Republic v David Mwangi Muiruri [2017] KEHC 723 (KLR)

REPUBLIC  OF KENYA

IN THE HIGH COURT OF KENYA  AT MALINDI

CRIMINAL APPEAL NUMBER 36 OF 2015

REPUBLIC...........................................APPELLANT

-VERSUS-

DAVID MWANGI MUIRURI..........RESPONDENT

(Being an appeal against the ruling and acquittal of Hon. Y. Shikanda – SRM, delivered on 3rd March 2015 in Malindi Cr Case No.345 of 2011 at Malindi Chief Magistrate's Court)

J U D G M E N T

The Respondent was charged with nine different counts.  The charge and particulars for each count were as follows;

Count one

Making documents  without authority, contrary to section 357(a) of the Penal Code

DAVID MWANGI MUIRURI

On the divers dated between 16th January 2004 and 29th March 2004 within Malindi Township in Kilifi County, jointly with others not before court, with intent to deceive, without lawful authority, made certain documents namely court proceedings in respect of Malindi Civil suit No.18A of 2004 purporting to show that the said proceedings were held before Joyce Manyasi, the then Chief Magistrate at Malindi Law Courts, purporting them to be genuine court proceedings.

Count Two

Forgery contrary to section 349 of the Penal Code

DAVID MWANGI MUIRURI

On the divers dates between 16th January 2004 and 29th March 2004 within Malindi Township in Kilifi County, jointly with others not before court, with intent to defraud , forged a certain document namely court proceedings in respect of Malindi Civil Suit NO. 18A of 2004purporting them to have been genuine court proceedings conducted and signed by Joyce Manyasi, the then Chief Magistrate at Malindi Law Courts.

Count Three

Making Documents without authority, contrary to section 357(a) of the Penal Code

DAVID MWANGI MUIRURI

On the divers dated between 16th January 2004 and 29th March 2004 within Malindi Township in Kilifi County, jointly with others not before court, with intent to deceive, without lawful authority, made a court decree in respect of Malindi Civil suit No.18A of 2004 purporting to show that the said decree was made by Joyce Manyasi, the then Chief Magistrate at Malindi Law Courts, purporting it  to be genuine court decree.

Count Four

Forgery contrary to section 349 of the Penal Code

DAVID MWANGI MUIRURI

On the divers dated between 16th January 2004 and 29th March 2004 within Malindi Township in Kilifi County, jointly with others not before court, with intent to defraud, forged a certain document namely Court decree in respect of Malindi Civil suit No.18A of 2004it to have been genuine Court Decree signed by Joyce Manyasi, the then Chief Magistrate at Malindi Law Courts,

Count Five

Uttering a forged document contrary to section 353 of the Penal Code

DAVID MWANGI MUIRURI

On the 6th March 2007, at the Ministry of Lands offices in Mombasa, within Mombasa County,  jointly with others not before court, with intent to defraud, knowingly and fraudulently uttered a false document namely court decree  in respect of  Malindi Civil suit No.18A of 2004to the Lands Registrar Mombasa purporting it to have been genuine Court Decree signed by Joyce Manyasi, the then Chief Magistrate at Malindi Law Courts,

Count six

Making documents without authority, contrary to section 357(a) of the Penal Code

DAVID MWANGI MUIRURI

On the 22nd February 2007 within Malindi Township in Kilifi County, jointly with others not before court, with intent to deceive, without lawful authority made a court vesting order  in respect of Malindi Civil suit No.5 of 2007purporting   to show that the said court vesting order was made by Daniel Ogembo, the then Principal Magistrate at Malindi Law Courts and purporting it to be a genuine vesting order.

Count Seven

Forgery contrary to section 349 of the Penal Code

DAVID MWANGI MUIRURI

On the 22nd February 2007 within Malindi Township in Kilifi County, jointly with others not before court, with intent to defraud, forged a certain court vesting order  in respect of Malindi Civil suit No.5 of 2007purporting to show that the said vesting order was made by Daniel Ogembo, the then Principal Magistrate at Malindi Law Courts.

