[2022] KEHC 17216 (KLR)

Republic v Tenar (Criminal Appeal E028 of 2021) [2022] KEHC 17216 (KLR) (14 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17216 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E028 of 2021

SM Githinji, J

December 14, 2022

Between

Republic

Appellant

and

Elias Kiti Tenar

Respondent

(Appeal from the Judgment in Criminal Case No. 319 of 2017 of the Senior Principal Magistrate’s Court at Kilifi Law Court- J. M. Kituku, SPM dated 19th July, 2021)

Judgment

CORAM: Hon. Justice S. M. GithinjiK. Lughanje for the Appellant in personMwangi for the State 1. The Appellants was charged with the offence of Conspiracy to defraud contrary to Section 317 of the Penal Code. The particulars of the offence being that on the 28th day of May, 2017 at Ombachi Moriasi & Company Advocates offices in Kilifi town within Kilifi County the accused with the intent to defraud MacDonald Barawa Mwangala of his parcel of land No Kilifi/Ngerenya/906 entered into a lease agreement in respect to the said parcel of land knowing that the said land belonged to the said MacDonald Barawa Mwangala.

2. In the second count, 1st Accused person was charged with the offence of Forcible Detainer Contrary to Section 92 as read with section 36 of the Penal Code. The particulars of the offence being that the 1st Accused person on or about the 27th day of July, 2017 at Ngerenya Village within Kilifi County took possession of parcel No Kilifi/ Ngerenya/ 906 registered in the name of Macdonald Barawa Mwangala with intention to cause a breach of peace to the said Macdonald Barawa Mwangala.

3. The state being aggrieve by the Judgment of the trial court preferred and appeal on the following grounds;1. That the learned trial Magistrate erred in law and in fact in finding that the prosecution had failed to prove its case beyond reasonable doubt.2. That the learned trial magistrate erred in law and in fact by holding that the existence of a civil land ownership dispute before the environment and land court between the victim and the 2nd accused/ respondent exonerates the said accused persons from any criminal liability.3. That the learned trial magistrate erred in law and fact by holding that when the victim took ownership of the land in dispute, the lease agreement dated May 28, 2015 was in force.4. That the learned trial magistrate erred in law and fact by holding that the 1st accused person was not in the land illegally.5. That the learned trial magistrate erred in law by holding that the mens rea of the offence of forcible detainer as set out in Section 91 is the intention to cause breach of peace.6. That the learned trial magistrate erred in law and fact by holding that the accused persons/respondents had a legal right to possession of the land.

Background 4. PW1 MacDonald Barara told the court that he inherited Plot No Kilifi/ Ngerenya/906 from Ngarawan Kingi and that he got a title deed to the land in the year 2006. He stated that in July, 2017 he was called by a neighbor who told him that he had seen someone tilling his land. That when he went to the land the next day he saw a tractor and was told that it belonged to Cosimo Rosafia. He also told the court that he asked him why he was cultivating on his land and he said that Elias Kiti Tenar had sold it to him.

5. His testimony was that the said Elias Kiti had at one point requested to stay on the land and that they had an agreement that he moves out of the land with the understanding that the complainant was to buy him land elsewhere. He however refused to move out of the land as agreed.

6. On cross examination, he confirmed having inherited the land from his grandfather which land initially belonged to the Tegoroka Settlement Scheme. He told the court that he has sued the 2nd accused person in land case ELC 298/16 and that there are 2 civil cases in court with regard to Plot No 906. He also told the court that he once charged the land to AFC for a loan and constructed a wooden structure in 2000.

7. PW2 Athumani Chiro Ngoka Surveyor at Kilifi County told the court that he did a survey of the disputed land. That he received a letter from the CID to confirm the status of plot No 906. His testimony was that from the survey stones were on plot 906. That according to the report dated November 2, 2017 the land was differing with the particulars on the maps. He contended that the 2nd report he prepared was with regard to the acreage on the ground which differed with the acreage on the title deed.

8. In cross examination, he stated that in one of the reports he prepared, the acreage on the ground is different from the acreage on the title. That the difference is with regard to width of 20metres on the title and 30 metres on the ground. He testified that plot No 906 did not have beacons and that the court directed him to put beacons on the ground.

9. PW3 Jamrose Kalu Ngurya told the court that his land is plot 931 Kilifi/ Ngerenya/931 and that his first neighbor is PW1 who is on plot No 906. That both parcels of land belonged to their parents who used to cultivate and were allocated the land in 1979. He stated that PW1 was given the land by his grandfather and that he constructed on the land in 2000 and later moved to Kilifi. He confirmed that the 1st accused person was on the land excavating stones.

