Republic v Mukuru (Criminal Case 1623 of 2013) [2014] KEMC 12 (KLR)

1 4. Meanwhile, all these times, the defendant herein was still in occupation of the land parcels even despite having lost in the succession dispute. 5. PW1, Elaine Njeri Mukuru, informed the court that immediately after the judgment in the succession matter, she went and found the defendant herein while still occupying the land parcels and that she informed her that the judgment was clearly against her and that she was to vacate the said parcels. She confirmed in her evidence that the defendant understood and that she informed her that she had no problem with vacating the land which she promised to do within one month. 6. PW2, William Gathogo, was then appointed by the complainant herein, through a Power of Attorney to represent them in the land transaction and dispute herein.1 He confirmed that the company purchased the land parcels herein from PW1, Elaine Njeri Mukuru. That the complainant later decided to sell the land parcels to a developer. That that is the time when they realized, through their agent, that there was someone who was cultivating and occupying the said parcels which belonged to them. He therefore decided to report the matter to the CID headquarters. He did not, however, meet the defendant herein till when her name was called out in court in this criminal trial. 7. PW3, Josephat Kungu Mburu, a property agent, confirmed that he personally dealt with the defendant herein on behalf of the complainant. He realized that the defendant herein had lodged a caution at the Land Registrar, Nanyuki. That he was sent with a summons by the lands registrar dated 11.04.2012 (PExh. No. 15) to serve on her, after the initial summons by the land registrar dated 16.02.2012 (PExh. No. 14) was not honored by her. He confirmed to the court that he personally travelled to the farm where he met the defendant herein with her son called Antony Mukuru. He found some cultivation going on in the land and also some houses having been constructed therein. He duly served them the notices which they acknowledged by signing at the back of the summons. That later on when he wanted to sell the land parcels to the Ministry of Special Programs, they visited the parcels with some of the oficials from the ministry. That the defendant herein again showed them some documents that indicated to them that there was a protracted dispute over the parcels. 8. At the CID headquarters, the matter was handled by PW5, No. 83XXX Cpl. Irene Wambui Njuguna. The report that she received from PW2 was that the defendant herein was claiming an interest in land parcels herein which belonged to the complainant. She did her investigations over the same and later decided to charge the defendant herein with the present ofiences because they was no other way to get her out of the land. 9. There were some brief but concise submissions from both sides to the criminal dispute herein at the close of the prosecutions' case. 10. Mr. Mahan for the defendant submitted that 'the intention to create a breach of peace' components of the charges herein amounts to a separate ofience which ought to have been charged separately. That the charges as framed are therefore duplex for charging the defendant herein with the ofiences of Forcible Detainer and breach of peace in the same counts. Counsel further submitted that there was no evidence which proves that there was an intention by the defendant herein to create a breach of peace, or that a breach of peace did take place. Also that the complainant herein never visited the land. That the complainant herein simply acted on information that was given to him by an agent that there was someone who was occupying the land. According to counsel, the defendant had all the justification to be in the land pending the hearing and determination of her appeal. Further that under Section 8 of the Penal Code the defence of bona fide claim of right is available to the defendant in the circumstances. See the Special Power of Attorney dated 12.04.2012 produced as PExh. No. 11 and the Resolution of the Board dated 12 .04.2012, produced as PExh. No. 12 https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/12/eng@2014-11-11 2

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11. For the prosecution, IP Omweri, submitted that a breach of peace, an essential ingredient for the ofiences herein, has been proved. That it is not in dispute herein that the land parcels are currently registered in the name of the complainant. That a breach of peace would have been occasioned by the several members of the complainant's company. 12. Those were the brief submissions herein. Contrary to the learned counsel's submissions, the charges herein have been properly laid in the charge sheet. One of the essential ingredient of the ofience of Forcible Detainer, and which distinguishes it from the civil tort of trespass, is the breach of peace component. 13. Section 91 of the Penal Code provides for the ofience of forcible detainer as follows: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 peace or reasonable apprehension of parcel against a person entitled by law to the possession of the land is guilty of a misdemeanor termed forcible detainer (emphasis- mine). 14. 15. The decisions in Richard Mwangi – versus - Republic [2005] eKLR and Mary Chelangat - versus Republic (2005) eKLR summarized the ingredient of the ofiences of forcible detainer as follows; (a) A person is in actual possession of land; (b) He has no colour of right to that land; (c) The person holds on to possession of the land in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace; and (d) The breach of the peace must be directed to the person entitled by law to possession. Kimaru, J in Godfrey Kariuki Ngathwa – versus - Republic (2006) eKLR elaborated the nature of the ofience of forcible detainer as follows: The ofience of forcible detainer is a common law ofience which was codified into our Penal Code. According to Archbold Criminal Pleadings, Evidence and Practice, 39th Edition; Sweet and Maxwell (1976), forcible detainer is defined at paragraph 3595 (page 1510) as being 'when a man who has entered peacefully maintains his position by force.' The common law position in England ceased to be of efiect when the Criminal Law Act, 1977 was enacted. The said Act basically gave a more detailed definition and expanded the circumstances under which a person would be said to have forcefully entered and remained in another person’s parcel of land without a color of right. 16. Focusing on the ingredient summarizes hereinabove, the main issue for determination herein is therefore whether a prima facie case within the meaning of section 91 of the Penal Code, has been disclosed to warrant the defendant herein being called upon to make her defence as required under section 211 of the Criminal Procedure Code. 17. (i) A Person is in Actual Possession of Land : I find it not disputed herein that the defendant herein was in and is still in actual possession of the land parcels herein 18. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/12/eng@2014-11-11 3

