[2015] KEHC 5099 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CRIMINAL APPEAL NO. 430 OF 2013

RICHARD KIPTALAM BIENGO…………………….APPELLANT

VERSUS

REPUBLIC……………………………………...…RESPONDENT

(Being an appeal against the conviction and sentence in a judgment delivered in Thika Chief Magistrates’ Court Criminal Case No. 441 of 2010 (Hon. L. Wachira) on 27th October, 2011)

JUDGMENT

The appellant was convicted on two counts of forcible detainer contrary to section 91 as read with section 36 of the Penal Code and giving false information to a person employed in the public service contrary to section 129(a) of the Penal Code.

As for the first count, the appellant is alleged to have been in possession of a piece of land known as Mitubiri/Wempa/Block 1/6496 the property of the members of Kandara Investment Company Limited without any colour of right in a manner likely to cause a breach of the peace against members of that company who are said to have been lawfully entitled to that parcel of land.

In the second count, it was alleged that on 2nd day of April, 2009 at Thika police station in Thika District within Central Province, the appellant informed police constable Rhoda Kamene, a police officer employed in the public service that the title deed to his parcel of land known as Mitubiri/Wempa/Block 1/6496 got lost in December, 2008 which information he knew to be false and thereby caused the said police constable Rhoda Kamene to issue a police abstract, a task that the said police constable Rhoda Kamene ought not to have undertaken, if she knew the true state of facts.

At the conclusion of the trial the appellant was convicted on both counts; he was fined Kshs 30,000/= and in default sentenced to nine months imprisonment on the first count. On the second count he was fined Kshs 10,000/= and in default, he was sentenced to three months imprisonment. In the event the appellant defaulted in payment of the fines, the custodial sentences were to run consecutively. It is against these convictions and sentences that the appellant appealed to this Court.

Although the appellant listed ten grounds of appeal, they can conveniently be summarised into the following grounds:-

The learned magistrate erred in law and in fact by convicting the appellant against the weight of evidence;

The learned magistrate erred in law and in fact in shifting the burden of proof to the appellant;

The learned magistrate erred in law and in fact in disregarding relevant evidence and instead considering extraneous matters and thereby arriving at a wrong decision; and,

The learned magistrate erred in law and in fact by failing to evaluate the evidence at the trial in its entirety.

Section 91 of the Penal Code under which the appellant was charged reads as follows:-

91. 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.

Section 36 of the Code with which section 91 was read deals with the general punishment for misdemeanours thereby implying that the offences with which the appellant was charged were misdemeanours. The proof, rather than the nature, of those offences is the main issue that has been escalated to the present appeal and therefore it is unnecessary at this stage to dwell on any question as to whether or not the alleged offences were misdemeanours.

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:-

(a) A person has actual possession of land;

(b) The person has no right over the land;

(c) The act of possession is against the interests of the legal owner or the person legally entitled to the land; and,

(d) 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 the peace.

It is apparent that an offence under section 91 of the Penal Code revolves around the possession and ownership of land. As far as the case against the appellant is concerned, the land in question was a parcel of land known as Mitubiri/Wempa/Block 1/6496. According to the evidence of Wilson Mburu (PW1),this parcel of land belonged to Kandara Investments Limited which, as far as I can gather from the record, was a land buying company whose main object was to buy land and share it out amongst the company’s members.

In his evidence in chief, this witness testified that the subject matter was previously a government land without any individual claim on it; however, when the company conducted a search on the ownership of the land, it discovered that the parcel had been registered in the name of the appellant. Since the appellant was not a member of Kandara Investments Company Limited, this witness who was then the chairman of this company reported the matter to the police. It was his testimony that when the appellant was arrested, he agreed to surrender the land and indeed he surrendered it to the company and as a result of the surrender, the company is said to have withdrawn the complaint against the appellant. Subsequently the land was transferred from the Government of Kenya to Mitubiri Ranch. In 2009, this parcel of land was allegedly allotted to Mary Njeri Mwangi (PW2) who was said to be a member of Kandara Investment Company Limited.

