[1948] EACA 88

# APPELLATE CRIMINAL

### Before BOURKE, J., and MODERA, Ag. J.

### **REX, Respondent (Original Prosecutor)**

# ν.

## RAMATHAN JABIR, Appellant (Original Accused) Criminal Appeal No. 465 of 1948

Criminal Law—Unlawful occupation of Crown Land—Crown Lands Ordinance, Cap. 140. Laws of Kenya, section 144—Onus of proof, section 133—Whether unauthorized erection of additional building amounts to unlawful occupation.

The appellant had been residing on Plot No. 117 at Kibera (Crown Land) since 1935. In May, 1948, he erected, without permission of the Location Superintendent, an additional building on the said plot. The appellant refused to demolish this building, though requested to, and was duly charged and convicted of unlawful occupation of Crown Land. At the trial the Superintendent of Kibera Location testified that on his appointment he had been given verbal instructions that occupiers of land at Kibera were not allowed to erect any building whatsoever on that land without authority. The Magistrate found that as the appellant had been warned by the Superintendent not to build on the land in question, his occupation by way of the new building was unlawful.

*Held* $(22-10-48)$ .—(1) That whilst under section 133 of the Ordinance, the onus of proof that the occupation was lawful lay on the appellant, although he elected to make no statement in defence, since the evidence for the prosecution tended to show that he had been in lawful occupation of the plot since 1935, to this extent the appellant had discharged the onus of proof placed upon him.

(2) That the attention of the Court had not been drawn to any legal authority for the verbal instructions given to the Superintendent of the Location, and that the Court could not reconcile previous lawful occupation and previous lawful building on the plot with unlawful additional building.

Appeal allowed.

#### A. R. Kapila for the appellant.

Holland, Crown Counsel, for the Crown.

JUDGMENT.—The appellant in this case was charged under section 144 of the Crown Lands Ordinance with being in unlawful occupation of Crown Land. Section 144 reads as follows: —

"Any person who shall unlawfully occupy Crown Land, in any manner whatsoever, shall, on conviction, be liable to a fine not exceeding seventyfive pounds."

The only evidence against him is that of Mr. W. H. Kitching who describes himself as the Superintendent of the Kibera Location. In the course of his evidence this witness avers that all land in Kibera is Crown Land. Section 133 of the Crown Lands Ordinance reads as follows: -

"In any action, suit or proceedings against any person for or in respect of any alleged unlawful occupation, use of, or trespass upon any Crown Land, the proof that the occupation or use in question was authorized by the provisions of this Ordinance or of any other Ordinance or law or of any order, regulation or rule made in pursuance thereof, shall lie on the defendant, and in every such action, suit or proceedings and in any action by or against the Government in which title to land shall be in issue the averment that any land in question is Crown Land shall be sufficient without proof of such fact, unless the defendant prove the contrary ..."

As we have just stated Mr. Kitching averred that the land was Crown Land and the defendant has not sought to prove the contrary. The definition of Crown Land is to be found in section 5 of the Ordinance which states inter alia that Crown Land shall include all lands occupied by the native tribes of the Colony and all lands reserved for the use of the members of any native tribe, save only the lands declared to be native lands by the Native Lands Trust Ordinance. There is no definition of unlawful occupation.

At the end of the prosecution case learned Counsel for the defence submitted that there was no case to answer. The learned Magistrate ruled against this submission and the accused elected to make no statement. In these circumstances has the accused discharged the onus placed upon him by section 133 above referred to? Mr. Kitching in the course of his evidence makes the following $ad$ missions: —

(a) "Accused occupies plot No. 117."

- (b) "The plot is in his name and there are two shops on it and his residence." - (c) "The accused had no agreement with Government with regard to the land." - (d) "We understand it is accused's plot because the land round the houses is considered to be occupied by the occupants of the house." - (e) "My records show that the accused was there in 1935."

All these above-mentioned statements would tend to show that the accused has been in lawful occupation of the plot since 1935 and, to this extent, we think that the accused has discharged the onus of proof placed upon him.

The Crown contends that because the accused was verbally told by Mr. Kitching, first of all to discontinue a building which was in the course of erection, and was later told to pull it down, that the accused—not having complied with these instructions—is in unlawful occupation. But what form of authority lies behind the instructions of Mr. Kitching, the Superintendent of the Kibera Location? Mr. Kitching can say no more than that "the occupier is not allowed to erect any building whatsoever on that land without authority. That is under my instructions from the Land Office. I have not the instructions here. They were given to me verbally on my appointment on 27th August, 1945".

The learned Magistrate in his judgment summarizes this aspect of the case by saying: "Was the occupation unlawful? I find that in view of the fact that the accused had been warned by the Superintendent not to build on this land, the answer must be that the occupation was unlawful". We are unable to reconcile previous lawful occupation and previous lawful building on the plot with unlawful additional building. Our attention has not been drawn to any orders, regulations or rules made in pursuance of the Crown Lands Ordinance, and there stands alone the evidence of Mr. Kitching from which we are unable to agree with the decision of the lower Court that the accused was in unlawful occupation of Crown Land as charged.

The appeal is consequently allowed, the conviction quashed, the sentence set aside and the fine if paid will be refunded.