1. The accused was charged with Conspiracy to Defraud contrary to Section 317 of the Penal Code , the particulars of the charge are that: On diverse dates between 2012 and 2021 at Kantafu location in Matungulu sublocation within Machakos County jointly with others not before court conspired to defraud the estate of the late Charles Mwangi Hinga two plots No 4 and 5 plots No DONYO SABUK KOMAROCK BLOCK 1/7794 measuring approximately 41x 118 feet valued at 2000000 two million shillings only by falsely claiming that he had bought it from Selina Kalekye a fact he knew to be false.
Count 2 : Forcible detainer contrary to Section 91 as read with Section 36 of the Penal Code.
On diverse dates between 2012 and 2021 at Kantafu location Matungulu sub location within Machakos County the accused was found in possession of plot No 4 and 5 Land Parcel No DONYO SABUK KOMAROCK BLOCK 1/7794 measuring approximately 41x 118 feet valued at 2000000 two million shillings without any colour of right held possession of the said parcel in a manner likely to cause a breach of peace of Joyce Nyambura Gachangi who is entitled by law to be in possession of the said parcel of land.
2. The Accused was convicted on Count 2 and was sentenced to serve 1 year probation sentence.
THE APPEAL
3. Aggrieved, the Accused preferred his appeal vide the PETITION OF APPEAL filed on 29/11/2023 on GROUNDS THAT ;
4. The Learned Magistrate erred in law and fact and misdirected herself
1. In failing to consider the discrepancies and contradictions in the prosecution’s evidence.
2. In failing to consider the Appellant’s evidence.
3. By holding that the prosecution proved the case of forcible detainer.
4. By considering that the prosecution evidence was credible and placing reliance on it.
5. Failing to consider that the accused had a valid contract for sale for designated plot No 4 and exchange agreement of plot No 47 with plot No 5 in LR No DONYO SABUK KOMAROCK BLOCK 1/7794 which facts were not controverted
6. That the court failed to consider that the agreement was confirmed to be valid by the purported co- conspirator and that the accused was acquitted on Count 1.
7. The court failed to consider that the agreement and the exchange agreement was prepared by the purported co-conspirator and her husband.
8. The court failed to consider the ingredients of the offence of forcible detainer
9. By holding that the ballot produced by the complainant was proof of ownership of title designated Plot No 4 and 5 in LR No DONYO SABUK KOMAROCK BLOCK 1/7794
10. By holding that the accused was not a bonafide purchaser for value and that he had no color of right to be in possession of designated Plot No 4 and 5.
11. Holding that the Appellant was in possession of the designate Plot No 4 and 5 in a manner likely to cause breach of peace or reasonable apprehension of a breach pf peace against a person entitled by law to the possession of the land.
12. That the court relied on its opinion to fill the gaps in the prosecution case
13. That the court mispresented the evidence given as official documents of record veracity of ownership motive and intention of the complainant and the prosecution witnesses.
14. That the court failed to consider the contradictory testimony and evidence on interference with official records of the registered owner of the mother title and the balloting records and outcomes of existing orders of civil court decisions with regard to the subject mother title.
JUDGMENT OF THE COURT
5. The Court found that the co accused were not before court and that conspiracy was not proved. That the deceased and the accused were bonafide members of Mwanzo Self Help group. The deceased balloted for Plot No 4 and 5 which was confirmed during cross examination in the defense case.
6. That the Accused alleged that he bought the land from Selina Kalekye but there was no evidence that the person was a member of the Self Help Group .The accused also stated in defense that he went to Pw5 to confirm that the Plot No. 4 belonged to Selina Kalekye . That this was not posed to Pw5 during cross examination, Pw5 also said he did not transact with D.K Nganga in respect with Plots No 4 and 5.The accused did not have any right over the land.
7. Lastly that the accused admitted being in actual possession of the suit property.
8. On sentence, the accused mitigation was considered when he prayed for leniency and a non-custodial sentence, He was a first offender and he was remorseful as indicated in the presentence report.
THE EVIDENCE AT THE TRIAL
9. Pw1 Joyce Nyambura Gachangi, a business lady and that she makes dresses. That the late Charles Mwangi Timothy is her husband and that he was a member of Mwanzo Self Help group which bought land in Kantafu Komarock, plots Her husband bought Plot No 4&5. She could not remember when the plots were bought but her husband died on 23/2/2002.
10. The Accused was an official of the Self-Help group and they were also in the same estate. Her husband gave her documents to keep, 3 months after his death, she went to the Self Help group former office at Jogoo Road and she found Benson Mwangi the former chairman, Patrick Mururi Kagundu who was the secretary and the Treasurer who was the late Christopher Waweru.
11. The Secretary and the Treasurer gave her the allotment letter at the office. She was told that her husband had contributed for 2 Plots. She was told later that there were new officials of the Self- Help Group. That the Accused was the Treasurer and Maina was the new Chairman. That she knew the new officials and she also attended meetings they called.
12. That the Accused told her that her husband’s Plots had been sold, he did not tell her who had bought the plots. She decided to fence so that the new buyer could come out, she went with her son and fenced the plots.
13. That the next day the neighbor called and said that the Accused had demolished the fence. She reported the issue to KBC police station and she and the accused were summoned by the OCS. She presented her documents before the OCS and asked the accused to present his but he did not have them. That the accused argued with the OCS and she was advised to sue the accused. She reported the matter at the Land Fraud Unit where she met Mr Komesha who handed her to Kareithi where she recorded her statement. That James Mwongera took over the case after the officer was transferred.
14. That the Accused had put up a structures for chicken and a toilet, he had fenced Plot No 4. That plot No 5 was not fenced but it had sand.
15. She said during cross examination that her husband was a member of the group , he told her that they had started a group but she could not remember the time it was started .He told her it was a land buying company . That her husband was still contributing in 1998. That she knew Benson Mwangi who is the chairman, Patrick Muturi Ndiangui,Stephen Mureithi and Nderitu Manjugi who were part of the people who started the group.That the accused was present when the group was started.That she met the initial officials when she went to follow up on the plots after her husband died. That the accused and Maina Kanyumbi Muchoki were the current officials.
