(Being an Appeal form the decision by J.W Wesonga Senior Principal Magistrate in Malindi Criminal Case No. 548 of 2023 dated 6 th November, 2025)
1. The appellants were charged with two counts of forcible detainer contrary to Section 90 of the Penal Code. Its was alleged that on 4 th and 5 th August, 2021 within Kilifi County took possession of land parcels LR. No. 16873 original number 11021 and LR No. 16870, 16872 original number 11021 belonging to Suleiman Said Suleiman and Jamal Hafidh Mohamed respectively without colour of right while armed with pangas, tape measures and jembes and held possession of the said parcels of land in a manner likely to cause a breach of peace or reasonable apprehension of breach of peace against the said Suleiman Said Suleiman and Jamal Hafidh Mohamed who are entitled to the said parcels of land.
2. The appellants pleaded not guilty when they were arraigned in court. The prosecution called 5 witnesses in support of the charges. The appellants gave sworn statements denying the charges and brought forth defence of alibi. The trial court adjudged the appellants guilty of the charges and convicted and sentenced them to pay a fine of Kshs. 20,000/= in default to serve 6 months.
3. The appellants were aggrieved by the conviction and sentence of the trial court and preferred this appeal raising several grounds. Those grounds centres on whether the appellants were positively identified as being among the persons who invaded the complainants’ land.
4. In their submissions the appellants faulted the trial court for ignoring the evidence of the key witnesses to with PW1 and PW4 who were the eye witnesses and who testified that they did not see the appellants at the scene on the material dates.
5. The respondent did not file submissions but the prosecution counsel informed the court that she supported the conviction and sentence.
6. This being the first appeal before this court, as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the advantage of hearing and seeing the witnesses testify in court. (See Okano vs Republic (1972) E.A 32, Njoroge vs Republic (1987) KLR 19).
7. As I have indicated the determination of this appeal depends on whether the appellants were identified at the scene during the material time the offence is alleged to have been committed. The defence counsel submitted at length on this issue. I have considered the appellants’ submissions on this issue.
8. From the evidence adduced, PW1 told the court that he was engaged by PW2 as caretaker of his parcel of land. He told the court that on 4 th August, 2021 a group of people invaded the land belonging to PW2 and PW3. PW1 said there were many people who invaded the land armed with crude weapons and started subdividing it. He called PW2 and informed him of the incident. On he further said the land was also invaded on 5 th August, 2021 by a group of people. He again informed PW2.
9. PW2 upon getting the information he reported to the police and also informed PW3 whose land was also invaded. The matter was reported to the police. The OCS went to the scene. when the invaders saw the police vehicle they started leaving the scene one by one.
10. PW4 who said he was called by PW2 told the court that when he went to the scene he found people invading the land. When PW2 came with the police the invaders ran away but others remained. He alleged to have seen the 1 st , 4 th and 5 th appellants at the scene. He said he was about 2km away from the land.
11. The trial court in its finding, held that the appellants were identified by way of recognition because they were known the prosecution witnesses.
12. In my assessment of the evidence adduced by the prosecution, it is clear that PW1 was the key witness in this case. In his evidence he did not state having identified the appellants. All he said was that the land was invaded by many people. PW4 who alleged to have seen the appellants at the scene said he was about 2km away. The complainants themselves did not allude to seeing the appellants at the scene. Their evidence is that they gave names to the police. It is not clear where they got the names of the invaders. It can only be assumed they gave the names of the appellants because they were known to them and they had a civil land dispute pending in court where the appellants are parties.
13. From the foregoing, I disagree with the finding of the trial court that the appellants were identified by recognition by the prosecution witnesses. I state so because the invaders were estimated to be over 200 people. How the prosecution settled on the appellants is baffling.
14. The appellants gave defence of alibi. Going by the foregoing, the trial court ought to have considered the said defence and find that the same was credible.
15. In the circumstances I am not persuaded that the prosecution proved the charges as required and the appellants are hereby acquitted. The conviction and sentence of the trial court is hereby set aside. The fines if paid shall be refunded to the appellants.
Dated, signed and delivered virtually this 20 th July, 2026
Francis N. Kyambia
Judge
In the presence of:
Kenga for the appellants appearing virtually.
