Fred Oundo Egesa v Republic [2015] KEHC 2356 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CRIMINAL APPEAL NO. 80 OF 2013

FRED OUNDO EGESA---------------------------------------- APPELLANT

VERSUS

REPUBLIC-----------------------------------------------------RESPONDENT

(An appeal against the judgment, conviction and sentence of the Principal Magistrate  I. T.  Maisiba, in Busia Chief Magistrate’s Court criminal case no. 573 of 2012)

JUDGMENT

1. On 15th November 2013, The Principal Magistrate, Busia placed Fred Oundo Egesa (the Appellant) on a 2 year Probation.  This followed his conviction on the offence of Forcible detainer contrary to section 91 of the Penal Code.  This Appeal is against both conviction and sentence.

2. It had been alleged that  On the 13th day of April 2012 at Muyafwa Sub Location, Nangoma Location within Busia County being in possession of Land Parcel No. Bukhayo/ Matayos/2071 of Alice Omulayi Sirekah without colour of right, held possession of the said land in a manner likely to cause a breach of the Peace against Alice Omulayi Sirekah who was entitled by law to the possession of the said land.

3. The State Counsel conceded to the Appeal and submitted that there was no evidence to prove that the Appellant was at any time in possession of the Complainant’s land.  The Penal Code, in Section 91, defines the charge 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 the peace or reasonable apprehension of a breach of the peace, against  a person entailed by law to the possession of the land is guilty of the misdemeanor termed forcible detainer.

4. One ingredient of the charge is that the Accused Person must be in actual possession of the land without a colour of right.  The learned trial magistrate fully appreciated this and remarked-

“I have considered the evidence. The accused was put on his defence but elected to remain silent.  To prove a case of forcible detainer the prosecution was tasked with proving that the Accused person was in actual possession of the suit land.  It is clear there is a boundary dispute that is pending over parcel No. Bukhayo/ Matayos/2172 and 2171. ”

5. There was evidence, and the Learned Magistrate found correctly, that there was a boundary dispute in respect to Bukhayo/Matayos/2172 and 2171 that was the subject matter of civil case No. 153 of 2012 at Busia and which litigation was pending. What was not established by the Prosecution, beyond reasonable doubt, was whether the Accused Person was in actual possession of  the undisputed portion of the Complainant’s land.  What PC Daniel Kipkirui (PW5) said about the scene visit is revealing.  He stated

“when I went to the land I did not have any map. I cannot say which land I visited the scene. I was not with any surveyor to show me the land.”

On her part the Complainant said.

“I agree there is a dispute over two parcels. We have not deliberated on the dispute with the provincial administration over the dispute. The surveyor has not been invited to fix the boundary.”

It may well be that the Appellant indeed entered and  uprooted maize planted on the Complainant’s land that was outside the disputed portion.  But that needed to be cogently proved.

6. For the above reasons only I would allow the Appeal. The conviction is quashed and sentence set aside.

7. As explained to the Parties, this Decision could only be delivered on Notice to them as I was proceeding for my Annual Leave and thereafter for August vacation. That explains the apparent delay.

Dated, Signed and Delivered at Busia this 1st  day of October 2015

F. TUIYOTT

J U D G E

In the presence of :-

Oile……….........Court Clerk

Manwari……….For the Appellant

Obiri…………....For the State