16. That she did not know of any dealings between her husband and the officials or any other plot that he had. That her husband was given the ballots although she did not know when balloting was done. That the OCS said she should sue the accused because he did not have documents but he was claiming the plots .
17. PW2 Benson Mwangi Kibia stated that he was one of the founding members of the Self -Help group which was formed in 1996. That elections were held after 2 years and he was the Vice Chairman, then he was elected as the chairman, a position he held for 14 years between 1998 and 2023.That Charles Mwangi was also a member and the group account signatory. That the group held land at Kantutu near KBC in Komarock, that it started with 79 members and reduced to 52 active members. That Charles Mwangi Hinga owned plots 4&5, he was not aware of any sale.
18. The accused was a member of the group, he did not have any position when he was the chairman but was the Treasurer at the time. That he was in occupation of plot No 4 but he did not know whether the plot in question was his. That the accused has his plot where he has constructed a home and Plot No. 4 and 5 belonged to Charles Mwangi Hinga.
19. He stated during cross examination that he knew the number of members because he was the chairman. That there was a record when members were recruited in 1996 during elections. That the numbers decreased. The deceased had balloted for 3 plots but he failed to pay for them. He paid for 2 plots. That anyone who had Ksh 13,500/= qualified for a plot in the year 2000.
20. That they decided to but land in 1996 and they finally did not. In 1998 they did and 30 members qualified for a plot as per their contributions. That plots were allocated and the Final List was submitted. That they balloted using another list, the ballot list had names of members who had not completed payment. The deceased balloted for No 4 and 5 on 13/8/2000.Penina Wangui had signed for No 4 but she did not complete payment. The deceased paid Ksh 27,000/= and there are records of payment . There was also an understanding that those who paid Ksh 8000 were allowed to ballot.
21. That he was not notified of sale of the deceased plot, the mechanism of notifying the office was through an official notification. He also said that he had never sold his plot, that Plot 52 belongs to him but someone else is in occupation.
22. PW3 Josphat Duncan Ngunjiri was the Secretary of the Self Help group between June 1996 and 29/10/1998 That they were 100 members and they would meet every Wednesday and agreed to contribute 100ksh.In mid- 1997 they agreed to buy property with the savings, they settled on land which they bought from a person called Mboya .
23. The land is in Kangundo road next to KBC booster, they bought 10 acres, 1 acre was Ksh 58,000/= and they paid Ksh 580,000/= in installments. They subdivided it to 52 plots 50 x 100 acres. That the survey was done and placed beacons. That on 29/10/1998 they held a meeting and members became rowdy, they wanted an election. That Francis Maina was the chairman and he was taking Minutes. That they were voted out and the people elected were:-
a. Benson Mwangi
b. Moses Mukaja
c. Christopher Kagotho
24. That the new members planned balloting for members which was done on 13/8/2000, the deceased took plot No 4 & 5 while he took 23,28,36 and 37. That after balloting each member would go to the Chairman and the ballot paper would be signed and entered into the Register. The witness identified the Register and the List of balloting for the year 2001 marked as MFI 3 and 4 where the deceased was No. 31 and the Accused was No. 15 had balloted for Plot No 30.
25. That the members were shown the Plots and they waited for title deeds. That the accused plot No 30 is not close to Plot No 4 & 5 and one has to cross the road. That the land was vacant. The Accused was placed on the land when the members disagreed after election of new officials.
26. PW3 was cross examined, he stated that MFI 4 which was the list of members did not have signatures. That the deceased balloted after him , that the member would give his ID number during balloting. That all members got ballot papers, if a member wanted to sell it was required that the parties go to the group office.
27. Pw4 Julius Muchoki Githinji , the Secretary of the Self-Help group at the time the case started since 2013, that the deceased was a member when the group started and that balloting was done at Shauri Moyo in the year 2000. That he did not see the deceased that day, he was a member and he made contributions. He must have had a plot. That his name is No. 21 on the list, that they were shown plots after about 2 months. He never saw the deceased when they went to see the plots. That he noted from the documents that at some point the deceased had been allocated plot No 4 ,5 & 6 and then 4 and 5 and also plot No 49, 48 & 50. He referred to allotment of plots dated 13/3/2021 marked as MFI 5. The accused plot is 48 49 50 and Patrick Muturi Kangundo had plot 4 and 5.
28. That he noted the discrepancy and in 2015 the officials sought to find out what was happening. The deceased died on 23/2/2002 while the balloting was in 2000. That he interacted with the deceased during meetings when they made contributions, he never went to see the deceased plots. Further that the accused was the current Treasurer, he joined the group in 1996 and they were elected together in 2013. That the accused also balloted. The deceased had not developed his plot.
29. That he was able to know his plot by counting from the first plot, the surveyor also placed beacons. The plot No. 4 & 5 were with the accused at the time but the plot numbers were not the accused in the documents .The accused bought the plot from D.K Nganga who was also a member.
30. That D.K Nganga bought from Patrick Kangundo who was the Secretary in the first group. That he indicated that he was selling on behalf of the deceased who was ill at the time.
31. That D.K Nganga is deceased though he was not the Secretary when he died. That the officials saw the discrepancy and they decided to give plot No 6 to the deceased’s wife.
32. He stated during cross examination that his name is indicated as No. 22 and he is allotee for Plot No 21. That they signed the Register. He was shown DMFI 1 showing the same details and that he signed the List. The deceased is listed as No. 30 for plots No. 5 and 6 and Selina Wangui is listed as No. 31 for Plot No 4 . This was compared to MFI 4.
33. The custodian of DMFI 1 was Amukaja,he was also referred to the extract of the diary marked as DMFI 2. That it shows that D.K Nganga paid the deceased. MFI 4 indicated that Plot 47 is for Charles Karacho Mwangi.
34. He stated during re-examination that, DMFI 1 indicated that plot No 4 belonged to Penina Wangui and not D.K Nganga. That entries had been altered from plot No. 4 ,5,6 to Plot No .48 , 49 , 50. That DMFI 1 has discrepancies, further the ownership of plot No 4 was not resolved.
