https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8389

Republic v Cheruiyot (Criminal Appeal E058 of 2023) [2026] KEHC 8389 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 8389 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Appeal E058 of 2023 LN Mutende, J June 2, 2026 Between Republic Appellant and Alfred Muigai Cheruiyot Respondent Judgment 1.Alfred Mugai Cheruiyot, the Respondent, was charged with the offence of Forcible Detainer contrary to Section 91 of the Penal Code. Particulars of the offence were that on diverse dates between 21st February, 2011 and 22nd May, 2019, at Kaichakun area with Laikipia County, being in possession of land parcel No. Laikipia/Uaso Narok/511 of Kaichakun Primary School without colour of right held possession of the said land in a manner likely to cause a breach of peace against Kaichakun Primary School who was entitled by law to the possession of the said land. 2.Having denied the charge he was taken through full trial, whereby the court found that the prosecution failed to establish the essential ingredients of the offence hence reached a verdict of ‘not guilty’ and acquitted the Respondent pursuant to the provisions of Section 215 of the Penal Code. 3.Aggrieved, the State/Appellant preferred an appeal on grounds that;1.The learned trial Magistrate erred in law and in fact in by failing to consider the evidence adduced with regards to the offence of forcible detainer.2.The learned trial Magistrate misdirected himself in law and fact by acquitting the Respondent of the offence of forcible detainer having failed to consider the merits of the evidence presented by the Prosecution which was consistent and well corroborated.3.The learned trial Magistrate erred in law and in fact by acquitting the Respondent on the said offence when there was sufficient, safe and corroborated evidence to warrant a conviction.4.The learned trial Magistrate erred in law and in fact in failing to consider that the Respondent’s purported title of land being land Parcel No. Laikipia/Uaso Narok/916 never existed on the copy of the index map and he was therefore residing on the school land being Land Parcel No. Laikipia/Uaso Narok/511.5.The learned trial Magistrate erred in law and in fact in failing to consider that the Respondent’s continued possession of the disputed property being Land Parcel No. Laikipia/Uaso Narok/511 was occupied by the Respondent in a manner likely to cause breach of peace as the same was school land.6.The Judgment of learned trial Magistrate is against the weight of evidence adduced and the same is bad in law. 4.To prove the case the prosecution called 5 witnesses. PW1 Christopher Rotich Kosgei the Headmaster of Kaichakun Primary School who stated that the Respondent resided within the school compound where he had built a house. That demarcation was done by the County Surveyor and they erected a fence in the presence of the area Chief and the Respondent. That the surveyor advised him to avail his documents so as to be shown where his plot was, but, the Respondent refused to vacate the portion hence he was arrested and charged. He adduced in evidence, various documents in an endeavor to establish ownership of the land by the school. 5.On cross – examination PW1 denied knowing of existence of a civil case filed against the school and/or a judgment delivered in other cases. He further stated that the Respondent had a title deed but for a different plot No. 916. Denying having knowledge of when the Respondent settled on the parcel of land, he stated that he found him there and the school applied for allotment in 2000. 6.PW2 Samuel Akoli Kwamanjan a representative of parents at the school stated that they had a dispute with the Respondent who resides within the school compound and after they met the administration wrote to him a letter asking him to produce the title deed but he declined hence they escalated the matter to the Chief. The Assistant County Commissioner referred them to the surveyor who prepared a report in that regard. 7.PW3 William Kipson Kiplagat, the Chairman of the Board of Management at the school stated that in 2016 they found a person residing on the plot. He was asked to vacate but he declined claiming ownership of the land. They reported the matter to the Assistant County Commissioner and police. That the person asked to be given 90 days to vacate but instead of complying he instructed an advocate. 8.PW4 Eston Mwihaga, the Senior Chief stated that upon receiving the report from the school management he summoned the Respondent who showed him a title deed Laikipia/Uaso Narok/916. That the school owned No. 511. Since they did not establish which land belonged to the Respondent he referred them to the District Officer. 9.PW5 No. 26967 PC Mwiti stated that he recorded statements and found that the Respondent had no documents while the school had a title deed for the land. That he visited the school and found that the Respondent had a home in the school and the plot was 916. That he was shown his land by the County Surveyor, but, he did not take it up. 10.Upon being placed on his defence the Respondent stated that he was at Uaso Narok Settlement Scheme where he was allocated land Ref. No. Laikipia/Uaso/Narok/916 by the Settlement Trustee, he paid Kshs.2,500/- and was issued with an allotment letter dated 2001 and he started staying on the parcel of land. That he was showed the portion by the provincial surveyor, Rift Valley. 11.That he filed ELC No. 246 of 2018 whereby the County Land Registrar and the Director of Survey were ordered to amend the land records which was effected hence he continued to occupy the land. 12.He called a witness, the Court Administrator, Nyahururu Law Courts who adduced in evidence a judgment delivered in CM ELC No. 246 of 2018 Alfred Muigai Cheruiyot v BM Kaichakun Primary School, County Land Registrar Laikipia, and Director of Survey. 13.The trial court considered evidence adduced and found that both the Complainant and Accused (Respondent) possessed title deeds for Land Parcel No. Laikipia/Uaso Narok/511 and 916, respectively, of which both parties had absolute legal interests or rights. 14.Further, the court found that the explanation given by the Respondent was satisfactory on how he came to posses the land. That after being allocated the land he was shown the physical location by the government surveyor and he settled on the portion before the school was established. That the issue could be settled by implementation of the judgment of the land court hence the acquittal. 15.The appeal was canvassed through written submissions. Relying on the case of Samsom Omamo Kodunde v Republic [2022] eKLR it is urged by the Appellant that the trial Magistrate erred by accepting the Respondents’ title deed as a colour of right without verifying its existence on the official Area Index Map. 16.That the law requires only a “responsible apprehension” of breach of peace, not an actual physical fight hence unlike the finding of the trial court, refusal to vacate school land and his construction of a permanent house created on ongoing state of conflict and a potential violence. 