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(ii) He has no Colour of Right to that Land: At this stage of the trial there is evidence that the land parcels are registered in the name of the complainants herein. The defendant therefore has no colour of right to the parcels. (iii) The Person holds on to Possession of the Land in a manner likely to cause a Breach of the Peace or Reasonable Apprehension of a Breach of the Peace: To me this is the main issue that can settle this criminal dispute. As stated herein above, this is the main ingredient that translates what might appear to be and should be a civil land dispute, or a civil trespass to land; into a serious criminal ofience of Forcible detainer. The prosecution was supposed to prove herein that the defendant's possession of the parcels herein was likely to cause a breach of peace or reasonable apprehension of a breach of peace. Whereas it is clear from my findings in (i) and (ii) above that the defendant herein took actual possession of the land parcel and is still in actual possession of the same; I do not find any evidence to prove that there was or likely to be a breach of the peace or reasonable apprehension of a breach of the peace because of such possession. None of the witnesses called by the prosecution herein stated that the land dispute herein could have led to any violence or incitement to violence which could have provoked a breach of the peace or reasonable apprehension of a breach of peace. PW1 the real disputant with the defendant in the succession dispute that led to the transfer of the land parcels to the complainant, confirmed in her evidence that she met with the defendant herein immediately after the judgment in the dispute and that the defendant agreed to vacate the land parcel. PW3, the complainant's property agents confirmed that she met with the defendant herein while with her son, and that the defendant and her son willingly received the summons from the land registrar. He again met with her when he was introducing the government delegation who wanted to purchase the parcels. The defendant simply claimed some interest in the land parcels. PW4, the Investigating Oficer did not also confirm whether there was any violence, threat of violence or breach of peace that was caused or likely to be caused by the defendant. PW4 confirmed that she decided to charge the defendant herein with the ofiences as a means of getting her out of the land parcels. It therefore appears that this criminal case was launched against the defendant so as to evict her out of the disputed land. I do not however believe that one of the purposes of a criminal case is to evict someone from a land parcel. There is therefore no evidence that the land dispute herein or any possession of the disputed parcel herein was in any manner likely to cause a breach of the peace or a reasonable apprehension of a breach of the peace against any person (also see Njeri Mutunga - versus - Republic (2009) eKLR). I just do not find that the defendant herein has remained in possession of the parcels herein by use of any force; or violence as contemplated in section 91 of the Penal Code.2 (iv) The Breach of the Peace must be Directed to the Person entitled by Law to Possession: The complainant herein, being represented by PW2, had never met the defendant herein. That was confirmed in the testimony by PW2, who holds their special power of attorney. The breach of peace in such a dispute must, according to the wordings of Section 91 of the Penal Code be directed to the person who is entitled by law to the possession of the land; in this case the complainants herein. PW3, the complainant's agent did conform to the court that the defendant co-operated with him when he went to serve her and also when he took the government delegations to view the parcels. This ingredient has therefore not been proved to 19. 20. 2 See Godfrey Kariuki Ngathwa – versus - Republic (2006) eKLR https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/12/eng@2014-11-11 4

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the required standards. The complainants themselves, being represented by PW2, had not met the defendant herein before and their agent did not also confirm whether the defendant, acted in any manner that breached or was likely to cause a breach to their peace. 21. The two essential ingredients of the ofience of forcible detainer as summarized hereinabove have not therefore been proved and constituted to the required standard. The prosecution has called all their witnesses and closed their case. In the circumstances, I do believe that it will not be proper for me to call upon the defendant herein to make her defence against the kind of evidence in the prosecution's case where the issue of breach of peace has not been clearly proved. It will be embarrassing if the defendant exercises one of her rights under section 211 of the Criminal Procedure Code and remains silence. 22. There appear to be a land dispute over the land parcels herein. Such disputes do occur and it is normal for parties to peacefully dispute over such portions of lands in succession claims. It is however not a function. of a criminal case to resolve such disputes especially where no breach of peace, violence, force or fraud is employed by any party to such dispute. In this dispute, there appears to be a confiict between the defendant herein and PW1. There is, however, no evidence that the defendant herein has acted violently or criminally. The dispute was before the High Court as a civil dispute and I do see any reason, in the absence of any evidence to prove any violence or fraud on the part of the defendant herein, why the dispute suddenly turned to be criminal. The complainant resorted to law enforcer (the CID) who treated the matter as a criminal dispute and preferred a charge of forcible detainer against the defendant herein on allegation that she was holding in possession the subject parcel in a manner likely to cause a breach of the peace against the complainant where such breach of peace had not been established to have or likely to occur. 23. The solution to the dispute regarding the land parcels at this stage lies at the very least with the civil court or the Lands and Environment Court and not certainly this criminal court. 24. The charge against the defendant was therefore misconceived ab initio as there is no proof of violence or breach of peace on the part of the defendant herein, and which is directed to the complainant herein, which are necessities for her to be charged with forcible detainer in such a land dispute. 25. I do therefore find no prima facie case disclosed against the defendant herein and do hereby dismiss the charge herein and enter a finding of not guilty in this criminal trial pursuant to the provisions of section 210 of the Criminal Procedure Code. I consequently do hereby acquit the defendant of the ofiences of Forcible Detainer contrary to section 91 of the Penal Code as charged in both counts herein. 26. Eviction of the defendant, an unlawful resident, peacefully on the complainant's land, can be sought from an appropriate court and not a criminal one. A peaceful squatter is not necessarily a criminal till the criminal elements which I have explained hereinabove are established and proved to the required standard. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 11TH DAY OF NOVEMBER, 2014. ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of: Court interpreter: Isaac Prosecutor: IP Omweri Defence Counsel: N/A https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/12/eng@2014-11-11 5

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Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/12/eng@2014-11-11 6

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