35. Pw5 Patrick Muturi Kangundo stated that he was a member of the Self-Help Group which was formed in 1996 he joined as member No. 75 in the year 1997.That elections had been held in 1998 and shamba had been bought at Komarock. That members continued to contribute, that the shamba was 10 acres, 3 acre were sold and 7 acres were subdivided to 52 Plots. That by 1998 new officials were elected and they gave chances to members who had not made contributions to do so. He referred to MFI 3 and stated that the deceased had contributed ksh 19, 525/= between 1996-1998 and Ksh 15,000 /= between 1998 and 2000 . He referred to the account statements dated 27/11/2002 as MFI 6 .He was the secretary in 2000.
36. He further stated that the Chairman gave notice to members before balloting. That balloting was done on 13/8/2000 and that he was present, the deceased balloted for plot no 4 ,5 & 6. That he and the deceased were in the committee and they were verifying members to ensure they had made contributions before balloting.
37. That he knew the accused and he was present during balloting, he balloted for plots number 30 31 and 32 . That they gave out allotment letters and the deceased was given allotment for plot number 4 & 5 and No 6 was withdrawn. He identified MFI- 7 which is a letter of revocation dated 8/12/2001.
38. That there was a case against former officials holding office between 1998 -2014 and 2014-2015 new officials. The original allotment dated 27/10/2001 was seen by the court and marked as MFI 4.The letter by Oluoch & Co. Advocates 4/12/2014 marked as MFI-8 .
39. That the Accused was the Treasurer from 2014 and he balloted for Plot 30 ,31 and 32. They were friends until problems started when they grabbed Plots No 10-14 with Kinyanjui.Kinyanjui was convicted in Kangundo Law Courts.
40. He stated during cross examination that they had 52 Plots which were allotted to members who had contributed more than Ksh. 8000. He noted that the original Ledger produced in Court had been altered MFI-3 , that Penina name in DMFI 1 as being allotted Plot no 4 was by mistake ,she was not even a member and this was to be corrected. The record was changed, that her husband was a member.
41. That he never transacted with D.K Nganga personally and they had no interaction over Plots Numbers 4 , 5 and 6 .The Diary Extract marked as DMFI 5 had a signature that resembled his signature. That Charles Karacho had allotment No 46, the card does not belong to the Self-help group and the allotment does not have a seal. Allotment was issued after proper ballot papers which had seals. That there was a judgement from Court restraining them from dealing with the land, the case was CMCC No. 1910/2014 marked as DMFI 7.
42. He stated that he was the custodian of the ledger at the time he was in office, that the Final List of beneficiaries had 52 plots and it came to be known on 13/8/2000 when they balloted. He was referred to DMF1-1 and said that the Ballot List had many errors and it had to be done again it was not the Final List.
43. Pw6 No 70098 James Mwongera from DCI Land Fraud Unit testified that he took over the file from Thomas Kareithi who was on transfer. That the matter was reported by Pw1 on 1/12/2016 and she stated that her late husband Timothy Mwangi Ndathi was a member of Mwanzo Self-Help group and that they bought a parcel of land at Oldonyo Sabuk Komarock . Pw1 produced documents left by the deceased and given to her. Pw6 produced the shareholder ballot for plot No 4 and 5 as Exhibit 1 (a) and (b). The allotment confirmation as Exhibit 2,the Contribution List as Exhibit 4, the List of shareholders Exhibit 3.The death certificate of deceased late husband of Pw1 and Affidavit of Customary Marriage .
44. That the group did not have an office and they met in hotels, they held a meeting at New Githanu hotel in Eastleigh in 27/4/2013. That the Complainant reported that the Accused had forcibly detained on her Plots .He visited the Plots at Komarock and found that the Plots had been developed. Plot No4 had been occupied half way the Complainant showed him boundaries.
45. The Accused was called and he confirmed that it was his home, he never met with the appellant. The group members recorded their statements and they confirmed that the Plots belonged to the deceased. They gave out the List of ballot members produced as Exhibit 4 and the Contribution Account as Exhibit 6 .That Charles Mwangi contributed ksh 27, 000/= as member No 31 and he balloted for plots number 4 and 5 on 13/8/2000.
46. That he recorded the Accused’s statement, he said he bought the Land from Selina Kalekye who was serving a jail term at Machakos prison from 1/7/2019. He also recorded her and she admitted that she sold the plots to the accused. Dr. Nganga her husband also wrote to the Self- Help Group asking them not to transact on plot on No DONYO SABUK KOMAROCK BLOCK 1/7794 .
47. He stated during cross examination that the current officials declined to avail the original documents, that Exhibit 5 matched with DMF I- 1 , that in DMFI -1 indicated that the deceased was allocated Plot 5 & 6.
48. That there was an order from Court about the previous and current officials of Self Help Group. That officials changed the records of Plot no 4 & 5 but he did not manage to know the exact person who changed the records . That Selina’s husband wrote to the group and said that she had not authored any dealing with her Plots but she did not indicate the Plot numbers. That the Complainant never told him of the directions and processing of share certificates. That he never verified the details of original plot number 4 & 5 from the office and whether there was amendment.
THE DEFENCE CASE.
49. The Accused gave sworn evidence and he stated that he lived in Kantafu and that he operates a hardware at Dandora Phase 1. That he bought Plot no 4 and 5 between the year 1996 and 1998.The land was 10 acres and 7 acres was subdivided to 52 plots and 38 members qualified to get plots. He referred to DMF I - 8 and he testified that 78 members had invested Ksh 8,500/= they qualified to be allocated plots,
50. That Selina Kalekye sold to him Plot 4 in 2012 with her husband, she is still a member, that the Secretary was Patrick and he confirmed that plot No 4 belonged to Selina in the year 2012.
51. He referred to Sale Agreement with Selina dated 28/10/2012, that the seller she wanted to raise fees. Further that he exchanged plot No 5 with plot No.47 which were opposite each other. His Plot was plot 46 and 47 while Plot 5 belonged to D.K Nganga. That Charles Mwangi Karachu sold to him Plot 46 and 47. He produced the Agreement dated 28/7/2010 as D Exhibit 10 (a) and the Exchange Agreement with Plot 5 as DExhibit 10 (b)
52. The ballot paper for Plot No. 5 was produced as D Exhibit 6 (b) and it was given to him by Charles. He also referred to the confirmation letter dated 15/5/2002. That he informed the office when he bought the plots, he was not an official at the time he bought the Plots. That the Register shows that Plot number 4 and 5 belong to Charles Hinga and that he got it at the DCI office. However, D Exhibit 4 indicates that Plot 4 and 5 belonged to Muturi Kangondu and Plot No. 5 belongs to the deceased.