17.That it was erroneous for the court to find that both parties held titles as it failed to consider the County Surveyor’s evidence that Plot 916 did not exist on the map where the house was built. Hence it makes the Respondent’s possession unlawful despite having a paper title for a ghost plot. 18.The Respondent urged that the prosecution failed to prove essential elements of the charge. That it was not disputed that the Respondent was in actual possession and physical occupation of the subject land. That in the case the Complainant was not the lawful owner of the land. Reliance is placed on the case of Abraham Lonyangot & Another v Republic [2012] KEHC 1080 (KLR) where it was held thus;“The appellants could not be said to be guilty of forcible detainer yet the land is not registered in the name of the complainant or lawfully possessed by himself thereby giving him the colour of right thereof to the exclusion of the appellants or any other person.” 19.That the Complainant did not have a lawful right to the land while the Respondent demonstrated the right over the land through a decision in Nyahururu CM ELC 248 of 2018 which was in his favour a decision that was not appealed. That the court directed that the boundary between land parcels No. Laikipia/Uaso Narok/511 and Laikipia/ Uaso/916 be demarcated and the relevant map be amended. 20.This is a first appellate court whose primary duty has been summed up in various authorities. It is a court that must subject entire evidence adduced before the lower court to a fresh and exhaustive scrutiny so as to come up with its own conclusion bearing in mind that it had no opportunity to see or hear witnesses who testified. In Okeno v Republic [1972] EA 32, that particular duty was stated thus;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 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 v. R., [1957] E.A. 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. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 21.The Respondent was stated to have contravened Section 91 of the Penal Code which 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 misdemeanour termed forcible detainer. 22.The Respondent herein was stated to have accessed the land in issue and on being notified to leave he declined. Therefore, for him to be culpable the prosecution was duty bound to prove elements constituting the offence of forcible detainer. 23.In Albert Ouma Matiya v Republic [2012] KEHC 2661 (KLR) Kimaru J (as he then was) stated that;“The ingredients required to establish the charge of forcible detainer under Section 91 of the Penal Code are as follows: the prosecution must establish that the accused is in actual possession of the parcel of land which he has no right to hold possession of. The prosecution will establish this if it adduces evidence which proves that the accused has no title or legal right to occupy the land. Secondly, the accused must be in occupation of the parcel of land in a manner that is likely or causes reasonable apprehension that there will be breach of peace against the person entitled by law to the possession of the land.” 24.In Julius Edapal Ekai v Republic [2018] KEHC 7752 (KLR) Riechi J stated that;“A literal reading of Section 91 of the Penal Code shows that the prosecution will only prove an offence of forceful detainer against an accused person if it demonstrates that:-i.A Person has actual possession of landii.The Person has no right over the landiii.The Act of possession is against the interests of the legal owner, or the person legally entitled to the land andiv.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 peace.” 25.Evidence adduced is that the Respondent is in possession of land claimed to belong to the Complainant. Evidence on record is that the school applied for allotment in the year 2000 when the Respondent had already settled on the disputed portion. It is however argued that the Respondent is in possession of the portion without any colour of right. 26.The Appellant adduced in evidence a title deed for Laikipia/Uaso Narok/511 measuring 3.90 hectares issued to Kiachakun Primary School on 24th May, 2015, while the Respondent adduced in evidence a title deed for Laikipia/Uaso Narok/916 measuring 0.59 hectares in the name of Alfred Mugai Cheruiyot issued on 13th October, 2004. The explanation given by the Respondent is that the portion occupied was identified by the County Surveyor. Claiming legal ownership of the portion, he argued that he moved to a civil court where he sued the Board of Management, Kaichakun School (Complainant) the County Land Registrar – Laikipia, Director of Survey and the Attorney General. The Defendants did not defend the suit and in its judgment dated the 8th day of May, 2019, the court directed the Land Registrar and Director, Survey, to carry out survey and demarcate the boundary between land parcel Laikipia/Uaso/Narok/916 and Laikipia/Uaso/ 511 and to amend the relevant Index Map and the cards. 27.Two weeks later or thereabout, the Respondent was arraigned in a criminal court. Neither the County Surveyor nor the Land Registrar were called by the prosecution to testify to clarify circumstances under which the Respondent legally owns Plot No. Laikipia/Uasu/Narok/916 and how he settled where he was made to understand was his entitlement some eleven years before plot No. Laikipia/Uasu/Narok/511 was allocated to the Complainant. In Bukenya & Others v Uganda [1972] E.A.549, the East African Court of Appeal held that:i.The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.ii.The court has the right, and the duty to call any person whose evidence appears essential to the just decision of the case.iii.Where the evidence called barely is adequate the court may infer that the evidence of uncalled witness would have tended to be adverse to the prosecution.” 28.This is a case where the prosecution was responsible for presenting material evidence and witnesses to court so as to leave no doubt as to the Respondent’s guilt but they fell short of that requirement. The occupation of the portion by the Respondent was under a belief of having a legal right over the portion. This is clearly a civil matter. It calls upon the surveyor and Land Registrar to comply with the orders granted in the Land and Environment Court. 29.That being the case it was erroneous for the prosecution to settle for the charge of forcible detainer. The Complainant should have resorted to have the civil dispute determined so that the question of eviction could be explored. 30.In the premises, it is the finding of this court that the appeal is bereft of merit. Accordingly, I decline to grant orders sought. 31.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE, 2026.......................L.N. MUTENDEJUDGE