Republic v Gatitu (Criminal Case 385 of 2014) [2014] KEMC 17 (KLR)

to the complainant, PW1, Jecinta Waithera Mwangi; and that the defendant herein want to illegally dispossess her of the ownership thereof. 6. The matter was reported to PW3, NO. 84XXXX PC Peter Kalingo, of Subukia police station on 05.02.2014. In the course of his investigation he obtained a bundle of receipts of payment bearing the name Muthoni Cecilia - the mother, dating from December 1978. That all the receipts were later cancelled after the completion of the payment and the name therein changed to read Jecinta Waithera Mwangi - the complainant herein. That the change of name was to allow for the processing of the title to the parcel. That the defendant herein then also started to claim ownership of the land. That he decided to charge the defendant herein because he could not produce any such receipt or document of ownership entitling him to the parcel of land. He produced the receipts with the alterations as P. Exhibit Nos. 1 – 5. 7. There was no submission after the close of the prosecution’s case. 8. This is a clear land dispute concerning the ownership of the land parcel herein. Though the complainant claims that the land was purchased by her, the receipt of payments produced herein shows that the same were issued to Muthoni Gatitu who was confirmed to be their mother, PW2 herein. The alterations therein needed serious explanation from the person who altered the name to read Jecinta Waithera Mwangi. The mother herself, PW2, confirmed to the court that she is the one who paid for and therefore purchased the land parcel herein . Her evidence on how and by whom, the land was acquired therefore contradicts the complainant's evidence that she is the one who paid for and therefore acquired the land parcel. There is therefore no clear evidence of how the land was passed over to the complainant herein if PW2 claims to have been the one who acquired it. 9. 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. 10. My interpretation of the provisions of the section is that they presuppose that the complainant is the lawful owner of the land subject matter, which is not the case in this suit. How can the defendant herein then be said to be guilty of forcible detainer within the meaning of section 91 of the Penal Code, yet the land parcel herein is not registered in the name of the complainant or lawfully possessed by herself, thereby giving her the colour of right thereof to the exclusion of the defendant herein or any other persons? 11. In Albert O. Matiya Versus Republic (HCCRA 8/2012 (Busia) reported in (2012)eKLR, Kimaru, J. held as follows:The ingredients required to establish the charge of forcible detainer under section 91 of the penal code are as follows: the prosecution must establish that the accused is in actual possession of the land which he has no right to hold possession of. The prosecution will establish this if it adduces evidence which prove that the accused has no title or legal right to occupy the land. Secondly, the accused must be in occupation of the parcel of land in a manner that is likely or cause reasonable apprehension that there will be breach of peace against the person entitled by law to its possession of the land. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/17/eng@2014-05-13 2

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12. To prove a case against a defendant facing a charge of forcible detainer, the prosecution must therefore establish that such a defendant entered into a parcel of land belonging to another without any colour of right and remained therein against the interest of the person. 13. The decisions in Richard Mwangi – Versus - Republic [2005]e KLR and Mary Chelangat - Versus Republic (2005) e KLR summarized the ingredient of the ofiences of forcible detainer as follows; 14. (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) e KLR 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. 15. 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 his defence as required under section 211 of the Criminal Procedure Code. 16. (i) A Person is in Actual Possession of Land : I find no evidence herein to prove to the required standard that the defendant herein was in actual possession of the land in dispute herein. Actual possession as opposed to constructive or any other kind or form of possession herein means that the defendant herein was to be physically in occupation of the said land parcel either by him residing therein or cultivating it. I find no evidence herein to prove the same. The complainant herein informed the court that the defendant herein was stopped by their chief to stop cultivating the land parcel herein. That the defendant stopped the cultivation as ordered, but then re-entered the land parcel in January 2014; in breach of the order of the chief. She did not however elaborate on whether the entry constituted actual possession or occupation or was a mere trespass. A mere trespasser cannot be said to have occupied or possessed a parcel of land until clear evidence of the possession or occupation is adduced. The prosecution's evidence is therefore not clear on this first ingredient of the ofience of forcible detainer. (ii) He has no Colour of Right to that Land: At this stage of the trial there was no evidence to prove that the defendant had a colour of right to that land. 17. 18. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/17/eng@2014-05-13 3

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(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: I have already found hereinabove (in (i) above) that there is no clear evidence that the defendant herein took actual possession of the land parcel in dispute herein. I also do hereby find that there is no evidence to prove that there was likely to be a breach of the peace or reasonable apprehension of a breach of the peace because of any 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. 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)e KLR). (iv) The Breach of the Peace must be Directed to the Person entitled by Law to Possession: As far as the charge is concerned, the prosecution has so far failed to prove that the defendant herein had no colour of right over the disputed parcel herein, and neither did it prove that the defendant held possess of the land in a manner likely to cause a breach of the peace. The Prosecution also failed to show that the defendant herein held the land against the complainant herein who was entitled to the land by law. The complainant did not have any title to the land. She may have had the receipts (P. Exhibit Nos. 1- 5) which had some alterations and which were confirmed to have been for some payments by their mother- PW2. The receipts however do not show how they relate to the disputed parcel herein and also if the parcel belongs to the complainant herein. The issue of ownership of the land herein was therefore not proved to the required standard. 19. 20. All the essential ingredient 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. I do believe that if I call upon the defendant hereinabove to make his defence against the kind of evidence in the prosecution's case where the issues of ownership, possession and breach of peace have not been clearly proved, I will be shifting the onus of proof to the defendant so as to require him to prove that he had no colour of right or that he possessed the land in dispute. I do not find any fact herein whose burden of proof is required to be shifted to the defendant herein. It will be embarrassing if the defendant exercises one of his rights under section 211 of the Criminal procedure code and remains silence. 21. There appear to be a family dispute over the ownership of the family land herein. Such disputes do occur and it is normal for parties to peacefully dispute over such portions of land. It is however not a function. of a criminal case to determine ownership to such disputes especially where there is uncertainty with regard to the ownership of the land. There appears to be a confiict between the defendant herein and the complainant on the right to own the property herein. Some attempts to resolve the confiict herein proved unsuccessful and it appears that the complainant resorted to law enforcer ( the police) who treated the matter as a criminal dispute and preferred a charge of forcible detainer against the defendant herein on allegation that, without colour of right, he held in possession the subject land , an unregistered parcel of land, in a manner likely to cause a breach of the peace against the complainant who was considered to be the lawful occupier of the land. It is obvious that the land was treated as belonging to the complainant though there was no individual title in favor of the complainant to prove and afirm her alleged ownership of the land. https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/17/eng@2014-05-13 4

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22. Therefore neither the complainant nor the defendant could accuse one another of interfering with each others lawful possession of the land. None of them has acquired lawful ownership of the parcel. 23. The solution to their dispute regarding the land at this stage lies at the very least with the civil court or the Lands and Environment Court and not certainly the criminal court. 24. The charge against the defendant was therefore misconceived ab initio as there was no proof of possession of title to the land parcel which is a necessity for one to claim forcible detainer. 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 ofience of Forcible Detainer contrary to section 91 of the Penal Code. 26. The ruling herein to be typed, certified and served on all the Oficers Commanding Police Divisions and Divisional Criminal Investigations Oficers. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 13th DAY OF May 2014 ALOYCE-PETER-NDEGE AG. PRINCIPAL MAGISTRATE In the presence of: Court interpreter: Jerusha Prosecutor: CIP Masinde Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2014/17/eng@2014-05-13 5

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