53. That P Exhibit 4 has a list of 37 members and that there were different versions of P Exhibit 4 which was the list of members. That the former official refused to hand over and that they went to court and the officials were forced to give them documents. He got the documents from Secretary Patrick Muturi when he bought the Plot.
54. He said during cross examination that Selina Kalekye’s name was not in DMFI 1 and her husband’s name is indicated under No plot 11-13. That D Exhibit 3 shows that 29 members had Plots. That he was given ballot for Plot no 47 but he did not have ballots for Plot No 4 and 5. The Agreement was for Plot 4 and 5 and it indicates that it was between the accused, Selina and D.K Nganga, she did not give him a ballot paper and no surveyor pointed out plots 4 and 5 to him. Further that there is no surveyor reports on the land.
55. He said that the ballot paper was with the office , it was to be given to the buyer upon payment of the balance. He had a balance of ksh 20,000/= .
56. The appeal was canvassed through written submissions.
WRITTEN SUBMISSIONS ON APPEAL.
THE APPELLANT’S SUBMISSIONS.
57. The appellant’s issues for determination as whether the prosecution proved the offence of forcible detainer whether the appellant possessed the land without colour of right , whether the complainant proved lawful entitlement to possession whether the trial court ignored contradictions and the defence evidence ,whether the matter was fundamentally a civil dispute and improperly criminalized .
58. The appellant submits that ownership is a matter of law and cannot be proved through informal and disputed allocation documents. That no titled deed existed and beneficiary rights were not confirmed. That the court through convicting the appellant erroneously determined the ownership of the land in disguise of the criminal trial which is the jurisdiction of the Environment & Land Court. That the proprietary right were not adjudicated before the right forum and the criminal court was used as a short cut .
59. That the complainant relied on informal ballots and the investigating officer had a further duty under Article 50 and 244 of the Constitution to perform professional and transparent investigations. That Pw6 failed to verify the official land registers and to interview the seller who confirmed the appellant’s transaction . That the investigations failed to establish the root of title and also ignored the colour of right presented by the defence.
60. That ballots and allotment letters are mere expression of intent to allocate land and do not constitute entitled by law to possession as required under Section 91 of the Penal Code .
61. That the defence proved right over the land through valid contracts .That the court acquitted the appellant on the charge of farud and conspiracy through found that fraud was not proved . That the prosecution’s theory was that possession was unlawful because land was fraudulently acquired .
62. That the court erred in finding that was an innocent purchaser and also find that he was a criminal trespasser The appellant refers to the case of Robert Karanja Kamau -Vs- Republic (2016) eklr
63. That the conviction on count II was unsafe , the prosecution failed to prove the complainant’s legal entitlement to possession and also failed to prove breach of the peace .Further ,m the prosecutor failed to disprove the defence case on right over the land.
64. That the claim before court revealed competing claims of allocation conflicting registers and disputed beneficiary lists within the Self Help Group
65. That the offence requires evidence of brawls threats and disturbance of public peace and not mere possession of the land .The appellant refers to the case of Republic-Vs- Mwangi William Waithaka (2015) eklr on requirement of force and reasonable apprehension of violence .
66. Further that the complainant corroborated the appellant’s case that he was in continuous possession since 2012. That there had been no claim of violence and disturbance of public orders . That long term peaceful occupation itself disproves the element of breach of peace Moses Nyaga -Vs Republic (2016) eklr .
67. That the court failed to consider the contradictions and unreliable evidence .The prosecution witnesses contradicted each other on who balloted plot NO 4 , whether Charles Hinga was qualified, payment requirements , authenticity of the registers multiple conflicting records .Further that the records were altered , the ballot registers were conflicted and the ownership documents were inconsistent.
68. That where material contradictions the benefits must go to the accused.
69. Further that the court failed to consider the defence case and substituted judicial opinion for proof of ownership when it failed to evaluate the corroborated and uncontroverted documents produced by the appellant . That the investigating officer conformed he never verified the that Selina sold the plots he never investigated the altered records and he never conformed the ownership from the land registry ,The investigating officer ignored the exculpatory evidence of Selina Kalekye.
70. That document altercation created reasonable doubt on the prosecution case , the court ignored these doubts and used speculation to bridge the gaps in the prosecution case.
71. Further that the court ignored admissions made by the prosecution’s witnesses and this was a misdirection.
72. That the case involved a contested title and the criminal prosecution was improper . That criminal prosecution should not be used to settle civil disputes The appellant refers to the cases of Paul Mwangi Myraya -Vs- Republic 2015 eklr and Republic -Vs- Chief Magistrate exparte Ganijee (2002) eklr.
73. The appellant also filed further submissions in response to the prosecution’s grounds.
74. The appellant has served 1 year probabation and filed this appeal for setting aside of the judgement and clearing his criminal record
THE PROSECUTION’S WRITTEN SUBMISSIONS.
75. The prosecution submits that the evidence proved that the deceased was the legal owner of Plots No 4&5 through the documents and witness evidence .The prosecution produced the shareholder ballot paper allotment letter contribution register list of balloting and shareholders and allotment of plots.
76. That the prosecution also produced the account statements.
77. That the appellant demolished the complainant’s perimeter fence and continued occupation despite Pw1’s lawful confrontation. That this created tension and breach of the peace.
78. That the manner of occupation and tension went beyond civil dispute and was criminal conduct under Section 91 of the Penal Code . That the ingredients of the offence were proved.
79. That the defense was a mere denial. The appellant failed to present the documents in support of his ownership during investigations. That civil and criminal disputes can ran concurrently. However, the Appellant’s conduct disclosed criminal offence.
ANALYSIS & DETERMINATION
80. The Court considered the Trial court record/proceedings and judgment the grounds of appeal and submissions by Appellant and Respondent through their respective Counsel.
