[2023] KEHC 23345 (KLR)

Republic v Opondo (Criminal Appeal E014 of 2022) [2023] KEHC 23345 (KLR) (13 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23345 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Appeal E014 of 2022

WM Musyoka, J

October 13, 2023

Between

Republic

Appellant

and

Charles Otieno Opondo

Respondent

(Appeal from the judgment of Hon. PY Kulecho, Senior Resident Magistrate, SRM, in Busia CMCCRC No. 1959 of 2019, of 21st April 2022)

Judgment

1. The respondent had been charged before the primary court, of the offence of forcible detainer, contrary to section 91 of the Penal Code, Cap 63, Laws of Kenya. The particulars of the charge were that on 30th May 2019, at Nyamuanga Village, in Butula Sub-County, within Busia County, without colour of right, he held possession of Marachi/Bumala/3251, belonging to Joseph Ogonda Murabula, in a manner likely to cause reasonable apprehension of peace against the said Joseph Ogonda Murabula, who was in law entitled to possession of that property. A trial was conducted, where 7 witnesses testified.

2. PW1, Joseph Murabula, was the complainant. He described himself as the registered proprietor of Marachi/Bumala/3248 and 3251, who acquired title deeds to the same on 30th May 2019. He said that he bought the same from 3 individuals, being Alfred Juma Makeinda, Lucas Ngesa Onyango and James Oduor Onyango, being a brother and sons of the deceased in P&A No. 139 of 2010. He accused the respondent of preventing him from occupying the land, and that he had refused to vacate from the lands, and in fact put up a structure on the land. He said that he did not allow the 2 to occupy the property. He stated that the 2 parcels of land were hived off Marachi/Bumala/274, which were previously owned by 3 people, with each holding a share each. He said that the same was part owned by the late Makanda Onyango, the father of 2 of the sellers and a brother of the others. He said that he only transacted with the family of the late Makanda Onyango, and was unaware of the other owners. He said that he purchased the 2 parcels from an intending purchaser who was in occupation. He conceded that the person who sold the land to him had no right to sell the land to him. He stated that he financed the succession process. He said that the respondent put up a permanent structure in April 2010, at a time when he had not obtained title to the property, as he acquired title in May 2019. He said that he did not know the accused persons in court, he said 2010 there was maize on the lands, and he reported the forcible detainer in August 2019, and the forcible detainer commenced much later.

3. PW2, Washington Odhiambo, a Deputy Court Manager at Busia Law Courts, produced the court file in Busia HCP&A No. 139 of 2010, in the matter of the estate of the late Maganda Onyango, where Alfred Juma Makanda was the administrator. The cause was commenced in 2010, and the grant was confirmed in 2011. The property distributed was Marachi/Bumala/274. The complainant, PW1, was named as one of the beneficiaries at the confirmation, getting 2 acres, with 2 other beneficiaries getting the rest. He stated that as at 23rd February 2010 Marachi/Bumala/274 was registered in favour of Oduor Onyango, Maganda Onyango and Andrea Buluma, with each entitled to a third each. He stated that there was nothing on record indicating that only one third of Marachi/Bumala/274 was subject to the probate proceedings, yet the listed beneficiaries were entitled to the one third belonging to the deceased. He stated that the family of the late Maganda Onyango benefited from the entire property, and the other 2 families were left out.

4. PW3, James Oduor Onyango, explained that Marachi/Bumala/274 belonged to his grandfather, the late Maganda Onyango, who was survived by his father, Alfred Juma and Onyango Makanda. He said that administration was taken out by Alfred Juma. He said that he knew the respondent, and they were not related. He explained that his late father had sold land to Oketch, who subsequently sold 2 acres to PW1. He said that there was an agreement, and that at succession PW1 got his 2 acres, but the respondents refused to give him access and right to occupy. He accused the respondent of invading the land. at cross-examination, he stated that Marachi/Bumala/274 was previously co-owned by his grandfather and Oduor Onyango and Andrea Buluma. He stated that the portion transmitted out of Marachi/Bumala/274 was just a third of it. He said that no beneficiary was disinherited. He identified the respondent as a descendant of one of the 3 co-owners of Marachi/Bumala/274. He said that the respondent had encroached on Marachi/Bumala/274, yet he had land elsewhere. He explained that the 2 parcels of land belonged to Oketch, and that the respondent encroached on them after Oketch sold them to PW1. He could not tell for how long the respondent had encroached on the land, neither could he tell the year when they sold the land to PW1. He said that they did not sell the portion that the respondent was entitled to, but their share.