Ms. Mutua for respondent appearing virtually.
Ms. Otwo Court Assistant.
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1. The appellants were charged with two counts of forcible detainer contrary to Section 90 of the Penal Code. Its was alleged that on 4 th and 5 th August, 2021 within Kilifi County took possession of land parcels LR. No. 16873 original number 11021 and LR No. 16870, 16872 original number 11021 belonging to Suleiman Said Suleiman and Jamal Hafidh Mohamed respectively without colour of right while armed with pangas, tape measures and jembes and held possession of the said parcels of land in a manner likely to cause a breach of peace or reasonable apprehension of breach of peace against the said Suleiman Said Suleiman and Jamal Hafidh Mohamed who are entitled to the said parcels of land.
2. The appellants pleaded not guilty when they were arraigned in court. The prosecution called 5 witnesses in support of the charges. The appellants gave sworn statements denying the charges and brought forth defence of alibi. The trial court adjudged the appellants guilty of the charges and convicted and sentenced them to pay a fine of Kshs. 20,000/= in default to serve 6 months.
3. The appellants were aggrieved by the conviction and sentence of the trial court and preferred this appeal raising several grounds. Those grounds centres on whether the appellants were positively identified as being among the persons who invaded the complainants’ land.
4. In their submissions the appellants faulted the trial court for ignoring the evidence of the key witnesses to with PW1 and PW4 who were the eye witnesses and who testified that they did not see the appellants at the scene on the material dates.
5. The respondent did not file submissions but the prosecution counsel informed the court that she supported the conviction and sentence.
6. This being the first appeal before this court, as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the advantage of hearing and seeing the witnesses testify in court. (See Okano vs Republic (1972) E.A 32, Njoroge vs Republic (1987) KLR 19).
7. As I have indicated the determination of this appeal depends on whether the appellants were identified at the scene during the material time the offence is alleged to have been committed. The defence counsel submitted at length on this issue. I have considered the appellants’ submissions on this issue.
8. From the evidence adduced, PW1 told the court that he was engaged by PW2 as caretaker of his parcel of land. He told the court that on 4 th August, 2021 a group of people invaded the land belonging to PW2 and PW3. PW1 said there were many people who invaded the land armed with crude weapons and started subdividing it. He called PW2 and informed him of the incident. On he further said the land was also invaded on 5 th August, 2021 by a group of people. He again informed PW2.
9. PW2 upon getting the information he reported to the police and also informed PW3 whose land was also invaded. The matter was reported to the police. The OCS went to the scene. when the invaders saw the police vehicle they started leaving the scene one by one.
10. PW4 who said he was called by PW2 told the court that when he went to the scene he found people invading the land. When PW2 came with the police the invaders ran away but others remained. He alleged to have seen the 1 st , 4 th and 5 th appellants at the scene. He said he was about 2km away from the land.
11. The trial court in its finding, held that the appellants were identified by way of recognition because they were known the prosecution witnesses.
12. In my assessment of the evidence adduced by the prosecution, it is clear that PW1 was the key witness in this case. In his evidence he did not state having identified the appellants. All he said was that the land was invaded by many people. PW4 who alleged to have seen the appellants at the scene said he was about 2km away. The complainants themselves did not allude to seeing the appellants at the scene. Their evidence is that they gave names to the police. It is not clear where they got the names of the invaders. It can only be assumed they gave the names of the appellants because they were known to them and they had a civil land dispute pending in court where the appellants are parties.
13. From the foregoing, I disagree with the finding of the trial court that the appellants were identified by recognition by the prosecution witnesses. I state so because the invaders were estimated to be over 200 people. How the prosecution settled on the appellants is baffling.
14. The appellants gave defence of alibi. Going by the foregoing, the trial court ought to have considered the said defence and find that the same was credible.
15. In the circumstances I am not persuaded that the prosecution proved the charges as required and the appellants are hereby acquitted. The conviction and sentence of the trial court is hereby set aside. The fines if paid shall be refunded to the appellants.
Dated, signed and delivered virtually this 20 th July, 2026
Francis N. Kyambia
Judge
In the presence of:
Kenga for the appellants appearing virtually.
Ms. Mutua for respondent appearing virtually.
Ms. Otwo Court Assistant.
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