81. In the case of David Njuguna Wairimu -Vs- Republic (2010) eKLR by the Court of Appeal stated as follows:-
“ The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
82. The issues for determination of the appeal
a) Whether the prosecution proved the charges beyond reasonable doubt
b) Whether the defense case casts doubt on the prosecution case.
83.
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Count 2 : Forcible detainer contrary to Section 91 as read with Section 36 of the Penal Code.
On diverse dates between 2012 and 2021 at Kantafu location Matungulu sub location within Machakos County the accused was found in possession of plot No 4 and 5 Land Parcel No DONYO SABUK KOMAROCK BLOCK 1/7794 measuring approximately 41x 118 feet valued at 2000000 two million shillings without any colour of right held possession of the said parcel in a manner likely to cause a breach of peace of Joyce Nyambura Gachangi who is entitled by law to be in possession of the said parcel of land.
2. The Accused was convicted on Count 2 and was sentenced to serve 1 year probation sentence.
THE APPEAL
3. Aggrieved, the Accused preferred his appeal vide the PETITION OF APPEAL filed on 29/11/2023 on GROUNDS THAT ;
4. The Learned Magistrate erred in law and fact and misdirected herself
1. In failing to consider the discrepancies and contradictions in the prosecution’s evidence.
2. In failing to consider the Appellant’s evidence.
3. By holding that the prosecution proved the case of forcible detainer.
4. By considering that the prosecution evidence was credible and placing reliance on it.
5. Failing to consider that the accused had a valid contract for sale for designated plot No 4 and exchange agreement of plot No 47 with plot No 5 in LR No DONYO SABUK KOMAROCK BLOCK 1/7794 which facts were not controverted
6. That the court failed to consider that the agreement was confirmed to be valid by the purported co- conspirator and that the accused was acquitted on Count 1.
7. The court failed to consider that the agreement and the exchange agreement was prepared by the purported co-conspirator and her husband.
8. The court failed to consider the ingredients of the offence of forcible detainer
9. By holding that the ballot produced by the complainant was proof of ownership of title designated Plot No 4 and 5 in LR No DONYO SABUK KOMAROCK BLOCK 1/7794
10. By holding that the accused was not a bonafide purchaser for value and that he had no color of right to be in possession of designated Plot No 4 and 5.
11. Holding that the Appellant was in possession of the designate Plot No 4 and 5 in a manner likely to cause breach of peace or reasonable apprehension of a breach pf peace against a person entitled by law to the possession of the land.
12. That the court relied on its opinion to fill the gaps in the prosecution case
13. That the court mispresented the evidence given as official documents of record veracity of ownership motive and intention of the complainant and the prosecution witnesses.
14. That the court failed to consider the contradictory testimony and evidence on interference with official records of the registered owner of the mother title and the balloting records and outcomes of existing orders of civil court decisions with regard to the subject mother title.
JUDGMENT OF THE COURT
5. The Court found that the co accused were not before court and that conspiracy was not proved. That the deceased and the accused were bonafide members of Mwanzo Self Help group. The deceased balloted for Plot No 4 and 5 which was confirmed during cross examination in the defense case.
6. That the Accused alleged that he bought the land from Selina Kalekye but there was no evidence that the person was a member of the Self Help Group .The accused also stated in defense that he went to Pw5 to confirm that the Plot No. 4 belonged to Selina Kalekye . That this was not posed to Pw5 during cross examination, Pw5 also said he did not transact with D.K Nganga in respect with Plots No 4 and 5.The accused did not have any right over the land.
7. Lastly that the accused admitted being in actual possession of the suit property.
8. On sentence, the accused mitigation was considered when he prayed for leniency and a non-custodial sentence, He was a first offender and he was remorseful as indicated in the presentence report.
THE EVIDENCE AT THE TRIAL
9. Pw1 Joyce Nyambura Gachangi, a business lady and that she makes dresses. That the late Charles Mwangi Timothy is her husband and that he was a member of Mwanzo Self Help group which bought land in Kantafu Komarock, plots Her husband bought Plot No 4&5. She could not remember when the plots were bought but her husband died on 23/2/2002.
10. The Accused was an official of the Self-Help group and they were also in the same estate. Her husband gave her documents to keep, 3 months after his death, she went to the Self Help group former office at Jogoo Road and she found Benson Mwangi the former chairman, Patrick Mururi Kagundu who was the secretary and the Treasurer who was the late Christopher Waweru.
11. The Secretary and the Treasurer gave her the allotment letter at the office. She was told that her husband had contributed for 2 Plots. She was told later that there were new officials of the Self- Help Group. That the Accused was the Treasurer and Maina was the new Chairman. That she knew the new officials and she also attended meetings they called.
12. That the Accused told her that her husband’s Plots had been sold, he did not tell her who had bought the plots. She decided to fence so that the new buyer could come out, she went with her son and fenced the plots.
13. That the next day the neighbor called and said that the Accused had demolished the fence. She reported the issue to KBC police station and she and the accused were summoned by the OCS. She presented her documents before the OCS and asked the accused to present his but he did not have them. That the accused argued with the OCS and she was advised to sue the accused. She reported the matter at the Land Fraud Unit where she met Mr Komesha who handed her to Kareithi where she recorded her statement. That James Mwongera took over the case after the officer was transferred.
14. That the Accused had put up a structures for chicken and a toilet, he had fenced Plot No 4. That plot No 5 was not fenced but it had sand.
15. She said during cross examination that her husband was a member of the group , he told her that they had started a group but she could not remember the time it was started .He told her it was a land buying company . That her husband was still contributing in 1998. That she knew Benson Mwangi who is the chairman, Patrick Muturi Ndiangui,Stephen Mureithi and Nderitu Manjugi who were part of the people who started the group.That the accused was present when the group was started.That she met the initial officials when she went to follow up on the plots after her husband died. That the accused and Maina Kanyumbi Muchoki were the current officials.
16. That she did not know of any dealings between her husband and the officials or any other plot that he had. That her husband was given the ballots although she did not know when balloting was done. That the OCS said she should sue the accused because he did not have documents but he was claiming the plots .
