[2024] KEHC 5714 (KLR)

Republic v Njuki (Criminal Appeal E023 of 2023) [2024] KEHC 5714 (KLR) (22 May 2024) (Judgment)

Neutral citation: [2024] KEHC 5714 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E023 of 2023

LM Njuguna, J

May 22, 2024

Between

Republic

Appellant

and

Joseph Kambo Njuki

Respondent

(Appeal arising from the decision of Hon. S.K. Ngii (PM) in the Magistrate’s Court at Siakago Criminal Case No. E066 of 2021 delivered on 18{{^th}} July 2023)

Judgment

1. The appellant filed a petition of appeal dated 27th July 2023 seeking that the acquittal be set aside on grounds that the trial learned magistrate erred in law and fact;a.By acquitting the respondent under section 210 of the Criminal Procedure Code yet all the elements of the offence were proved beyond reasonable doubt;b.In finding that the breach of peace can only occur when there is use of a weapon;c.By disregarding the fact that unlawful occupation of the suit land by the respondent amounts to a breach of peace;d.In holding that the complainant’s recourse lies in a civil case whereas the offence of forcible detainer was established and proved;e.By acquitting the respondent despite the overwhelming evidence adduced by the prosecution; andf.By disregarding the strong prosecution evidence.

2. 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 04th October 2021 at Mamiji location within Mbeere subcounty in Embu county, the respondent, without colour of right, took possession of land parcel numbers Embu/Gangara/3121, 3584 and 3585 in a manner likely to cause breach of peace against Gerald Njeru Josphat who is entitled by law to possess the said land.

3. The respondent pleaded not guilty and a plea of not guilty was duly entered. The prosecution called witnesses in support of its case.

4. PW1 was the complainant who stated that in 2020, he discovered that the respondent had entered his land and had built a temporary house and a toilet and he asked his family to tell him to vacate, to no avail. That he bought the 7-acre piece of land parcel number Embu/Gangara/3121 from an uncle of the respondent, one John Nyaga. That the respondent claimed that his father used to live on and farm the said land. That the respondent cut trees on the land, planted miraa on a portion of it, leased the rest out to other people to farm it and he also grazes his goats on the land. On cross-examination, he denied having employed the respondent and stated that the respondent’s father was not buried on the land.

5. PW2 was John Nyaga Sigiti who stated that PW1 bought the said land from him and that the transaction was done in 3 phases where he bought 7 acres, 5 acres and 4 acres. That the land was subdivided before the sale. That when the land was sold, his brother’s wife was living on it but he asked her to vacate and settle on another portion given to his brother by their late father. That when his brother died, they buried him on the piece of land given to him by their father. He stated that he sold all the land he received from his late father. On cross-examination he stated that the respondent’s father was buried on parcel number 1122 with his permission even though the land belonged to him (PW2).

6. PW3, Sgt. Simon Mutisya, the investigating officer, stated that the matter was reported at Siakago Police Station by the complainant who narrated the facts as stated hereinbefore. That the complainant produced documents to show that he was the legitimate owner and the same were taken to the lands office for verification. He produced the greencards as evidence showing that indeed he bought the land from PW2, who corroborated the complainant’s statement. That the respondent was arrested and charged with the offence as he had denied the complainant access to his land. That the respondent had destroyed a fence and planted miraa on a portion of the land which comprises of parcel numbers Embu/Gangara/3121, 3584 and 3585. That the respondent and the complainant are cousins and both are nephews of PW2.

7. At the close of the prosecution’s case, the court retreated to consider whether or not, from the evidence, the respondent had a case to answer. The trial magistrate relied on the provisions of section 91 of the Penal Code and the cases of Richard Kiptalam Biengo v Republic (2015) eKLR, Albert Ouma Matiya v Republic (2012) eKLR and Ramanlal Trambaklal Bhatt v Republic [1957] EA 332 and acquitted the respondent on the ground that the appellant had failed to establish a prima facie case and the elements of the offence were not proved.

