Samuel Gathii Mareri v Republic

against the appellant by the complainant and is still pending before the court thus arriving at a wrong conclusion; 3. d. The learned trial magistrate erred in law and in fact by failing to appreciate that the appellant was a bonafide purchaser for value and not a trespasser and that it is the Land Court which is competent to determine ownership of land; e. The learned trial magistrate erred in law and in fact by ignoring the probation report and imposing a sentence that was manifestly harsh. Parties disposed of the appeal by filing written submissions. The Appellant’s Submissions 4. The appellant submits that the complainant and himself know each other and live in the same area. As such, and therefore the complainant should have noticed the appellant ofioading building materials, as he dug the foundation and constructed the house to completion. The appellant submits that the prosecution called four witnesses who did not prove the elements of the charge. Furthermore, PW2 admitted that there had been double allocation. The appellant submits that he was a bonafide purchaser for value by dint of sale agreement dated 7/5/2018 for a consideration of Kshs. 650,000/through equity bank transfer on the same date from Felix Nduati Kiarie. He was issued with a certificate after which he started developing the plot. This was after the plot was confirmed on the ground by a surveyor by the name Kitiche. 5. The appellant submits that after he developed the land over beyond 1st January 2019 and 31st December 2019 and rented it out to a tenant the complainant came up to say that he had constructed on his plot. 6. The appellant further submits that he raised the issue that the subject matter was land and thus not a criminal case. Furthermore, the appellant submits that he and the complainant had been given an opportunity to take their surveyors on the ground and solve the matter at that stage but the complainant declined to do so. The appellant argues that he was not given the benefit of doubt. He further submits that the matter was heard by several magistrates and the one who convicted him was different from the one who passed his sentence and as such, a miscarriage of justice was occasioned. The Respondent’s Submissions 7. The respondent relies on Section 91 of the Penal Code and the case of Julius Edapal Ekai vs Republic [2018] eKLR and submits that the prosecution proved all the elements by showing that the appellant was in actual possession of the land and that he had no right over the land, that act of possession was against the interests of the legal owner and therefore likely to cause a breach of peace or reasonable apprehension of the breach of peace. The respondent submits that the appellant did not contest the prosecution evidence as pertaining to having constructed buildings on the subject land which he confirmed before the trial court and also captured by the photos produced in court as prosecution exhibit 11(1)-11(g). 8. The respondent submits that all the prosecution witnesses told the court that the appellant was in occupation of the said land. Further, the appellant continued to complete the buildings on the complainant’s land even after he had been ordered to stop by the relevant authorities. As such, the appellant was in actual occupation of the land in issue. Thus, the respondent argues that it proved that the appellant was in possession of the said land without any colour of right. 9. The respondent submits that the appellant was not a bona fide purchaser for value as proved by the testimonies of PW1, the complainant and PW2. PW1 testified that he bought the said land, Thika https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 2