17. PW2 Benson Mwangi Kibia stated that he was one of the founding members of the Self -Help group which was formed in 1996. That elections were held after 2 years and he was the Vice Chairman, then he was elected as the chairman, a position he held for 14 years between 1998 and 2023.That Charles Mwangi was also a member and the group account signatory. That the group held land at Kantutu near KBC in Komarock, that it started with 79 members and reduced to 52 active members. That Charles Mwangi Hinga owned plots 4&5, he was not aware of any sale.
18. The accused was a member of the group, he did not have any position when he was the chairman but was the Treasurer at the time. That he was in occupation of plot No 4 but he did not know whether the plot in question was his. That the accused has his plot where he has constructed a home and Plot No. 4 and 5 belonged to Charles Mwangi Hinga.
19. He stated during cross examination that he knew the number of members because he was the chairman. That there was a record when members were recruited in 1996 during elections. That the numbers decreased. The deceased had balloted for 3 plots but he failed to pay for them. He paid for 2 plots. That anyone who had Ksh 13,500/= qualified for a plot in the year 2000.
20. That they decided to but land in 1996 and they finally did not. In 1998 they did and 30 members qualified for a plot as per their contributions. That plots were allocated and the Final List was submitted. That they balloted using another list, the ballot list had names of members who had not completed payment. The deceased balloted for No 4 and 5 on 13/8/2000.Penina Wangui had signed for No 4 but she did not complete payment. The deceased paid Ksh 27,000/= and there are records of payment . There was also an understanding that those who paid Ksh 8000 were allowed to ballot.
21. That he was not notified of sale of the deceased plot, the mechanism of notifying the office was through an official notification. He also said that he had never sold his plot, that Plot 52 belongs to him but someone else is in occupation.
22. PW3 Josphat Duncan Ngunjiri was the Secretary of the Self Help group between June 1996 and 29/10/1998 That they were 100 members and they would meet every Wednesday and agreed to contribute 100ksh.In mid- 1997 they agreed to buy property with the savings, they settled on land which they bought from a person called Mboya .
23. The land is in Kangundo road next to KBC booster, they bought 10 acres, 1 acre was Ksh 58,000/= and they paid Ksh 580,000/= in installments. They subdivided it to 52 plots 50 x 100 acres. That the survey was done and placed beacons. That on 29/10/1998 they held a meeting and members became rowdy, they wanted an election. That Francis Maina was the chairman and he was taking Minutes. That they were voted out and the people elected were:-
a. Benson Mwangi
b. Moses Mukaja
c. Christopher Kagotho
24. That the new members planned balloting for members which was done on 13/8/2000, the deceased took plot No 4 & 5 while he took 23,28,36 and 37. That after balloting each member would go to the Chairman and the ballot paper would be signed and entered into the Register. The witness identified the Register and the List of balloting for the year 2001 marked as MFI 3 and 4 where the deceased was No. 31 and the Accused was No. 15 had balloted for Plot No 30.
25. That the members were shown the Plots and they waited for title deeds. That the accused plot No 30 is not close to Plot No 4 & 5 and one has to cross the road. That the land was vacant. The Accused was placed on the land when the members disagreed after election of new officials.
26. PW3 was cross examined, he stated that MFI 4 which was the list of members did not have signatures. That the deceased balloted after him , that the member would give his ID number during balloting. That all members got ballot papers, if a member wanted to sell it was required that the parties go to the group office.
27. Pw4 Julius Muchoki Githinji , the Secretary of the Self-Help group at the time the case started since 2013, that the deceased was a member when the group started and that balloting was done at Shauri Moyo in the year 2000. That he did not see the deceased that day, he was a member and he made contributions. He must have had a plot. That his name is No. 21 on the list, that they were shown plots after about 2 months. He never saw the deceased when they went to see the plots. That he noted from the documents that at some point the deceased had been allocated plot No 4 ,5 & 6 and then 4 and 5 and also plot No 49, 48 & 50. He referred to allotment of plots dated 13/3/2021 marked as MFI 5. The accused plot is 48 49 50 and Patrick Muturi Kangundo had plot 4 and 5.
28. That he noted the discrepancy and in 2015 the officials sought to find out what was happening. The deceased died on 23/2/2002 while the balloting was in 2000. That he interacted with the deceased during meetings when they made contributions, he never went to see the deceased plots. Further that the accused was the current Treasurer, he joined the group in 1996 and they were elected together in 2013. That the accused also balloted. The deceased had not developed his plot.
29. That he was able to know his plot by counting from the first plot, the surveyor also placed beacons. The plot No. 4 & 5 were with the accused at the time but the plot numbers were not the accused in the documents .The accused bought the plot from D.K Nganga who was also a member.
30. That D.K Nganga bought from Patrick Kangundo who was the Secretary in the first group. That he indicated that he was selling on behalf of the deceased who was ill at the time.
31. That D.K Nganga is deceased though he was not the Secretary when he died. That the officials saw the discrepancy and they decided to give plot No 6 to the deceased’s wife.
32. He stated during cross examination that his name is indicated as No. 22 and he is allotee for Plot No 21. That they signed the Register. He was shown DMFI 1 showing the same details and that he signed the List. The deceased is listed as No. 30 for plots No. 5 and 6 and Selina Wangui is listed as No. 31 for Plot No 4 . This was compared to MFI 4.
33. The custodian of DMFI 1 was Amukaja,he was also referred to the extract of the diary marked as DMFI 2. That it shows that D.K Nganga paid the deceased. MFI 4 indicated that Plot 47 is for Charles Karacho Mwangi.
34. He stated during re-examination that, DMFI 1 indicated that plot No 4 belonged to Penina Wangui and not D.K Nganga. That entries had been altered from plot No. 4 ,5,6 to Plot No .48 , 49 , 50. That DMFI 1 has discrepancies, further the ownership of plot No 4 was not resolved.
35. Pw5 Patrick Muturi Kangundo stated that he was a member of the Self-Help Group which was formed in 1996 he joined as member No. 75 in the year 1997.That elections had been held in 1998 and shamba had been bought at Komarock. That members continued to contribute, that the shamba was 10 acres, 3 acre were sold and 7 acres were subdivided to 52 Plots. That by 1998 new officials were elected and they gave chances to members who had not made contributions to do so. He referred to MFI 3 and stated that the deceased had contributed ksh 19, 525/= between 1996-1998 and Ksh 15,000 /= between 1998 and 2000 . He referred to the account statements dated 27/11/2002 as MFI 6 .He was the secretary in 2000.