The witness testified that after this parcel of land was allotted to Mary Njeri Mwangi (PW2), she found out that the appellant was occupying it; it is then that the police are said to have gone to the land and arrested the appellant.

Mary Njeri Mwangi (PW2) herself testified that she had been a member of Kandara Investment Company since 1987 and that when members of the company balloted for their respective parcels of land she was given parcel number 6496. She later found out that the appellant was occupying this parcel of land. When the appellant’s counsel showed this witness a certificate of search showing that her parcel of land was in fact Mitubiri Wempa Block 1/1321, she denied knowing anything about this particular parcel.

Similarly, the secretary of the Company Nelson Ndaru (PW3) testified that Mary Njeri Mwangi (PW2) was allocated this parcel by the company in 2009 apparently after she declined to take an alternative parcel that she had been allocated.

In cross-examination, and when he was shown a letter indicating that the appellant was a member of the company, this witness testified that the appellant could probably have been a shareholder of the Company.

The Thika District Land Registrar, Pamela Muthoni Mutegi (PW4) testified that from the registration records, there were two green cards in respect of land parcel Mitubiri Wempa Block 1/6496; one card showed that the land belonged to the appellant and the other card indicated that the land belonged to Mitubiri Ranching Company. According to the evidence of this witness, it was not normal to have two green cards in respect of the same parcel of land and that in such circumstances it was not possible to tell who the legal owner of the land was.

Police constable Rhoda Kamene Nzioka (PW5) told the court that the appellant had reported at Thika Police station that the title deed to the land in question had been lost and because of this report she issued him with a police abstract to that effect; her counterpart attached to the scene of crime section of the same station corporal Peter Mugambi (PW6) produced photographs showing that the appellant was not only in possession of the land in issue at the material time but that he had also developed it.

The investigating officer Erick Muli (PW7) confirmed that there two green cards in respect of the same parcel of land in issue one of which showed the appellant to be the land’s registered owner. In his view, the appellant’s title was not properly obtained. He also confirmed that survey map indicated that Mary Njeri Mwangi (PW2) owned a parcel of land separate from that owned by the appellant.

When he was put on his defence the appellant opted to give a sworn statement; he testified that he had purchased from Kandara Investment Company two share certificates by virtue of which he became a member of the company and was even elected to represent members of this company who hailed from Mitubiri location. He testified that he legally got the parcel in question and insisted that the land was his.

The appellant told the court that his title deed was lost in 2008 and he made a report to this effect to the police. However, when a new title deed was processed, he could not collect it because the company lodged a complaint against him in respect of this same parcel of land. In order to resolve the dispute between him and the company, the appellant lodged a civil suit in Thika, being civil case No. 1066 of 2009, apparently claiming his title. He was arrested and charged while the case was still pending in the civil court. The appellant denied having ever surrendered his land to the Company as alleged; he also denied that he gave false information to the police officer in respect of his title deed.

Francis Ndungu Kungu (DW2)who testified as appellant’s witness said that he had been a member of Kandara Investment Company since 1974; he confirmed that the appellant had been elected, amongst other officials, to look into affairs of allocation of various parcels of land to the company’s members. This witness also testified that it was also possible to buy a parcel or parcels of land from the original the members of the company.

When this appeal came up for hearing, counsel for the state Ms Keya conceded the appeal and submitted that the offence under section 91 of the Penal Code had not been proved beyond reasonable doubt; according to the learned counsel for the state, ownership of the land in question had not been proved and although the conviction of the appellant appears to have been based on fraud, it was not established that the appellant was fraudulent in acquisition of the title to the land in question. As the main issue appears to have been about a dispute over ownership of land, counsel submitted that the proper forum for resolution of this dispute was in the civil court.

Considering the evidence proffered at the trial I would agree with the learned counsel for the state that the main ingredient in the offence of forcible detainer contrary to section 91 of the Penal Code, which is legal ownership of the land, was not proved beyond reasonable doubt.

