court that;“On 30/12/2020 I was told that the NHC employees and youth had broken into my door and threw my things out.”

36. He therefore ran to NHC, with the intention of paying the outstanding arrears of rent.

37. Obviously, by acknowledging that the landlord was NHC, the Appellant was not laying claim to the ownership of the house.

38. During cross-examination, the Appellant confirmed that he neither had a lease agreement in his name, nor any document that showed him as the owner of the house.

39. Accordingly this case did not involve a dispute as to ownership, and the Appellant did not lay claim to ownership.

Eviction 40. The Appellant has submitted that NHC never evicted him from the house.

41. As already pointed out above, the Appellant had told the trial court his things were thrown out by NHC. He also said;“I managed to pay arrears and amonth’s rent. I then moved back into the house.”

42. By acknowledging that he moved back into the house after he had paid the arrears of rent, the Appellant was confirming that there was a time when he was evicted from the house.

43. DW2, Austin Antony Tuju, confirmed the Appellant had been evicted. He said that the reason for the eviction was that the Appellant had not paid rent for 2 years!

44. Thus the Appellant’s own witness also supported the Complainant’s testimony, concerning the Appellant’s eviction.

45. I find that the prosecution proved beyond any doubt whatsoever, that NHC had evicted the Appellant.

Forcible Entry 46. After being evicted the Appellant regained entry into the house by breaking the padlock which NHC had placed on the door.

47. The said action constituted forcible entry.

Forcible Detainer 48. The Appellant told the trial court that he had returned to the house.

49. DW3, Isaac Luke Oburu, is the organizing secretary of Mosque Estate. He said that the Appellant was the occupant of House No. R 58.

50. I find that the Appellant was in occupation against the wishes of the owner.

51. The Appellant confirmed that when PW4 went to the house;“……. with a contractor to renovate the house, I asked them who gave them the authority to do that. My neighbours chased them away.”

52. By his own evidence, the Appellant confirmed that he had resisted the Complainant’s attempt to renovate the house. In my considered opinion, it is the Appellant’s action of questioning the authority of the Complainant’s agent, which led the youths to chase away the contractor and the agent of NHC.

53. In effect, I find that the prosecution proved that there was forcible detainer.

54. Accordingly, all the ingredients of the offences were proved.

Jurisdiction 55. Frankly, I failed to understand the dispute which the Appellant was describing as one of a civil nature.

56. He was not laying claim to the ownership.

57. He was in arrears of rent, and NHC issued a Notice to him. Even though the Appellant testified that he received the notice late, the fact is that he received it.

58. Following his eviction, whether or not he deemed it unlawful, the Appellant had no right to forcibly re-enter the house and take back possession.

59. Pursuant to Section 90 of the Penal Code;“Any person who, in order to take possession thereof, enters on any lands or tenements in a violent manner, whether the violence consists in actual force applied to any other person or in threats or in breaking open any house or in collecting an unusual number of people, and whether is entitled to enter on the land or not, is guilty of the misdemeanor termed forcible entry ……”

60. In this case, the Appellant gained entry into the house by breaking a padlock. Therefore, pursuant to Section 90 he committed a criminal offence.

61. Pursuant to Section 91 of the Penal Code;“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 a misdemeanor termed forcible detainer.”

62. The Appellant remained in possession of the house, after he regained entry. When a contractor and an agent were sent to carry out an assessment of the required renovations, the Appellant caused the said persons to be chased away from the house.

63. I find that the Appellant held possession in a manner likely to cause a breach of the peace.

64. Therefore, as the legislature declared those actions as constituting a criminal offence, the learned trial magistrate cannot be faulted for hearing and determining the case as a criminal case.

65. In any event, pursuant to Section 193A of the Criminal Procedure Code, even if the facts giving rise to the case could also have given rise to a civil case, that could not prohibit the prosecution of the criminal case.

66. In a nutshell, the conviction was well founded, and the same is hereby upheld.

Sentence 67. The offences of Forcible Entry, and Forcible Detainer are both misdemeanors.

68. After the court convicted the Appellant, it called for a Pre-Sentencing Report from the Probation Officer.

69. The Report painted a picture of a person who was difficult, and who had no regard for authority. The Appellant was not remorseful.

70. When it was explained to the Appellant that he would need to vacate the house in question, he became hostile.

71. In the result, the Probation Officer provided a report which indicated that a non-custodial sentence was unlikely to be useful.

72. In those circumstances, the trial court had the option of either imposing a fine or of handing down a custodial sentence.

73. The court handed down the maximum custodial sentence, pursuant to Section 36 of the Penal Code.

74. As the Appellant was a first offender, the trial court ought not to have handed down the maximum penalty, unless there were serious aggravating factors. In the notes which the trial court made during sentencing, there are no such aggravating factors that are discernable.

75. I therefore find that the sentences are excessive, in the circumstances of the case.

76. I set aside the sentences and substitute them with a fine of Kshs 30,000/= for each of the offences. In default of payment of the said fines, the Appellant shall serve imprisonment for a period of six (6) months for each of the 2 offences.

77. However, if the Appellant fails to pay the fines, custodial sentences shall run concurrently.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF MAY 2022FRED A. OCHIENGJUDGE