Nyamwaya v. Kisumu County Council Crim. App. 160-N-68; 14/9/71; Spry V-P; Law and Lutta JJ. A.

Nyamwaya v. Kisumu County Council Crim. App. 160-N-68; 14/9/71; Spry V-P; Law and Lutta JJ. A.

            The appellant was charged with two counts of trespass on private land c/s 3(1) of the Trespass Act (Cap. 294). On a first appeal, the High Court quashed the conviction on the first count. The facts as established were to the effect that the County Council of Kisumu was the registered owner of a piece of land known as Ahero Market. The Council leased Plot No. 72 at Ahero market to the appellant under a lease dated 14/6/67. The Council discovered later that that plot had been leased to another leassee in 1952. on 13/6/67, Mr. Sanga, a clerk with the Council visited Ahero market and saw some sand had been placed on plot No. 87. Mr. Sanga informed the appellant that he was building on a wrong plot and should stop immediately until the position is clarified by the Commissioner of Lands. A coupe of letters was written by Mr. Sanga to the appellant to this effect but the appellant did not stop construction. In his defence the appellant stated that the Council’s Health inspector pointed out the land in question as plot No. 72 and it was the duty of the Health Inspector to point out plots to lessees. It was also established in evidence that Mr. Sanga was not a surveyor and there was also the question of the identity of the Plot – whether it was plot No. 72 or No. 87.

                        Held: (1) “There is in this case an unsatisfactory feature relating to the identity of the plot the appellant is alleged to have entered onto and carried out building operations. Mr.  Sanga conceded that it was the duty of Mr. Ombuso, the Health Inspector, to point out plots to the lessees. Mr. Ombuso made enquiries from Mr. Joel Ngolo, the complainant’s senior market clerk but the later did not know where Plot No. 72 was. It appears that these plots had not been demarcated on the ground. Mr. Ombuso maintained emphatically at the trial that the plot he pegged out was Plot No. 72 and he said that Messrs Ongondo and Sons had built on Plot No. 73. It appears from the record that the Commissioner of Lands did not reply to Mr. Sanga’s letter in which he had sought clarification of the position of the two plots. Mr. Sanga is apparently not a surveyor ad he did not say what reason he had to believe that the building erected by the appellant was on Plot No. 87. There is nothing on the record to show that it was proved beyond a reasonable doubt that the building was not on the land to which the appellant’s lease related. Thus the identity of these two plots was not established with that degree of certainty required in a criminal case Section 3(2) of the Trespass Act places on an accused person the burden of proving that he had reasonable excuse or the consent of the occupier for being on private land but before that question rises it is for the prosecution to prove as fact that the accused was on private land. We think that on the evidence in this case there was a real doubt as to whether the plot pegged out for the appellant was part of Plot No. 87.” (2) Appeal allowed.