5. PW4, Lucas Ngesa Onyango, testified that Marachi/Bumala/274 originally belonged to 3 individuals, being Maganda Onyango, Andrea Buluma and Oduor Onyango. He said that the portion sold to PW1 measured 2 acres, and the agreement was signed by Alfred Juma, Lucas Ngesa Onyango and Oduor Onyango. He described the respondent as a neighbour. He stated that the respondent was residing on their land, yet he had land elsewhere. He said that the grandfather of the respondent was not entitled to Marachi/Bumala/274, but another parcel of land, and that when he died his remains were interred on Marachi/Bumala/307. He said that the respondent put up his structure on Marachi/Bumala/274 in 2010, at a time when PW1 was yet to get a title deed to the land he had bought. He said that the respondent entered the land in 2010, and not 2019. He denied that they had disinherited some beneficiaries.

6. PW5, Cyprian Owino Nayema, was the local Assistant Chief. He said that he was approached in 2010, by PW4 and Ajwang, who wanted to take out letters of administration on the estate of their father. They informed him that they intended to sell 2 acres out of Marachi/Bumala/274, to raise funds for the succession exercise. He explained that the person who intended to buy the land was Alex Murabula. He established that Marachi/Bumala/274 was owned equally by Andrea Buluma, Makanda Onyango and Odouri Onyango. He stated that PW4 , Ajwangi and Alfred Juma intended to distribute the one third of Marachi/Bumala/274, due to their father. He stated that Marachi/Bumala/274 measured 22 acres in total, and one third of it would amount to 7. 5 acres. He said that he visited the family, and at that meeting the respondent was present, although he was not entitled to a share of Marachi/Bumala/274 as he was not a grandchild of the 3 co-owners of Marachi/Bumala/274. He wrote the letters required for succession purposes, and also ensured that the previous owner was refunded what he had paid for the same land. during cross-examination, he stated that he was not aware that the respondent as related to the co-owners of Marachi/Bumala/274, and that the said co-owners had given a portion of Marachi/Bumala/274 to the grandfather of the respondent, who was their brother. He said that the respondent was in occupation of the disputed parcel of land, where he had put up permanent structures. He said that he occupied in 2010, and not 2019, and that PW1 had never occupied the land.

7. PW6, Alex Oloo Murabula, was a brother of PW1. He stated that PW1 bought land from PW4 and James Oduori Onyango and Lucas Ngesa in January 2010. He stared that he was one of the witnesses to the said sale. He said that there was maize on the land, planted by Augustine Oketch, who had previously bought the land, and made a part-payment. He stated that PW1 bought the land, but someone was in occupation. He reported to the Chief in 2010, and to the police in 2019, who moved in and arrested and charged the respondent, who was in occupation. He stated that the land had 2 titles, Marachi/Bumala/3248 and 3251, but could not tell whether there was a boundary.

8. PW7, No. 78872 Police Corporal Paul Ngesa, investigated the case. He stated that when he arrested the respondent, he had maintained that the land in question was ancestral.

9. The appellant was put on his defence, vide a ruling that was delivered on 26th September 2021. He made a sworn statement, as DW1. He denied the charges. He said Marachi/Bumala/274 was registered in the names of his granduncles, Andrea Buluma Onyango, Makanda Onyango and Oduor Onyango, brothers of his grandfather, Damiano Okumu Onyango. He said that the registration happened when his grandfather was away in Nakuru, and when he came back his brothers, the registered proprietors gave him a portion of the land. He said that he put up a permanent house on Marachi/Bumala/274 in 2010. He said that he heard in 2019 that it had been sold to a third party, and had been subdivided into Marachi/Bumala/3251 and 3252. He said that he had resided on the land since 2010. He said he was not aware of the succession proceedings, and was not privy to them.

10. DW2, Josephine Anyango Opondo, was the mother of the respondent, DW1. She said that she and her family resided on Marachi/Bumala/274. She stated that the respondent put up a permanent house on the land in 2010. He said that he was not aware whether representation had been taken out with respect to the property, adding that he had no authority to sell the land. She said that he did not inform them that he was selling the land. She stated that her late father-in-law was not one of the registered proprietors of Marachi/Bumala/274. She also stated that she did not reside on Marachi/Bumala/3248 and 3251.