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Municipality Block 15/65 in 1993. He bought plots measuring half an acre worth Kshs. 30,000/in two instalments of Kshs. 5,000/- as per receipts no. 3434 dated 7/6/1993 and no. 3002 dated 15/4/1993. On 7/5/1999 he paid Kshs. 2,800/- for survey and Kshs. 500/- for the certificate. He was then issued with certificate number 291 dated 7/5/1999, allotment letter no. 6116 dated 17/4/2014 and allotment letter referenced no. 143029 from the Ministry of Lands. PW1 further testified that he paid Kshs. 50,000/- for the lease certificate as per receipt dated 7/1/2020. The certificate dated 1/11/2019 and search certificate dated 9/2020 were produced which confirmed that the property belonged to him. The witness further testified that a file was opened with the County Government showing that he was the owner. He then commenced paying rates. The complainant testified that he later met a friend who informed him that someone was constructing on his property after which he confirmed that the appellant is the person who had constructed a building on his land. The prosecution called PW2, a secretary to the Kandara Investment Limited, the signatory to the entries in the register as a witness. She testified that she was authorized to certify copies of the map from the Survey of Kenya at the material time and further that PW1 had fully paid for the plot and had been issued the official documents of ownership, which were produced in court. The respondent argues that that evidence was not contradicted by the appellant hence the trial court observed correctly that Kandara Investment Limited sold the suit property Thika Municipality Block 49 to the complainant as was documented. The respondent further submits that it is not true that the identification of the subject plot was wrong. Thus, the defence by the appellant did not create any doubt in the prosecution’s case. 10. The respondent relies on the case of R vs Howell [1982] 1 QB 416; [1981] 3 All ER 383 and submits that the complainant was subjected to fear and apprehension upon witnessing the appellant continue to complete the buildings on his property even after he had been ordered to stop by the relevant authorities. The respondent further submits that attempts to have the matter solved amicably failed as the appellant is alleged to have challenged the complainant to proceed to court. 11. The respondent argues that the act of possession of the suit land and the circumstances in which possession was obtained by the appellant are likely to cause a breach of peace or reasonable apprehension of a breach of the peace. The respondent submits that the offence was proved beyond reasonable doubt and further that that offence is criminal in nature and ought to be dealt with in a criminal court and not civil court. 12. It was further submitted that there were no contradictions or inconsistencies. Assuming that some contradictions existed, the same were minor and do not go to the root of the prosecution case thus the court ought to ignore them. The respondent argues that the minor inconsistencies were satisfactorily explained showing the prosecution witnesses were truthful. 13. The respondent submits that the trial court correctly observed that the defence witnesses did not add much value to the defence case as all the witnesses corroborated the evidence by the prosecution, the appellant included. 14. The respondent further submits that the trial court analysed the appellant’s submissions and found that the existence of an ongoing civil case did not negate the current case and that issues such as lack of the involvement of scenes of crime officers did not appear to water down the evidence adduced by the prosecution. 15. The respondent argues that the penalty prescribed in Section 91 of the Penal Code for forcible detainer is that of a misdemeanour. Section 36 provides the general sentence for misdemeanours as a term not exceeding two years or a fine or both. In the current case, the appellant was sentenced to pay a fine of Kshs. 100,000/- in default to serve one (1) year imprisonment. Thus, the respondent argues that the sentence imposed by the trial court was lawful and appropriate. The sentence was neither harsh https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 3

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nor excessive and neither did the trial court overlook some material factor or considered some wrong material or acted on a wrong principle. Issue for determination 16. The appellant has cited 9 grounds of appeal which can be compressed into three main issues:a. Whether the prosecution proved its case beyond any reasonable doubt. b. Whether the trial court complied with Section 200 of the Criminal Procedure Code. c. Whether the sentence meted was excessive. The Law 17. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:“ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. 18. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958]EA 424.” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174. Whether the prosecution proved its case beyond any reasonable doubt. 19. The appellant was charged with the offence of forcible detainer contrary to Section 91 of the Penal Code which provides: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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 4

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20. The court in High Court Criminal Appeal No. 8 of 2012 Albert Ouma Matiya vs Republic [2012] eKLR held that in order to establish the charge of forcible detainer 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. 21. The complainant, PW1testified that in 1993 he bought a parcel of land L.R. Thika Municipality Block 15/69 from Kadija Investment Limited for a consideration of Kshs. 30,000/- which he paid in two instalments of Kshs. 5,000/- and Kshs. 25,000/-. He produced two receipts dated 7/6/1993 No. 3434 and 15/4/1993 No. 3002. The complainant testified that he paid survey fees of Kshs. 2,800/- on 7/5/199 and Kshs. 500/- for issue of the plot certificate on 7/5/1999. He was issued with a certificate No. 291 for his plot. He further paid for the allotment letter and was issued with receipt dated 17/4/2014 no. 6116 and letter of allotment letter reference No. 143029 from Ministry of Lands and Settlement. PW1 testified that he paid Kshs. 50,000/- for process of the lease and produced a receipt dated 7/1/2020. An official search dated 9/1/2020 showing that the land was registered in the complainant’s name. was tendered in evidence. The complainant has been paying rates to the now defunct Thika Municipality and has continued payments to the County Government of Kiambu. A receipt dated 14/8/2020. Was produced in evidence. In the year 2019 the complainant said he with an official in Kandara who informed him that someone had started construction on his land. He then went to the ground and confirmed that construction of a building had been commenced and was ongoing. He learnt that it was the appellant doing the construction. He called the appellant and informed him that he had encroached in his land that he had already reported the matter to the chief. PW1 stated that he went to the site with officers and surveyors and it was confirmed that the property on which the appellant was constructing a building was his plot. However, the appellant despite having been told to stop the construction still proceeded to complete the building and rented out units to several tenants. 22. PW2, the secretary at Kandara Investment Limited confirmed that the land in issue belonged to the complainant. It was LR. No. 4953/2282 situated on the Kandara Investment land earlier old to several interested buyers. The company had bought the land in 1993 and surveyed and sub divided into 87 plots which were sold to the members and certificates issued in 1996. The witness testified that she went with the surveyor and found that it was plot number 49 that had been constructed on. The witness further testified that the appellant was not one of their members and that by 31/4/1993, there were 10 directors but that there was an agreement that only the chairman and the secretary would sign documents and that they had no problem of double allocation. The appellant had bought his plot from one of the original owners and possessed genuine land ownership documents. 23. The witness further stated that Plot 49 is on Kandara Block 15 and that although the appellant was in possession of a lease from their office showing he is cleared, the complainant’s name as the owner of the plot as per their register had not been cancelled. 24. The appellant testified that he bought the suit property from one Felix Nduati Kiarie after executing an agreement He paid Kshs. 650,000/- as consideration for the property. He further produced a copy of the certificate and testified that he went to Kandara Investment and did a transfer and was issued with a certificate. He further testified that he went to the surveyor to confirm measurements and the beacons and began constructing on the suit property and produced photographs to prove the same. The appellant testified that he was not illegally on the land as he bought it and had the title documents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 5