Count Eight

Uttering a forged document contrary to section 353 of the Penal Code

DAVID MWANGI MUIRURI

On the 6th March 2007, at the Ministry of Lands offices in Mombasa, within Mombasa County,  jointly with others not before court, with intent to defraud, knowingly and fraudulently uttered a false document namely court vesting order  in respect of  Malindi Civil suit No.5 of 2007to the Lands Registrar Mombasa purporting it to have been genuine Court vesting order signed by Daniel Ogembo, the then Principal Magistrate at Malindi Law Courts,

Count Nine

Procuring execution of document by false pretences contrary to section 355 of the Penal Code as read with section 349 of the Penal Code

DAVID MWANGI MUIRURI

On the 6th March 2007, at the Ministry of Lands offices in Mombasa, within Mombasa County,  jointly with others not before court, by means of false and fradulent representation as to the nature, contents or operations of certain documents namely court proceedings, court decree and vesting orders in respect of Malindi Civil suit No.18A of 2004 and 5 of 2007,procured the Lands  Registrar Mombasa to execute in the Lands register plot NO.622 Malindi in favour of G. Hotmann Cottova, a company in which he is the proprietor, from Karlheinz Borner, Mirko Blattermann and Helmut Koster.

The trial court heard 11 witnesses brought in by the prosecution in support of the case.  In the ruling delivered on 31/3/2015, the trial court ruled that the respondent had no case to answer and acquitted him under section 210 of the Criminal Procedure Act.

The acquittal of the appellant triggered the filing of this appeal by the state.  The grounds of appeal are:-

1. THATthe learned magistrate erred in law and fact by acquitting the respondent against the weight of overwhelming evidence to place him on his defence and eventually convict him.

2. THATthe honourable magistrate erred in law and fact by expunging unchallenged expert witness reports on record without any reason known in law.

3. THATthe learned magistrate erred in law by relying on extraneous matters to acquit the respondent.

4. THATthe learned magistrate erred in law and fact by expunging properly admitted prosecution exhibits from the record without any basis of law

5. THATthe learned magistrate misapplied the law and arrived at a wrong decision by acquitting the respondent

6. THATthe learned magistrate erred in law and fact by disregarding expert evidence without any lawful basis.

Mr. Monda appeared for the state. Counsel submitted that the evidence against the respondent was overwhelming.  The trial court started on a wrong footing in its ruling by stating that the respondent was a man under siege.  The trial court wrongly proceeded and expunged the document examiner's report which had been produced.  This is unheard of.  Counsel contend that the trial court introduced its own theories in order to justify its findings by stating as follows;

“there is no evidence to show that the original proceedings are in possession of power of the accused person and neither does it appear to be from the evidence on record.  The accused person pleaded not guilty which means he does not know the existence.  Conclusion or contents of the documents sought to be proved against him”.

Mr. Monda further submit that the trial court wrongly invoked section 68 of the Evidence Act by rejecting photocopied documents.  The documents were duly produced with no objection from the defence.  The court could not subsequently reject those documents which form part of the evidence.  Counsel maintains that it was sufficient that MRS JOYCE MANYASI, a former Chief Magistrate, had disowned the proceedings in question.  The trial court even went on to demean the stature of the former Chief Magistrate.

Counsel submit that the prosecution was not accorded the right to close its case.  The ruling by the trial court is premature.  PW2, a Judicial Officer, disowned a purported signature on the documents.  The trial court went on to find that the signature of the Judicial Officer ought to have been subjected to forensic examination.  Further, the trial court delivered a ruling during the hearing finding that the court executive officer could not be compelled to produce what did not exist.  In its ruling, the trial magistrate turned around and held that the prosecution did not know the whereabouts of the original proceedings if at all they did exist.

It is submitted for the appellant that the respondent should have been called upon to prove the existence of the alleged proceedings since these were facts peculiarly within his personal knowledge.