11. DW3, Francis Kinyoo Okumu, was an uncle of the respondent, being a brother of his father. He said that his father, the grandfather of the respondent, was a brother of the registered proprietors of Marachi/Bumala/274 . He said that his father had been shown some 3. 5 acres on Marachi/Bumala/274 by his brothers, and the father of the respondent was in occupation of one of the portions since 1979. He stated that no one else tilled that land since then. He said that the land was still registered in the name of his 3 granduncles, and that he was unaware that it had been subdivided. He said that he was also unaware that succession had been done on Marachi/Bumala/274.

12. In its judgment, the trial court found the respondent not guilty of the offence, on grounds that there was no tangible evidence that the respondent did anything tangible on the date it is alleged he committed the offence, to warrant is being prosecuted.

13. The appellant was aggrieved, and brought the instant appeal, founded on several grounds: the case of forcible detainer was proved beyond reasonable doubt, the court erred in finding that a notice to vacate had not been properly served, section 91 of the Penal Code with respect to breach of the peace, the trial court erred in not finding that the respondent had entered and remained on the land without colour of right, and taking into account extraneous issues.

14. The appeal was canvassed by way of written submissions, following directions given on 29th June 2023.

15. The appellant submitted around 3 issues: ingredients of the offence, application of the doctrine of adverse possession and breach of the peace. Albert Ouma Matiya vs. Republic [2012] eKLR (Kimaru, J) and Julius Edapalekai vs. Republic [2018] eKLR (Riechi, J) are cited with respect to the ingredients of the offence. Section 7 of the Limitations of Actions Act, Cap 22, Laws of Kenya, sections 26 and 28(h)(j) of the Land Registration Act, No. 3 of 2012, Kweyu vs. Omuto [1990] KLR 709 (Gicheru, J) and Ali vs. Attorney-General [2007] eKLR are cited on adverse possession. R. vs. Howell [1981] 3 All ER 383[1982] 1 QB 416 (Watkins, LJ) and Thomas Igai Maseke & 4 others vs. Republic [2021] eKLR (Gikonyo, J) are cited with respect to breach of the peace. On his part, the respondent supports the decision of the trial court, and has also cited R. vs. Howell [1981] 3 All ER 383[1982] 1 QB 416 (Watkins, LJ).

16. On the first ground, that the appellant had proved the offence of forcible detainer beyond reasonable doubt, the appellant has pointed at the decisions in Albert Ouma Matiya vs. Republic [2012] eKLR (Kimaru, J) and Julius Edapalekai vs. Republic [2018] eKLR (Riechi, J), and I agree that the elements of the offence would be proof that the complainant was the legal owner of the property in dispute, the accused person was in unlawful occupation or possession of the land, the accused resisted attempts to have him deliver vacant possession, and that the possession or occupation was likely to cause breach of the peace. The trial court was alive to those elements, for Albert Ouma Matiya vs. Republic [2012] eKLR (Kimaru, J), Julius Edapalekai vs. Republic [2018] eKLR (Riechi, J) and Julius Leparan Kiptingos vs. Republic [2021] eKLR (Gikonyo, J), which discuss the elements of the offence of forcible detainer, had been placed before the court. In its analysis, the trial court was satisfied that PW1 was the registered owner of the property, and was entitled to it. I note that the trial court did not address itself on whether the respondent was in unlawful possession. The trial court determined the matter on the basis of whether there was evidence that the conduct of the respondent could cause breach of the peace. It would appear that the court was satisfied that there was unlawful occupation and possession, given that PW1 had a title deed to the land, and was entitled to possession. It followed that whoever was in possession, must have been so in possession unlawfully.

17. Was the trial court wrong in the way it dealt with the material on breach of the peace? I do not think so. The charge was that he was in forcible detainer of the land on 30th May 2019 in a manner likely to cause a breach of the peace. No evidence was led on what transpired on 30th May 2019, to support the charge that the respondent was in forcible detainer in a manner likely to cause a breach of the peace. The only relevant thing about 30th May 2019 is that that is the date when the title deed for the subject property was issued to PW1. It cannot be that on the date when the title deed was issued is also the effective date when the respondent committed the offence. Prior to 30th May 2019, PW1 could not assert any rights over the property. Prior to that date, the property was in the name of a dead person and others. The only time he could assert any rights over the property was after the title deed came out in his name. The respondent did not enter the land on 30th May 2019, but in 2010, when PW1 had no title to the land. No credible evidence was led as to whether any notices were ever given to the respondent to require him to vacate. PW5, the Assistant Chief, from what I can see on record, did not testify to giving any notice to the respondent after 30th May 2019, when the title deed was issued to PW1. So, there was nothing to show that the respondent acted in any manner on 30th May 2019, which would have caused breach of the peace. After all, it was common ground that PW1 had never had possession of the land at any time, which the respondent had interfered with or attempted to interfere with, which could have, no doubt, disturbed the peace.