The Land Registrar, Pamela Muthoni Mutegi (PW4),who was in charge of the Thika registration district where the land parcel Mitubiri Wempa Block 1/6496was registered, testified that according to the extract of the records in respect of this particular parcel, there were two owners claiming the same parcel of land; one of these people registered as the owner was the appellant while the other claimant was Kandara Investment Company Limited. With these competing claims, the registrar testified that it was not possible to say with certainty who the legal owner of the land was.

The investigating officer’s evidence was consistent with that of the land registrar that there two titles in respect of the same parcel of land; however, he was of the view that the appellant “got his title by crooked means”.

The Land Registrar’s evidence, in my view, was conclusive that any of the either party, the company or the complainant, could be the owner of the parcel of land in question. If this was her view and the investigating officer’s evidence was based on the evidence obtained from her office, his testimony that the appellant “got his title by crooked means” and thereby implying that the Company’s title was the legal one was not supported by evidence; it was speculative and in any event, baseless. For purposes of the trial against the appellant, the trial court ought to have held that it was not proved beyond reasonable doubt that the complainant was the owner of the land parcel Mitubiri Wempa Block 1/6496.

I also agree with counsel for the appellant, that in view of the competing interests over ownership of the land parcel Mitubiri Wempa Block 1/6496and considering that the civil court was seized of this dispute even before the prosecution of the appellant, the trial court misdirected itself when it purported to conclude that the company was the legal owner of the land; it erroneously usurped the jurisdiction of the civil court and by doing so, the court failed to consider the proper question before it which was whether the prosecution had proved beyond reasonable doubt that the company was the owner of land parcel, Mitubiri Wempa Block 1/6496.

Without proof of legal ownership or entitlement of land parcel Mitubiri Wempa Block 1/6496,other issues such as whether the appellant was in possession of the land or whether such possession was likely to cause a breach of peace or a reasonable apprehension of the breach of the peace are of no consequence as far as the determination of this appeal is concerned. As noted, subject to the evidence that will be presented before it, the civil court may as well find that the appellant is legally entitled to this parcel of land.

For the same reason, the appellant’s conviction on the second count cannot be sustained to the extent that it is intertwined with the question whether he is the owner of the land in issue and therefore whether it is true that he lost the title deed which he reported to have been lost in 2008.

I will adopt the decision of Kimaru, J. in High Court Criminal Appeal No. 8 of 2012 Albert Ouma Matiya versus Republic where the learned judge held that in order to establish the charge of forcible retainer under section 91 of the Penal Code:

“…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 land in a manner that is likely to cause reasonable apprehension that there will be breach of peace against the person entitled by law to the possession of the land.” (Underlining mine).

As noted the issue of ownership of the land in issue had not been resolved and as at the time of the appellant’s prosecution it was pending for determination in a civil court; it cannot therefore be said that the prosecution had proved that the appellant had no title or legal right to occupy the land.

In High Court Criminal Appeal No. 91 of 2012, John Lonyangat versus Republic, the High Court sitting in Kitale, allowed an appeal where, as in this case, the appellant had been convicted of forceful detainer under section 91 of the Act; in that appeal, the learned judge, Karanja, J. found that there was uncertainty with regard to ownership of the land and held that the trial court was in error when it proceeded to determine the question of ownership instead of the issue pertaining to forcible detainer.

What is coming out clearly in these decisions is that where the ownership of the land in an offence of forceful detainer is in controversy or to put it more appropriately, if the legal ownership or entitlement of the land cannot be established beyond reasonable doubt at the accused person’s trial, then a conviction cannot be sustained.

I would, for the reasons given, allow the appeal; the conviction of the appellant on both counts is quashed and the sentences meted against him set aside. In the event that the appellant had paid the fines in lieu of serving the sentences, I order that the same be refunded to him forthwith.

Signed and dated at Nyeri this 19th day of January, 2015

Ngaah Jairus

JUDGE

Read and delivered in open court this 13th day of February, 2015

H.P. Waweru

JUDGE