Mr. Gekanana appeared for the respondent.  Counsel supports the decision of the trial court.  It is submitted that the trial court relied on the case of JOHN WANDERA -VS- UGANDA (2001) UGHC, 12and dealt with  count one on the issue of making documents without authority.  Counsel also submitted that the trial court properly expunged the document examiner's report as the report contained several anomalies.  The trial court relied on the case of JOHN WAINAINA V REPUBLIC [2005] eKLR  and found that there was no nexus between the respondent and the evidence on the documents allegedly made by the respondent.

Mr. Gekanana further submit that some of the produced documents were allegedly found with Mr. Joseph Munyithia advocate who was not called to testify.  Documents that were produced were photocopies and there was no evidence to show that the respondent had the originals.  Further, the respondent's signatures or handwriting was not subjected to forensic examination.

The documents relied upon were photocopies which had passed through many hands.  A court order was purportedly used to make an entry at the land registry in respect of plot number 622, Kibokoni Malindi.  The court order was not produced.  Although PW1 alleged that the sequencing of court case did not include case No.18A, PW5, a court officer testified that such mode of registration of cases did exist.

It is Mr. Gekanana's contention that the prosecution did not establish a prima facie case against the respondent.  The sources of the exhibits presented to the court were unknown, photocopies were relied upon instead of the originals, the respondent's hand writing samples were not taken for analysis before the document examiner, the original owners of plot number 622, Malindi were not called to testify.

This is a first appeal and the court is duty bound to examine the record of the trial court and make its own findings.  Before the trial court, eleven witnesses testified.  The case was partly heard by L. Mutende who was a chief magistrate before being appointed as a Judge of the High Court.  Mr. Shikanda, then an acting Senior Resident Magistrate took over the case and heard it afresh.

PW1 JOYCE MANYASI testified that she used to be a Chief Magistrate in Malindi from 5/1/1998 to August 2004.  Sometimes in April 2009 she was called by Mr. Joseph Munyithia Advocate who is based in Mombasa.  She went to Mombasa and met the advocate.  She was shown some proceedings for case number CMCC 18A of 2004 at Malindi, HOTMANN COTOVA -VS- KARL HEINZ BORNER, MIRKO BLATTERMANN and HELMUT KOSTER.  The proceedings were conducted on 2/3/2004 and Judgment set for 29/3/2004.  The proceedings relate to a house located on plot NO.622 Malindi.

It is PW1's evidence that she did not handle such a matter.  She observed that the proceedings were not recorded in the same manner she used to record her own proceedings.  The case proceeded ex-parte yet the witnesses were being cross-examined by their own Advocate.  According to her, there was no serialization of cases like NO.18A or 18B. She read the Judgment and observed that it is not a proper Judgment.  It does not give a summary of the purported evidence.  PW1 prepared an affidavit disowning the proceedings which affidavit was sworn on 16/2/2011.

PW2 DANIEL OGEMBO OGOLLA worked as a Magistrate at the Malindi Law Courts from February 2004 to June 2010.  He also acted as the Deputy Registrar of the High Court.  On 4/4/2011 he met the investigating officer who showed him certified copies of proceedings for Malindi CMCC 18A of 2004.  He was shown a signature indicating that he certified the proceedings.  He noted that the signature was not his.  In August 2011, Corporal Ogolla went to see him and showed him an order relating to Misc Civil Suit No.5 of 2007 at Malindi, HOTMANN COTOVA -V- KARL HEINZ & 2 OTHERS .  There was a court order purportedly signed by him.  He denounced the signature on the order which was issued on 22/2/2007.

PW3 SHABIR HATIM ALI TAHERN testified that he is a businessman in Malindi.  His late father used to be the caretaker of Vasco Da Gama lodge which is located on plot No. Malindi/622.  Before his father retired he was introduced to the owners and he took over from his father as the caretaker.  The owners went back to Germany.  In 2000 he received an e-mail from Mirko Blatterman one of the owners, asking him if he could get a buyer for the property.  In 2007 he received a phone call from the respondent.  He told him that the property no longer belonged to the Germans and he had taken over through a court order issued by the Malindi Court.  PW3 asked the respondent to meet him.