36. He further stated that the Chairman gave notice to members before balloting. That balloting was done on 13/8/2000 and that he was present, the deceased balloted for plot no 4 ,5 & 6. That he and the deceased were in the committee and they were verifying members to ensure they had made contributions before balloting.
37. That he knew the accused and he was present during balloting, he balloted for plots number 30 31 and 32 . That they gave out allotment letters and the deceased was given allotment for plot number 4 & 5 and No 6 was withdrawn. He identified MFI- 7 which is a letter of revocation dated 8/12/2001.
38. That there was a case against former officials holding office between 1998 -2014 and 2014-2015 new officials. The original allotment dated 27/10/2001 was seen by the court and marked as MFI 4.The letter by Oluoch & Co. Advocates 4/12/2014 marked as MFI-8 .
39. That the Accused was the Treasurer from 2014 and he balloted for Plot 30 ,31 and 32. They were friends until problems started when they grabbed Plots No 10-14 with Kinyanjui.Kinyanjui was convicted in Kangundo Law Courts.
40. He stated during cross examination that they had 52 Plots which were allotted to members who had contributed more than Ksh. 8000. He noted that the original Ledger produced in Court had been altered MFI-3 , that Penina name in DMFI 1 as being allotted Plot no 4 was by mistake ,she was not even a member and this was to be corrected. The record was changed, that her husband was a member.
41. That he never transacted with D.K Nganga personally and they had no interaction over Plots Numbers 4 , 5 and 6 .The Diary Extract marked as DMFI 5 had a signature that resembled his signature. That Charles Karacho had allotment No 46, the card does not belong to the Self-help group and the allotment does not have a seal. Allotment was issued after proper ballot papers which had seals. That there was a judgement from Court restraining them from dealing with the land, the case was CMCC No. 1910/2014 marked as DMFI 7.
42. He stated that he was the custodian of the ledger at the time he was in office, that the Final List of beneficiaries had 52 plots and it came to be known on 13/8/2000 when they balloted. He was referred to DMF1-1 and said that the Ballot List had many errors and it had to be done again it was not the Final List.
43. Pw6 No 70098 James Mwongera from DCI Land Fraud Unit testified that he took over the file from Thomas Kareithi who was on transfer. That the matter was reported by Pw1 on 1/12/2016 and she stated that her late husband Timothy Mwangi Ndathi was a member of Mwanzo Self-Help group and that they bought a parcel of land at Oldonyo Sabuk Komarock . Pw1 produced documents left by the deceased and given to her. Pw6 produced the shareholder ballot for plot No 4 and 5 as Exhibit 1 (a) and (b). The allotment confirmation as Exhibit 2,the Contribution List as Exhibit 4, the List of shareholders Exhibit 3.The death certificate of deceased late husband of Pw1 and Affidavit of Customary Marriage .
44. That the group did not have an office and they met in hotels, they held a meeting at New Githanu hotel in Eastleigh in 27/4/2013. That the Complainant reported that the Accused had forcibly detained on her Plots .He visited the Plots at Komarock and found that the Plots had been developed. Plot No4 had been occupied half way the Complainant showed him boundaries.
45. The Accused was called and he confirmed that it was his home, he never met with the appellant. The group members recorded their statements and they confirmed that the Plots belonged to the deceased. They gave out the List of ballot members produced as Exhibit 4 and the Contribution Account as Exhibit 6 .That Charles Mwangi contributed ksh 27, 000/= as member No 31 and he balloted for plots number 4 and 5 on 13/8/2000.
46. That he recorded the Accused’s statement, he said he bought the Land from Selina Kalekye who was serving a jail term at Machakos prison from 1/7/2019. He also recorded her and she admitted that she sold the plots to the accused. Dr. Nganga her husband also wrote to the Self- Help Group asking them not to transact on plot on No DONYO SABUK KOMAROCK BLOCK 1/7794 .
47. He stated during cross examination that the current officials declined to avail the original documents, that Exhibit 5 matched with DMF I- 1 , that in DMFI -1 indicated that the deceased was allocated Plot 5 & 6.
48. That there was an order from Court about the previous and current officials of Self Help Group. That officials changed the records of Plot no 4 & 5 but he did not manage to know the exact person who changed the records . That Selina’s husband wrote to the group and said that she had not authored any dealing with her Plots but she did not indicate the Plot numbers. That the Complainant never told him of the directions and processing of share certificates. That he never verified the details of original plot number 4 & 5 from the office and whether there was amendment.
THE DEFENCE CASE.
49. The Accused gave sworn evidence and he stated that he lived in Kantafu and that he operates a hardware at Dandora Phase 1. That he bought Plot no 4 and 5 between the year 1996 and 1998.The land was 10 acres and 7 acres was subdivided to 52 plots and 38 members qualified to get plots. He referred to DMF I - 8 and he testified that 78 members had invested Ksh 8,500/= they qualified to be allocated plots,
50. That Selina Kalekye sold to him Plot 4 in 2012 with her husband, she is still a member, that the Secretary was Patrick and he confirmed that plot No 4 belonged to Selina in the year 2012.
51. He referred to Sale Agreement with Selina dated 28/10/2012, that the seller she wanted to raise fees. Further that he exchanged plot No 5 with plot No.47 which were opposite each other. His Plot was plot 46 and 47 while Plot 5 belonged to D.K Nganga. That Charles Mwangi Karachu sold to him Plot 46 and 47. He produced the Agreement dated 28/7/2010 as D Exhibit 10 (a) and the Exchange Agreement with Plot 5 as DExhibit 10 (b)
52. The ballot paper for Plot No. 5 was produced as D Exhibit 6 (b) and it was given to him by Charles. He also referred to the confirmation letter dated 15/5/2002. That he informed the office when he bought the plots, he was not an official at the time he bought the Plots. That the Register shows that Plot number 4 and 5 belong to Charles Hinga and that he got it at the DCI office. However, D Exhibit 4 indicates that Plot 4 and 5 belonged to Muturi Kangondu and Plot No. 5 belongs to the deceased.
