[2022] KEHC 11421 (KLR)

Wanyama v Republic (Criminal Appeal E095 of 2021) [2022] KEHC 11421 (KLR) (17 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11421 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E095 of 2021

LK Kimaru, J

May 17, 2022

Between

Edmond Wafula Wanyama

Appellant

and

Republic

Respondent

(From Original conviction and sentence in criminal case no. 4984 of 2021 of the chief Magistrate’s Court at Kitale delivered by Hon. C.M. Kesse –SRM)

Judgment

1. The Appellant, Edmond Wafula Wanyama was convicted of the offence of Interfering with Survey marks contrary to Section 29 of the Survey Act. The court found that the prosecute had established to the required standard of proof that the Appellant, did on 8th August 2019 at Lumboka Farm, Trans Nzoia County unlawfully and without reasonable excuse interfere with Survey marks along the boundary between John Wanyama and Edmond Wafula. The Appellant was sentenced to pay a fine of Kshs 100,000/= or in default he was to serve two (2) years imprisonment. The appellant is serving the default custodial sentence. He was aggrieved by his conviction and sentence. He has filed an appeal to this court.

2. In his petition of appeal, the Appellant raised several grounds of appeal challenging his conviction and sentence. The appellant was aggrieved that he had been convicted without any proof that he had interfered with the boundary or damaged property. He took issue with the fact that he was convicted yet the complainant had not established that he was the owner of the land. He faulted the trial court for failing to find that the eucalyptus trees had been planted by the complainant’s mother and further that the survey marks allegedly interfered with had been placed by the complainant himself and not a surveyor. He was aggrieved that he had been convicted after the trial court had shifted the burden of proof from the prosecution to the defence. He faulted the trial court for failing to consider the Probation report filed in court and thereafter sentenced him to serve a harsh and excessive sentence. In the premises therefore, the Appellant urged the court to allow his appeal, quash his conviction and set aside the sentence that was imposed on him.

3. During the hearing of the appeal, this court heard oral rival submissions made by Mr. Gemenet for the Appellant and by Mr. Omooria for the State. Whereas Mr. Gemenet urged the court to allow the appeal essentially on the ground that there was insufficient evidence to establish the charge brought against the Appellant, Mr. Omooria maintained that the prosecution had established a case to warrant the conviction of the Appellant.

4. This court’s perusal of the court’s record leds it to the irresistable conclusion that this appeal shall be disposed off by only one issue; whether the complainant established the ownership of the land that he asserted the Appellant removed the survey marks or beacons from.

5. For the prosecution to establish its case, it was required to prove that the complainant was the owner of the suit parcel of land, established the position in which the survey mark had been placed by the Surveyor, and further that the survey mark had been interfered with. Section 2 of the Survey Act defines a “survey mark” as:“any trigonometrical station, fundamental benchmark, benchmark, boundary beacon, peg, picket, mark or pole, whether above or below the surface of the ground, which is fixed, placed or set up, by, under the direction of a surveyor for the purpose of any survey under the Act”.Section 29 of the Survey Act is the penal section for anyone found guilty of tampering with a survey mark.

6. In the present appeal, from the facts of the case, other that stating that he was the owner of a particular parcel of land at Lumboka Farm, the complainant failed to set out the particulars of the parcel of land that he allegedly owns. He did not state the land reference number of the land nor did he produce a title document for the particular parcel of land. He was required to produce a survey plan to establish that indeed the survey mark evincing the boundary between the two parcels of land had indeed been tampered with. No evidence was adduced by the prosecution to establish that indeed a surveyor had placed a survey mark between the two parcels of land that the Appellant had removed or tampered with. In the absence of such crucial evidence, it cannot be said that the prosecution established its case on the charge brought against the Appellant to the required standard of proof beyond any reasonable doubt.

7. Having re-evaluated the entirety of the evidence adduced before the trial court, it was clear to the court that there exists a boundary dispute between the complainant and the Appellant’s mother which has not been resolved. The Appellant should use the established legal channels to ventilate his grievance, including but not limited to, to procuring a surveyor to demarcate the boundary. Self-help and destruction of property will not do.

8. Suffice for this court to state that the Appellant’s appeal has merit. It is hereby allowed. His conviction is hereby quashed. The sentence imposed upon him is set aside. He is ordered released from prison unless otherwise lawfully held. If he has paid the fine, the same shall be refunded to him.It is so ordered.

DATED AT KITALE THIS 17TH DAY OF MAY 2022. L. KIMARUJUDGE