It is PW3's evidence that the respondent went to his boutique shop in Malindi and showed him a decree and court orders.  PW3 was not aware of any court case.  He was shown a Judgment in respect of Civil Case No. CMCC 18A of 2004 Malindi.  The plaintiff was G. Hotmann Cotova and the three German owners were the defendants.  According to PW3, the respondent also showed him a court order in respect of Malindi Civil Suit No.5 of 2007.  The parties are the same.  The registrar of titles was directed to issue a provisional certificate in respect of Malindi/622 to G. Hotman Cotova.  The order was signed by D. Ogembo on 22/2/2007.  It is PW3's evidence that having been shown the court documents, he agreed to the respondent taking over the land.  They started investigations and found out that the court orders were not genuine.  He reported to the Anti Corruption office at Mombasa.  In 2010 Blatterman sent him a power of Attorney.  The police investigated the case and charged the respondent.  It is his further evidence that Alex Ziro (PW4) used to live on the property.

PW4 ALEX KITSAO SULUBU ZIRO used to work at Vasco Da Gama lodge as a gardener.  He was employed in 1990.  He worked with the original owner WOLFGANG from 1990 to 1995 before the lodge was sold to the three Germans.  He continued to work under the new owner.  PW3 later became the caretaker.

On 14/3/2007 he was on duty at the lodge when the respondent informed him that he had gone to Germany and met the three owners of the property.  The owners gave him authority to sell the property for kshs.30 million.  The respondent promised to give PW4 kshs. 2 million once the property was sold.  PW4 notified PW3.  PW3 showed him court documents which he claimed were given to him by the respondent.

It is PW4's evidence that on 15/3/2007 David Muiruri went to the premises with two security guards.  He claimed to have taken over the lodge.  One guard was to guard during the day and the other at night.  The respondent promised to pay PW4 kshs.4,300/= as his salary from March 2007.  PW4 continued working at the property.  Pw4's further evidence is that at one time the respondent threatened him with a gun.  He reported the matter to the police under Occurrence Book NO. 43/14/10/2010.

PW5, TOWASH ZEPHANIA MARO is a court officer who was in charge of the Civil Registry at the Malindi Law Courts.  On 1/8/2014 he received summons from Corpral Mwaniki asking him to trace files for case number 18A of 2004 and Civil Miscellaneous 5 of 2007.  He checked the register and found some pages missing.  They were torn or plucked out.  He saw an entry No. MISC. 5 of 2007 with no date.  It is indicated as in the matter of plot No.622 Kibokoni Malindi.  He could not trace the files in respect of the two cases.  The register showed case No.28A of 2000 and 28B of 2007.  There were also case Nos. 241A/2001 and 370A/1999.  According to him that was irregular.  A letter dated 8/3/2010 from Max International addressed to the executive officer, Malindi Law Courts was received.  The letter sought the proceedings in CMCC 18A of 2004.  One Imani  Sango, a court officer responded to the letter.

PW6 DICK JAMES SAFARI is a registrar of titles who was based in Mombasa.  His evidence is that plot No.622 Malindi was registered in 1930 in the name of Major P.C. jack.  On 23/3/1979 it was transferred to Fredrick Tsuma.  On 14/9/1979 it was registered in the name of South Beach (Mombasa Ltd).  On 29/1/1980 Wolfgang Kosing became the registered owner.  On 3/5/1995 Bruno Pezzota claimed purchasers interest.  The caveat by Bruno was lifted.

PW7 PETER MBIU MACHARIA used to be a clerical officer at the Malindi Law Courts before his transfer to Mombasa Law Courts.  He was the clerk attending to PW1.  He was shown the proceedings for the two cases No. CMCC 18A/2004 and MISC 5/2007 by a police officer.  It is his evidence that he did not attend to such a matter.  It is his evidence that PW1 never used to sign the proceedings.  He knew the respondent personally.  He could not remember seeing the respondent testifying in court.

PW8 ALI BAKARI MOHAMMED alias DARIO testified that he is a member of the County Assembly of Lamu.  Sometimes in June 2010 PW3 informed him about the court proceedings.  He knew the respondent.  He was shown the court documents which indicates that the respondent is the owner of Vasco Da Gama lodge.  He went to see PW1 and PW2 who denied conducting the proceedings.  The matter was reported to the police.