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25. DW1 further stated that the complainant had complained to him that the land on which he was constructing belong to the complainant which led both parties to go to Thika Police Station. 26. The appellant admitted that he presented two certificates of plot ownership, one from Kandara Investment dated 5/9/2014 and the other from Kandara Youth Investment dated 7/05/2018. He further stated that there were a number of certificates generated in between the 4 years yet the number was still 66. 27. DW4, Felix Nduati Kiarie from whom the appellant said he bought the plot testified that the signatures on the sale agreement was not his and that the identity card number could have been forged. He testified that he was aware that the suit land had issues and the appellant was warned by the CID not to build on the land but he insisted that they would go to court. DW5, Lucy Wanjiru testified that she knew DW4 who sold the suit property to the appellant. She testified that she was a witness to the transaction but did not sign the agreement. 28. From the evidence on record, it is clear that the complainant gave the history of how he bought plot LR. No. Thika Municipality Block 15/65. The complainant gave a detailed background on how he bought the plot from Kandara Investment Ltd. He produced all the land documents issued to him by the company. All the payment receipts for the land and the sale agreement were tendered in evidence. The appellant did not have the initial documents from Kandara Investments who were the owners of the land. DW4 and DW5 testified that the signatures on the sale agreement were not theirs. The appellant further confirmed that he had not seen any title document to the suit land before purchasing the land from the alleged seller. The appellant conceded that the land reference number of the land was parcel No. 15 1969. But in his sale agreement the number is shown as Thika Municipality Block 49 which is a different parcel. Additionally, the dates and signatures in the two certificates were different and despite the difference of four years in the dates indicated, the number still remained as 66. 29. Evidence was led to the effect that the complainant was the owner of the suit property and the appellant was in actual possession of the land. As such, the appellant though in possession had no right over the land. The appellant constructed on the suit property and despite having reived information that the land belonged to the complainant. Furthermore, DW4 testified that after the matter was reported to the police, CID officers warned the appellant not to build on the said land but the appellant kept insisting that the parties had gone to court. These facts were not contested by the appellant and he actually presented photos in court to show that he had constructed on the suit premises. 30. On the ingredient of likely to cause a breach of peace, the court refers to the case of R vs Howell [1982] 1 QB 416; [1981] 3 All ER 383, Watkins LJ stated:A comprehensive definition of the term breach of the peace has very rarely been formulated so far as we have been able, with considerable help from counsel, to discover from cases which go as far back as the eighteen century…….We cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks on a person’s body or property. 31. In the instant case, the appellant did not physically harm the complainant but he subjected him to fear and apprehension when he continued to construct and complete the buildings on the complainant’s land even after the relevant authorities ordered him to stop. The appellant further refused to settle the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 6