18. The respondent has placed the decision, in Parmelita Paranga & another vs. Republic [2021] eKLR (Mwita, J), before me, although the same is not cited in his written submissions. This decision is important, for it points out that issues that relate to forcible detainer often revolve around civil matters rather than criminal elements. This is a case where PW1 got registered as proprietor of portions of Marachi/Bumala/274, on 30th May 2019, when the respondent was in possession since 2010. The criminal process is being employed here to force the respondent out of the land, yet the civil process has elaborate provisions on evicting persons in unlawful possession of land. See sections 151 of the Land Act, No.6 of 2012. There is a certain level of overlap between the criminal process and the civil process, with respect to obtaining vacant possession. The question is, when should the criminal process be employed to secure vacant possession? A person who acquires or buys land, where certain persons are in occupation or possession thereof, the correct procedure should be to employ the civil process to get them out of the land. However, where the persons enter the land after the purchase, in a manner amounting to unlawful encroachment, that would amount to a criminal act, the act of criminal trespass, and the criminal process should be employed to deal with them. In the instant case, PW1 was registered as owner, of parts of Marachi/Bumala/274, when the respondent was already in occupation and possession. The criminal process was not, therefore, the proper way to approach the matter. PW1 should have, instead, taken advantage of the civil process, provided for in sections 152A to 152I of the Land Act, to evict him. The right, of PW1, to the land, accrued after the respondent had already taken possession, and no criminal liability could accrue against him. When the respondent entered the land in 2010, he did not walk over the rights of PW1, with relation to the land, for PW1 had no enforceable rights to the land until 30th May 2019, when he was registered as proprietor.

19. For avoidance of doubt, sections 152A to 152I of the Land Act, provide as follows:152A.Prohibition of unlawful occupation of land.A person shall not unlawfully occupy private, community or public land.

152B.Evictions to be undertaken in accordance wit the Act.An unlawful occupant of private, community or public land shall be evicted in accordance with this Act.

152C.Eviction Notice to unlawful occupiers of public landThe National Land Commission shall cause a decision relating to an eviction from public land to be notified to all affected persons, in writing, by notice in the Gazette and in one newspaper with nationwide circulation and by radio announcement, in a local language, where appropriate, at least three months before the eviction.

152D.…

152E.Eviction Notice to unlawful occupiers of private land.(1)If, with respect to private land the owner or the person in charge is of the opinion that a person is in occupation of his or her land without consent, the owner or the person in charge may serve on that person a notice, of not less than three months before the date of the intended eviction.(2)The notice under subsection (1) shall -(a)be in writing and in a national and official language;(b)in the case of a large group of persons, be published in at least two daily newspapers of nationwide circulation and be displayed in not less than five strategic locations within the occupied land;(c)specify any terms and conditions as to the removal of buildings, the reaping of growing crops and any other matters as the case may require; and(d)be served on the deputy county commissioner in charge of the area as well as the officer commanding the police division of the area.

152F.Application to Court for relief.(1)Any person or persons served with a notice in terms of sections 152C, 152D and 152E may apply to Court for relief against the notice.(2)The Court, after considering the matters set out in sections 152C, 152D and 152E may-(a)confirm the notice and order the person to vacate;(b)cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just;(c)suspend the operation of the notice for any period which the court shall determine; or(d)order for compensation.

152G.Mandatory procedures during eviction.(1)Notwithstanding any provisions to the contrary in this Act or in any other written law, all evictions shall be carried out in strict accordance with the following procedures-(a)be preceded by the proper identification of those taking part in the eviction or demolitions;(b)be preceded by the presentation of the formal authorizations for the action;(c)where groups of people are involved, government officials or their representatives to be present during an eviction;(d)be carried out in a manner that respects the dignity, right to life and security of those affected;(e)include special measures to ensure effective protection to groups and people who are vulnerable such as women, children, the elderly, and persons with disabilities;(f)include special measures to ensure that there is no arbitrary deprivation of property or possessions as a result of the eviction;(g)include mechanisms to protect property and possessions left behind involuntarily from destruction;(h)respect the principles of necessity and proportionality during the use of force; and(i)give the affected persons the first priority to(2)The Cabinet Secretary shall prescribe regulations to give effect to this section.