PW9 Chief Inspector DANIEL GUTUS is a document examiner.  He produced reports made by his colleague Antipus Nyanjwa on comparison of PW1's signatures.    The report indicate that the documents marked as having been signed by PW1 were found not to contain PW1's signature.  Examination was also done on the signatures of PW2.  It was found that the signatures on the documents purported to have been signed by PW2 were signed by a different author.

PW10 COLLETTA MAWEU was an Assistant Registrar of Companies at Sheria House Nairobi.  On 22/3/2011 she received a letter from Malindi C.I.D. requesting for details of Max International Co. Ltd., The empires and partners Investment Ltd and White house International Co. Ltd.  The records showed that the directors of Max International Co. Ltd were David Muiruri, Bramucci, Massimilliano,   Samira Mohammed and Amida Abdulrasul Bayan.  Hotmann Cotova Ltd Company did not appear in their database of registered companies.

Empire and Partners Investment is a business name registered by David Mwangi Muiruri as the owner.  Initially it was owned by Sylvia Hildegare Eram.  White House International is a business name registered on 18/6/2007 under the names of Syliva Hildegarde and David Mwangi Muiruri.

PW11 Corporal GEORGE OGOLLA Investigated the case.  He visited the Malindi Law Courts to trace the file for case Nos. 18A of 2004 and Misc. 5/2007.  The case was referred to the CID Headquarters by the Kenya Anti Corruption Commission.  The court files could not be traced.  He saw the court documents which indicate that plot NO.622 Malindi was to be surrendered to G. Hotman Cotova which company was associated with the respondent.  The court proceedings indicated that one Lilian Awiti Amolo was the Advocate for G. Hotman.  The said Advocate died on 27/3/2005 and could not have acted in 2007.  PW11 caused the respondent to be charged in court.

The appeal raises  one fundamental issue;  Did the prosecution establish a prima facie case that could have led the respondent being placed on his defence?  That is the only issue for determination.

The trial court in its ruling made reference to the case of RAMANLAL T. BHATT -V- REPUBLIC[1957] E.A. 332. In that case the judges of the Court of Appeal for East Africa noted at page 335 as follows;

“A mere scintilla of evidence can never be enough; nor can any amount of worthless discredited evidence.  It is true, as WILSON J., said, that the court is not required at that stage to decide finally whether the evidence is worthy of credit, or whether if believed it is weighty enough to prove the case conclusively; that final determination can only properly be made when the case for the defence has been heard.  It may not be easy to define what is meant by a “prima facie case,” but at least it must mean one of which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence”.

I have gone through the twenty two pages of the ruling of the trial magistrate.  The learned magistrate went through each and every count and found that the evidence on record did not prove any of the nine counts the respondent was facing.  A good starting point is for the court to pose the question, what were the prosecution's allegations against the respondent (accused)?.  What were the charges levelled against the accused?  Does the evidence sufficiently establish some criminal culpability on the part of the accused to warrant having the accused being put on his defence?  As indicated in the case of Bhatt, (Supra), putting the accused on his defence should not be done in the hope that the defence will fill the gaps in the prosecution case.

The prosecution was alleging that the respondent made some documents without authority.  These documents are namely proceedings in Malindi CMCC 18A of 2004, Malindi Miscellaneous Civil Suit Number 5 of 2007, a vesting order and a court decree.  The prosecution's case is that there were no such proceedings in Malindi.  There was no court decree or vesting order issued by the Malindi Court.  It is the prosecution's contention that the respondent forged the documents and presented them at the Mombasa lands office.  Further, the prosecution maintain that the respondent procured the registration of plot number 622 Malindi in favour of G. Hotman Cottova Company which company is owned by the respondent.