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matter amicably and challenged the complainant to proceed to court. Thus, it is my considered view that the prosecution has proved the ingredients of the offence of forcible detainer. 32. The appellant further argues that the prosecution’s case was filled with material inconsistencies and contradictions. Relying on the case in the Court of Appeal Tanzania of Dickson Elia Nsamba Shapwata & Another vs The Republic Cr App. No. 92 of 2007, addressed the issue of discrepancies in evidence and concluded as follows:“ In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 33. The appellant did not specify what discrepancies, contradictions or inconsistencies the prosecution case presented. I have perused the record and noted that the prosecution witnesses gave credible and consistent evidence. Documentary evidence of the land in 1993 was produced starting with receipts for purchase. It is evident from the evidence on record that the suit land belonged to the complainant having brought it from Kandara Investment in 1993. This was confirmed by an official of the company in his evidence. The appellant was in actual possession of the land although he had no right over the land which was against the interests of the complainant as the legal owner. The evidence further showed that the appellant caused a breach of peace by constructing on the said premises despite being ordered by relevant authorities to stop construction. He ignored the warning and continued the construction. The documents the appellant produced were wanting in that the alleged seller said his signature had been forged. 34. Unlike the complainant, the appellant had no history of the land. He produced an agreement which was disputed by the alleged vendor due to want of authenticity. It is important to note that the original owner and vendor Kandara Invetments Ltd sold the plots in 1993 but the appellant claims to have bought his plot in 2018 with no history attached to the ownership. PW2 overwhelming evidence in support of the complainant’s case. The investigating authority having established who the genuine owner was charged the appellant with the offence. The evidence against the appellant was overwhelming, in my considered view. 35. It is my finding that the trial magistrate relied on cogent evidence to convict the appellant. Whether the trial court complied with Section 200 of the Criminal Procedure Code 36. Section 200 (3) of the Criminal Procedure Code provides:Where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be summoned and reheard and the succeeding magistrate shall inform the accused person of that right. 37. I have perused the evidence on record and noted that the trial was conducted by three magistrates in succession namely Hon. E. Riany (SRM), Hon. A. Macharia (PM) and Hon. O. Wanyaga (SRM). The first magistrate heard the entire prosecution case and part of the defence. The second one heard the remainder of the defence case and delivered the judgment. The case was taken over by the 3rd magistrate Hon O. Wanyaga who imposed the sentence on the appellant. The record shows that the court in each instance explained to the accused his rights under Section 200 of the Criminal Procedure Code. The accused person in the two instances elected to have the case proceed from where it stopped. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 7

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The appellant was represented by an advocate namely Dola Ididis. The trial court considered the choice of the accused and directed that the case proceeds from where it had reached and proceeded to give hearing dates as required. The provisions of Section 200(3) of the Criminal Procedure Code were strictly complied with. It is important to note that the provision does not not obligate the succeeding magistrate to start the case de novo. This was stipulated by the Court of Appeal in Joseph Kamara Maro vs Republic [2014] eKLR when it stated:Our summation above is that the appellant was informed of his rights under Section 200(3) of the Criminal Procedure Code every time a new magistrate came on board. The position in law is that a trial magistrate taking over a case that is partly heard is mandatorily obligated to inform an accused person of his right to recall witnesses. After an accused person has been informed of his right, he/she may elect to have the witnesses recalled. What happens thereafter is for the court to decide depending on the availability of witnesses, the length the trial has taken, because if it has taken too long chances are that some witnesses may have left the jurisdiction of the court as was the case here or some may even have died. To this extent we are in agreement with the learned Judges of the High Court that this provision does not oblige the succeeding magistrate to start de novo but what is mandatory is to inform an accused person of his right under Section 200(3) of the Criminal Procedure Code. 38. Thus, it is my considered view that the two succeeding magistrates complied with the provisions of the law namely Section 200 (3) of the Criminal Procedure Code. The appellant elected to proceed from where the case had reached in the two instances. Whether the sentence was harsh and excessive 39. The Court of Appeal, on its part in Bernard Kimani Gacheru vs Republic [2002] eKLR restated that:It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence, unless that sentence is manifestly excessive in the circumstances of the case or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 40. Section 91 of the Penal Code prescribes the penalty for the offence of forcible detainer is that of a misdemeanour. Section 36 of the Penal Code provides for the general sentence for misdemeanours as follows:When in this code no punishment is specifically provided for any misdemeanour, it shall be punishable with imprisonment for a term of not exceeding two years with a fine, or with both. 41. Considering the maximum sentence provided for under Section 36 of the Penal Code, it is my considered view that the sentence imposed was reasonable and commensurate to the offence. It was neither harsh nor excessive in my view. 42. Having considered all the foregoing, I hereby find that this appeal has no merit and it is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 8

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43. It is hereby so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 27TH DAY OF FEBRUARY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19797/eng@2025-02-27 9

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