10. PW4 Felix Nyakundi County Land Registrar Baringo, previously the Kilifi Land Registrar told the court that he had in his possession a title deed in the name of MacDonald Barawa Mwangala issued on 26. 1.2017 and a copy of the Green card which at Entry No 7 shows that the land belongs to MacDonald Barawa issued on 2. 7.2017. He concluded that the land belonged to Mac Donald Mwangara.

11. PW5 Lenard Kaluga informed the court that on July 31, 2017 one Elias Kiti Tenar accompanied by MacDonald Barawa came to his office for the purpose of preparing a sale agreement in respect of Kilifi/ Ngerenya/ 906 where it was agreed that Elias was to vacate the land and be given another portion of land.

12. PW6 Robert Art Nyachiro told the court he drew lease agreement dated May 28, 2015 between one Elias Kiti Tenar and Cosimo Rosafia, the lease agreement was in relation to coral stone quarrying where Elias and Cosino presented themselves as leasor and leasee respectively in relation to Kilifi/ Ngerenyi/ 906. He also told the court that they did not have any title deed. That effort to do a search were in vain as the green card could not be traced.

13. Further, that they presented a letter from the chief dated 27. 5.2015 indicating that Elias Kiti was the owner of the suit property and that he was residing on the suit property together with his mother. It was his testimony that the leasor gave Kshs 50,000/- as a deposit and the lease provided that Kshs 5,000/- was to be paid every month w.e.f June, 2015 with regard to excavation of the coral rocks.

14. At the close of the prosecution case, the trial court found that a prima facie case had been established and the accused were placed on their defence.

15. The accused persons opted to offer no defence and called no witness.

Analysis and Determination 16. This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyse it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial, and should therefore make an allowance for that as was held in the case of Okeno v R (1972) EA 32, Eric Onyango Odeng’ v R (2014) eKLR.

17. I have considered the grounds of appeal, the respective submissions, and the record. I have also subjected the entire evidence to fresh analysis and evaluation and have drawn my own conclusion over the matter. The only issue for determination is whether the prosecution proved its case against the Respondents on the charge of conspiracy to defraud contrary to Section 317 of the Penal Code to the required standard in law.

18. The respondents were charged under Section 317 of the Penal Code which provides for the offence of conspiracy to defraud in the following terms:"Any person who conspires with another by deceit or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public or any person,whether a particular person or not, or to extort any property from any person, is guilty of a misdemeanour and is liable to imprisonment for three years.”

19. The Black’s Law Dictionary 9th Edition at page 351 defines conspiracy as:An agreement by two or more persons to commit an unlawful act coupled with an intent to achieve the agreement’s motive, and (in most states), action or conduct that furthers the agreement; a combination for an unlawful purpose.”

20. In order to proof an offence of conspiracy to defraud, the elements to be proved are the existence of an agreement and the intention to defraud. The first issue to consider is whether or not there was an agreement to execute an unlawful act. An agreement may either be express or implied from the circumstances of the case. In the present case, it was alleged in count one that both the respondents with the intent to defraud the complainant entered into a lease agreement in respect to Kilifi/ Ngerenya/906 knowing that the land belonged to the complainant.

21. In my view and after a close scrutiny of the proceedings, I note that the lease that is the subject of this appeal is one that is dated May 28, 2015. The complainant first became in possession of the land on 29. 8.2006 and the same was later transferred to Fernidad Mwangaka on March 15, 2010 and later transferred to the complainant on January 26, 2017. Ideally, at the time of entering into the lease agreement, the complainant was not in possession of the land which was in possession of a third party who was not called as a witness. The prosecution in essence contends that the lease agreement that was entered between the 1st and the 2nd Respondents was meant to defraud the complainant. I agree with the trial court that at the time of entering into the lease agreement, the complainant was not the owner of the land and as such, he could not rightly be in a position to bring the said complaint against the accused persons.

22. The charge sheet talks of the offence having been committed on the 28th day of May, 2017 and on the other hand, the lease is dated the 28th day of May, 2015. The charge sheet that the accused persons were charged with indicate that the offence took place on or about the 28th day of May, 2017, the lease agreement which is the subject of the offence that they were charged with is the one dated May 28, 2015. I wish to point out that the prosecution cannot at this instance try to pick the date of the commission of the offence that is convenient to them. In the end, I find no reason to interfere with the Judgment of the trial court. The Appeal lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 14TH DAY OF DECEMBER, 2022. .................................................S. M. GITHINJIJUDGEIn the absence of the parties..................................................S. M. GITHINJIJUDGE14/12/2022