Those were the allegations made against the respondent.  Did the evidence establish some criminal culpability against the respondent?  The record shows that PW1, JOYCE MONYASI, was a chief magistrate at the Malindi Court.  She told the court that the proceedings were not genuine.  Apart from the style of the proceedings, she testified that she never presided over the case or sign the alleged proceedings.  There is the evidence of PW2, DANIEL OGEMBO.  He too was a magistrate in Malindi.  He denied certifying the alleged proceedings.

According to the evidence of PW3, he was shown the court proceedings by the respondent.  The respondent told PW3 that he was the new owner of plot number 622 through the court proceedings.  Indeed the evidence proved that the respondent went ahead and claimed the property.  Alex Sulubu, PW4, informed the court that the respondent went to the premises with two security guards and took over the property.  The investigating officer testified that he visited the land registry in Mombasa and found that a transfer was made in favour of G. Hotman Cotova.  The transfer was made on the strength of a court order.

PW10 COLLETTA MAWEU Informed the court that the company by the name G. Hotman Cotova Ltd did not appear in the data base of the registrar of companies.

I have observed that the trial magistrate did not take into consideration the details of the alleged proceedings themselves but rather concentrated on the manner in which the signatures on the documents were subjected to forensic examination.  The trial court held that the respondent's signature and handwriting were not subjected to examination.  That was not necessary.  The proceedings produced in court were typed.  The signatures appearing on the document are not those of the respondent.  It was alleged by the prosecution that although the proceedings indicated that the proceedings were signed by the two Judicial officers, they were not.  The charge of making documents without authority is not proved by establishing that the accused did not sign the alleged document.  The fact that the document was produced and the prosecution alleged that it was made by the accused was sufficient enough to call upon the accused to defend himself.

I have carefully read the proceedings in Malindi CMCC 18A of 2004.  For purposes of clarity, I will reproduce the evidence of PW1 David Muiruri in those proceedings which reads as follows;-

2/3/2005

“Coram

Before JOYCE MANYASI CM

Court clerk – Mbiu

Awiti Omolo present for the plaintiff

Case is coming for hearing and I am ready with my witnesses

Court:  - Proceed

PW1 (Christian sworn with a bible)

My names are David Muiruri.  I live in Malindi.

I am a businessman building contractor hotelier and a process server of the High Court of Kenya.  I have my office in Mombasa along the Moi Avenue and another one in Malindi which is within Barani area.  I am the sole Director of G. Hotman Cotova which is registered and licenced in construction, hotel and restaurants, management, agents in booking and reservations, tours etc.

I remember very well on the 20th day of April 1995 the defendants herein bought a parcel of land at Kibokoni from Kosing.  The agreement for the sale was witnessed by Joseph Muisyo who is an Advocate of the High Court  of Kenya but the same was drawn and filed by DON AMOLO ESQ ADVOCATE Utumishi House along Jomo Kenyatta Road, P.O. Box 623 Malindi.  May I produce this Sale  Agreement as Exhibit 1.  (PEX.1).  The Sale Agreement was for Plot Number 622 Kiboboni but its original number was M.17G.  After buying this parcel of land, the Defendants contracted me to supply building materials and construct a house for them on the parcel of land.  We further agreed that I could provide all the house holds items and only hand over the keys to the Defendants when everything was complete.  I was also to use my pocket to pay for the gardener and askari until the owners come to pay me.

We had agreed that I use my money in everything and my payments would be made whenever I handed over the keys  to the Defendants.

I produce to court the Agreement I entered with the Defendants to take over the construction.  May this Agreement be Exhibit 2 (PEX 2).  This agreement was drawn, witnessed and filed by Zablon Atuti who is an Advocate.

When I completed the construction until today the Defendant have failed to come and take the keys so that they can pay me back.

I have continued to incur expenses and I can not wait any longer.

I request the court to order and declare that I am the new legal owner of plot 622 and the house on it due to the default of the Defendants in the contract we entered into.

JOYCE MANYASI

CHIEF MAGISTRATE

CROSS EXAMINATION by Awit Omolo Advocate

The defendants are Germans.  I do not know exactly where in Germany.  I have never seen them since we entered into contract until today I do not know whether they are alive or dead.  I do not know any of their relatives in Kenya.  In the absence of the Defendants I want a court declaration that I am the new legal owner.