53. That P Exhibit 4 has a list of 37 members and that there were different versions of P Exhibit 4 which was the list of members. That the former official refused to hand over and that they went to court and the officials were forced to give them documents. He got the documents from Secretary Patrick Muturi when he bought the Plot.
54. He said during cross examination that Selina Kalekye’s name was not in DMFI 1 and her husband’s name is indicated under No plot 11-13. That D Exhibit 3 shows that 29 members had Plots. That he was given ballot for Plot no 47 but he did not have ballots for Plot No 4 and 5. The Agreement was for Plot 4 and 5 and it indicates that it was between the accused, Selina and D.K Nganga, she did not give him a ballot paper and no surveyor pointed out plots 4 and 5 to him. Further that there is no surveyor reports on the land.
55. He said that the ballot paper was with the office , it was to be given to the buyer upon payment of the balance. He had a balance of ksh 20,000/= .
56. The appeal was canvassed through written submissions.
WRITTEN SUBMISSIONS ON APPEAL.
THE APPELLANT’S SUBMISSIONS.
57. The appellant’s issues for determination as whether the prosecution proved the offence of forcible detainer whether the appellant possessed the land without colour of right , whether the complainant proved lawful entitlement to possession whether the trial court ignored contradictions and the defence evidence ,whether the matter was fundamentally a civil dispute and improperly criminalized .
58. The appellant submits that ownership is a matter of law and cannot be proved through informal and disputed allocation documents. That no titled deed existed and beneficiary rights were not confirmed. That the court through convicting the appellant erroneously determined the ownership of the land in disguise of the criminal trial which is the jurisdiction of the Environment & Land Court. That the proprietary right were not adjudicated before the right forum and the criminal court was used as a short cut .
59. That the complainant relied on informal ballots and the investigating officer had a further duty under Article 50 and 244 of the Constitution to perform professional and transparent investigations. That Pw6 failed to verify the official land registers and to interview the seller who confirmed the appellant’s transaction . That the investigations failed to establish the root of title and also ignored the colour of right presented by the defence.
60. That ballots and allotment letters are mere expression of intent to allocate land and do not constitute entitled by law to possession as required under Section 91 of the Penal Code .
61. That the defence proved right over the land through valid contracts .That the court acquitted the appellant on the charge of farud and conspiracy through found that fraud was not proved . That the prosecution’s theory was that possession was unlawful because land was fraudulently acquired .
62. That the court erred in finding that was an innocent purchaser and also find that he was a criminal trespasser The appellant refers to the case of Robert Karanja Kamau -Vs- Republic (2016) eklr
63. That the conviction on count II was unsafe , the prosecution failed to prove the complainant’s legal entitlement to possession and also failed to prove breach of the peace .Further ,m the prosecutor failed to disprove the defence case on right over the land.
64. That the claim before court revealed competing claims of allocation conflicting registers and disputed beneficiary lists within the Self Help Group
65. That the offence requires evidence of brawls threats and disturbance of public peace and not mere possession of the land .The appellant refers to the case of Republic-Vs- Mwangi William Waithaka (2015) eklr on requirement of force and reasonable apprehension of violence .
66. Further that the complainant corroborated the appellant’s case that he was in continuous possession since 2012. That there had been no claim of violence and disturbance of public orders . That long term peaceful occupation itself disproves the element of breach of peace Moses Nyaga -Vs Republic (2016) eklr .
67. That the court failed to consider the contradictions and unreliable evidence .The prosecution witnesses contradicted each other on who balloted plot NO 4 , whether Charles Hinga was qualified, payment requirements , authenticity of the registers multiple conflicting records .Further that the records were altered , the ballot registers were conflicted and the ownership documents were inconsistent.
68. That where material contradictions the benefits must go to the accused.
69. Further that the court failed to consider the defence case and substituted judicial opinion for proof of ownership when it failed to evaluate the corroborated and uncontroverted documents produced by the appellant . That the investigating officer conformed he never verified the that Selina sold the plots he never investigated the altered records and he never conformed the ownership from the land registry ,The investigating officer ignored the exculpatory evidence of Selina Kalekye.
70. That document altercation created reasonable doubt on the prosecution case , the court ignored these doubts and used speculation to bridge the gaps in the prosecution case.
71. Further that the court ignored admissions made by the prosecution’s witnesses and this was a misdirection.
72. That the case involved a contested title and the criminal prosecution was improper . That criminal prosecution should not be used to settle civil disputes The appellant refers to the cases of Paul Mwangi Myraya -Vs- Republic 2015 eklr and Republic -Vs- Chief Magistrate exparte Ganijee (2002) eklr.
73. The appellant also filed further submissions in response to the prosecution’s grounds.
74. The appellant has served 1 year probabation and filed this appeal for setting aside of the judgement and clearing his criminal record
THE PROSECUTION’S WRITTEN SUBMISSIONS.
75. The prosecution submits that the evidence proved that the deceased was the legal owner of Plots No 4&5 through the documents and witness evidence .The prosecution produced the shareholder ballot paper allotment letter contribution register list of balloting and shareholders and allotment of plots.
76. That the prosecution also produced the account statements.
77. That the appellant demolished the complainant’s perimeter fence and continued occupation despite Pw1’s lawful confrontation. That this created tension and breach of the peace.
78. That the manner of occupation and tension went beyond civil dispute and was criminal conduct under Section 91 of the Penal Code . That the ingredients of the offence were proved.
79. That the defense was a mere denial. The appellant failed to present the documents in support of his ownership during investigations. That civil and criminal disputes can ran concurrently. However, the Appellant’s conduct disclosed criminal offence.
ANALYSIS & DETERMINATION
80. The Court considered the Trial court record/proceedings and judgment the grounds of appeal and submissions by Appellant and Respondent through their respective Counsel.
81. In the case of David Njuguna Wairimu -Vs- Republic (2010) eKLR by the Court of Appeal stated as follows:-
“ The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.”
82. The issues for determination of the appeal
a) Whether the prosecution proved the charges beyond reasonable doubt
b) Whether the defense case casts doubt on the prosecution case.
83.
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