152I.Demolition of unauthorized structures.Where the erection of any building or execution of any works has commenced or been completed on any land without authority, the competent officer shall order the person in whose instance the erection or work began or was carried, to demolish the building or works, within such period as may be specified in the order.”

20. While still on sections 152A to 152I of the Land Act, the elaborate provisions on eviction, or getting vacant possession of land held unlawfully, would suggest that it would be the more prudent to approach to deal with such situations, rather than employing the penal provisions in the Penal Code. It will be noted that section 152A of the Land Act makes it unlawful to occupy private, community or public land. Unlawful occupation of such land is, however, not criminalized, under that law, instead, the law sets out a process for gaining or regaining possession by the owner. It could be because unlawful occupation of land is criminalized under section 91 of the Penal Code, the drafters of the Land Act did not see the need for it to deal with it. It could also be that the Land Act sets out a more modern approach to it, which avoids the criminalization approach, for a civil approach.. The trial courts perhaps ought to shy away from criminally penalizing such unlawful occupiers of land, and point the parties to the provisions under sections 152A to 152I of the Land Act. The Land Act is a more recent legislation, it became effective in 2012, while the Penal Code is as old as 1948. The approach under the Land Act should be considered as the more palatable.

21. On the second ground, about the trial court erring in finding that no proper notice had been given to vacate, the offence was allegedly committed on 30th May 2019. 30th May 2019 is also the date when PW1 was registered as proprietor of the subject land. It was from 30th May 2019, onwards, that he could legitimately give valid notices to the respondent to vacate. So, how could he give valid notices to the respondent to vacate prior to 30th May 2019, when the offence was allegedly committed, if that 30th May 2019 was also the effective date when such valid notices could issue? Whether a notice to vacate was given or not would be of no moment. If any notice was issued prior to 30th May 2019, it was and must have been of no effect, in the circumstances.

22. On the third ground, about breach of the peace, the argument is that the trial court erred in its findings on breach of the peace. I have comprehensively dealt with this ground at paragraph 18 hereabove.

23. The fourth ground is about the trial court not finding that the respondent entered the land without colour of right. The right of PW1 to have possession and occupation of the subject land accrued from 30th May 2019. It was only after 30th May 2019 that he could complain that the respondent was in possession and occupation in a manner that was inconsistent with his rights as registered owner. The respondent took possession in 2010. By that time PW1 was not the registered proprietor of the land. PW1 had no proprietorship rights that he could exercise against the respondent in 2010, when the respondent entered the land. The land then belonged to a dead person, and administration of the estate was just about to commence. The only person who could raise issue with the manner the respondent entered the land was the administrator of the estate. The administrator did not raise issue with him. Did the respondent have colour of right when he entered in 2010? That is an issue that ought not be determined here, for PW1 had no right himself to the land, as against the respondent. If these proceedings were at the instance of the administrator of the estate, then the question would be relevant. Even then, it would be inappropriate to raise the issue in criminal proceedings, in a case where the respondent is asserting ancestral rights. The issue, as to whether such ancestral rights arose, belonged to the probate or civil court, not a criminal court, and once the same were raised, the issues before the court ceased to fall within the purview of a criminal court. They created a doubt, with respect to whether the respondent had the requisite the mens rea for the offence charged, which could only be resolved in favour of the respondent.

24. The fifth ground is about the trial court considering extraneous matters in the judgment. None of the extraneous grounds have been pointed out in the written submissions placed on record.

25. The appellant submitted extensively on adverse possession. I have very closely perused the judgment of the trial court, and I have not come across any section of it where the matter of adverse possession arises. As the trial court did not deal with it, it is not an issue that ought to arise on appeal, and I shall not address my mind to it.

26. I believe I have said enough to demonstrate that there cannot possibly be any merit in the appeal herein. The trial court came to the right and correct conclusions. I uphold the dismissal of the charge, and affirm the acquittal of the respondent. The appeal is hereby dismissed. Orders accordingly.

JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 13THDAY OF OCTOBER 2023W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AppearancesMs. Chepkonga, instructed by the Director of Public Prosecutions, for the appellant.Ms. Sibika, instructed by Bogonko Otanga & Company, Advocates for the respondent.