JOYCE MANYASI

CHIEF MAGISTRATE”

The record also shows that the extract of the land Register in respect of plot number 622 Malindi was produced.  Entry number 6 refers to a court order in Civil Suit No.18A of 2004 dated 24/3/2004 decreeing that G. Hotman Cotova take immediate possession of the above land as the legal owner.  There is an entry indicating that there is an indenture dated 28th September, 2006 in favour of White House International.  White House International was registered in the names of Miss Sylvia Hidegard and David Mwangi Muiruri, the respondent.

Turning back to the proceedings in CMCC 18A OF 2004, apart from the evidence of PW1, there is the evidence of four other witnesses.  There is the Judgment which indicate that the respondent proved his case.

From the evidence on record, I do find that the prosecution did establish a prima facie case  which did warrant the placing of the respondent on his defence.  The respondent was alleged to have made the proceedings.  There are the proceedings which indicated that he had testified before PW1. The proceedings indicates that he was claiming his dues from the real owners of plot 622 Malindi.  The amount being claimed is not given.  The proceedings are quite erroneous as according to PW4, the premises on the property were not built by the respondent.  The respondent was supposed to be called upon and tell the court whether indeed he filed the case.  The defence marked some court receipts for payment for the case for identification.  The respondent could have either confirmed that indeed he testified before PW1 and PW2 in those two cases or denounce the proceedings.  He could have opted to remain silent.  The trial court took the case lightly and ventured into lengthy justifications for its findings which was not necessary.  With all that evidence, it is incredible that the respondent was not put on his own defence.  The trial court ought to have asked itself, if it was true as per the evidence of PW4 that the respondent took over plot 622, what could have been his basis for such action.  Putting him on his defence would have enabled the court to know the respondent's explanation on the matter.

The trial Magistrate held that the prosecution did not produce previous proceedings of PW1 to compare with those produced.  The Magistrate was convinced that the proceedings produced by the prosecution were irregular and the language used does not befit the status of a magistrate of whatever rank.  Those were the contentions of the state.  There were no need to compare those proceedings with previous genuine ones.  It was the prosecution's case that it was the respondent who made those proceedings.  The respondent ought to have been called upon and tell the court what he knew about those proceedings.

The trial court did observe that the land register did indicate that plot number 622 Malindi was previously registered in the names of Karl Heinz Bornor, Mirko Blattermann and Helmut Koster before it was transferred in the name of G. Hotmann Cotovo through a court order.  The learned magistrate held that the original owners were not called to testify and confirm whether they did or not participate in the proceedings.  The prosecution's case was that those proceedings were  made up by the accused.  It was upon the trial court to put the accused on his defence to deny or confirm if he participated in the proceedings.  The trial magistrate observed that he agreed that the proceedings were irregular.  Why was the trial court expecting the original registered owners to have participated in those irregular proceedings?.

The trial court blamed the manner in which investigations were conducted. It also found that the original court proceedings disappearance left a lot to be desired.  Had the trial court put the accused on his defence, it could have obtained evidence as to whether the proceedings were genuine or not.  The court itself observed that the proceedings were irregular.  The charge was that the proceedings were made up by the accused.  It is therefore not logical to expect those same made up records to be part of the court records of the Malindi Law Courts.  It was upto the respondent to tell the court in his defence how he participated in the proceedings as he is the plaintiff.

I do agree with the contentions by Mr. Monda that the evidence on record does shift the burden to the accused.  The proceedings show that the respondent participated in those two cases namely Malindi CMCC 18/2004 and MISC. 5/2007 and procured registration of the property in his favour.  There is need for the respondent to give his side of the case.

In the end, I do find that the appeal is merited.  I do find that there was sufficient evidence to put the respondent on his defence.  The ruling acquitting the respondent is hereby set aside.  The respondent is hereby put on his defence.  The matter is hereby referred to the Chief Magistrate's court for completion.

SAID CHITEMBWE

JUDGE

Dated, signed and delivered at Malindi this 20th  day of July,  2017.

WILDON KORIR

JUDGE