8. The court directed the parties to file their written submissions but only the appellant complied.

9. In its submissions, reliance was placed on the elements of the offence as provided for under section 91 of the Penal Code and the case of Julius Edapal Ekai v Republic (2018) eKLR. It was its submission that the complainant was the proven legal owner of the land which the respondent deliberately took over and denied the complainant access thereof. PW1 testified that he tried to make the respondent vacate the property but he did not succeed. Reliance was placed on the definition of breach of peace according to the Black’s Law Dictionary and the case of Steel & Others v The United Kingdom (1998) ECHR 95 as cited in the case of R. v Howells (1982) 1 QB 416. That there is breach of peace arising from the failure by the respondent to vacate the land despite several attempts to remove him.

10. That the appellant produced sufficient evidence to build a prima facie case and that the respondent ought to have been placed on his defense. Further reliance was placed on the case of Thomas Igai Maseke & 4 others v Republic (2021) eKLR. The appellant argued that breach of peace is not only deduced from assault, affray or riot, but also extends to disturbance which in this case was caused when the respondent cut down trees from the complainant’s land. it relied on section 193A of the Criminal Procedure Code which provides that the facts in a criminal case shall not be directly or substantially stayed or delayed by civil proceedings involving the same parties. It urged the court to allow the appeal.

11. The issue for determination is whether the trial court erred in acquitting the respondent.

12. In order to determine the issue herein, the court will re-evaluate the evidence adduced at trial. This was the position in the case of David Njuguna Wairimu v Republic (2010) eKLR by the Court of Appeal as follows:-“The duty of the first appellate court is to analyse 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.”

13. Section 91 of the Penal Code provides for the offence of forcible detainer as follows:“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.”

14. In the case of Richard Mwangiri Ndoro v Republic (2005) eKLR set out the ingredients of the offence of forcible detainer as follows:“The offence of forcible detainer is committed where-i.a person is in possession of land without colour of right;ii.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;iii.the breach in question must be directed at a person entitled by law to the possession.”

15. PW1 testified that he is the owner of the land in question, which has been taken over by the respondent and his efforts to remove the respondent from the said land have failed. PW3 also confirmed that he verified the ownership documents produced by the complainant. PW2 stated that the respondent has been living on the complainant’s land. That he is the one who sold the said land to the complainant in 3 transactions in the manner explained. Both PW1 and PW3 stated that the respondent had cut down some trees and had planted miraa stems on a portion of the land. PW1 also said that the respondent has leased out a part of the land to third parties to farm and that he also grazes his goats on the land on which he has built a temporary house and a toilet.

16. From the testimony, indeed the respondent is in possession of the complainant’s land without colour of right. This means the complainant is the owner of the land and the respondent does not have any legal right to possess the land. The other issue is breach of peace or reasonable apprehension of breach of peace. In the case of R v Howell [1982] QB where it was held that:“There could not be breach of the peace unless an act was done or threatened to be done which either actually harmed a person or, in his presence, his property or was likely to cause such harm or which put someone in fear of such harm being done.”

17. The 9th Edition Black’s Law Dictionary defines breach of peace as:“The criminal offense of creating a public disturbance or engaging in disorderly conduct, particularly by making an unnecessary or distracting noise.”

18. From the evidence, there is not much by way of this argument. There is no proof that the respondent did or attempted to cause breach of peace. When cross-examined, PW1 stated that the respondent did not chase him away from the property while armed. I find this element to be unfulfilled, therefore failing to satisfy the required standard of proof.

19. The appellant submitted citing section 193A of the Criminal ProcedureCode and faulted the trial court for stating that the complainant’s recourse lies within a civil suit. The evidence led shows that there is an ongoing civil case between the complainant and the respondent about the suit land herein. In my view, the trial court did not err in its finding. In the end, I find that the appeal lacks merit and it is hereby dismissed.

20. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 22ND DAY OF MAY, 2024. L. NJUGUNAJUDGE........................................................................for the Appellant........................................................................for the Respondent