[2017] KEHC 9063 (KLR)
The court found that the trial magistrate erred in law by imposing an eviction order as part of the sentence for forcible detainer, as such a punishment is not provided for under Section 91 of the Penal Code. The existence of pending succession proceedings over the disputed property further deprived the criminal...
Source-derived case information.
- Citation
- [2017] KEHC 9063 (KLR)
- Parties
- Appellant: Zena Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 43 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- LK Kimaru
- Legal Topics
- Forcible Detainer, Jurisdiction of Criminal Court, Stay of Execution, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zena Hassan
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the trial court had jurisdiction to issue an eviction order in a criminal case.
- 2 Whether eviction is a lawful punishment under Section 91 of the Penal Code for forcible detainer.
- 3 Whether the execution of the order requiring the appellant to vacate the premises should be stayed pending appeal.
Ratio Decidendi
The court found that the trial magistrate erred in law by imposing an eviction order as part of the sentence for forcible detainer, as such a punishment is not provided for under Section 91 of the Penal Code. The existence of pending succession proceedings over the disputed property further deprived the criminal court of jurisdiction to make orders affecting possession. The appellant established a prima facie case that she was subjected to an unlawful punishment, justifying a stay of execution of the eviction order pending the determination of her appeal.
Court Disposition
Application for stay of execution allowed.
Orders
- Execution of the order requiring the appellant to vacate the premises is stayed pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL NO.43 OF 2017
ZENA HASSAN.........................................APPELLANT
VERSUS
REPUBLIC.............................................RESPONDENT
RULING
The Appellant, Zena Hassan was aggrieved by the conviction and sentence by the Kibera Chief Magistrate’s Court in CR. Case No.3062 of 2014. In that case, the Appellant had been charged with the offence of forcible detainer contrary to Section 91 of the Penal Code. The particulars of the offence were that on March 2014 at Embulbul area within Kajiado North County, jointly with another, entered the house of Naima Wayua Mwanzia that is situated on Plot No.Ngong/Ngong/62378 and had refused to vacate therefrom despite constant demands without any reasonable grounds. The Appellant was placed on two years’ probation on condition that she vacates from the suit parcel land by 5th May 2017. The Appellant was aggrieved especially by the decision of the trial court that required her to vacate the suit premises. She was of the view that the said court did not have jurisdiction to issue an order of vacation in a criminal case. She has filed an appeal to this court.
Pending the hearing of the appeal, the Appellant filed an application pursuant to Section 357(1) of the Criminal Procedure Code seeking to have the part of the decision that required her to give vacant possession of the suit premises be suspended pending the hearing and determination of the appeal. In support of the application, the Appellant stated that there were pending succession proceedings before the Kajiado High Court which had not been resolved. The dispute involved members of the family of the late Idd Malambo Hassan. The parcel of land that was the subject matter of the criminal case was one of the properties that is in dispute in the succession case. The Appellant reiterated that the trial court did not have jurisdiction to issue an eviction order particularly taking into consideration that the High Court in the succession cause had issued orders that the suit property not be distributed pending the hearing and determination of the dispute. The Applicant’s position was urged on her behalf by her advocate Mr. Musyoki.
Ms. Nyauncho for the State conceded to the application on the grounds that the trial magistrate on the face of it, erred when she issued an eviction order in a criminal case. In particular, she submitted that eviction was not one of the punishments that may be imposed upon conviction of a person who has been found guilty of an offence under Section 91 of the Penal Code.
This court agrees with both counsels in this application that indeed a prima facie case was made by the Appellant when she asserts that she was sentenced to a punishment that is not contemplated by the law. In the premises therefore, this court will allow the Appellant’s application which seeks to stay or suspend the execution of the order of the trial magistrate issued on 6th April 2017 pending the hearing and determination of the appeal. It is so ordered.
DATED AT NAIROBI THIS 14TH DAY OF JUNE 2017
L. KIMARU
JUDGE