Please Wait. Searching ...
|Case Number:||Criminal Appeal 3A of 2000|
|Parties:||James Maina Gachie v Republic|
|Date Delivered:||24 Feb 2005|
|Court:||High Court at Embu|
|Citation:||James Maina Gachie v Republic  eKLR|
CRIMINAL LAW - tresspass - that an offence of trespass contrary to S.3(1) of the Trespass Act,Cap.294 connot lie where the land allegedly trespassed on is not private land
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
JAMES MAINA GACHIE …………………………….….…APPELLANT
REPUBLIC ……………………………………………….. RESPONDENT
1. The Appeal herein raises only one issue; whether an offence of trespass contrary to S.3(1) of the Trespass Act, Cap.294 can lie where the land allegedly trespassed on, is not private land.
2. Mr. Munene for the Appellants in Criminal Appeals No’s 3A and 3B of 2000 as consolidated, argues that in the Lower Court, the Appellants were charged with the offence of trespassing “upon plot NO. TMAH – 15 of Seventh Day Adventist Church in that they were found constructing a house in that land without the authority of Pastor Johnson Wanderi”. This could not in his view be a sustainable charge under S.3(i) aforesaid as it came out in evidence that the land belonged to the National Irrigation Board and is land governed by the Irrigation Act, Cap. 347.
3. Mr. Omwega concedes the point and rightly so. In Wachira –vs- Republic (1967) E.A. 201, the Appellant was convicted of trespass upon private land contrary to S. 3(i) and (2) and S.11 of the Trespass Act, Cap. 284 in proceedings instituted by a Mr. Kiroku as “occupier” of the land. The land was actually owned by the Land Development and Settlement Board. Although Kiroku later entered into possession, the title was still in the name of the Board. It was held inter alia that “proceedings under the Trespass Act can only be brought by the police or by an “owner” or “occupier” of the land”. It was held further that “occupier” in terms of S.2 of the Trespass Act (Cap.294) means “the owner or the person lawfully in occupation of the private land” and “private land” means “land which is owned or occupied by any person by virtue of private title”.
4. Turning back to the case at hand, it is clear that the land is not private land nor was it clear whether the occupier lawfully was the Seventh Day Adventist Church or Pastor Johnson Wanderi. In any event, the charge as framed could not properly lie under S. 3 (i) of the Trespass Act.
5. It follows that the conviction was unlawful and I hereby set it aside and quash the sentence.
6. The Appellants are at liberty, if in custody, unless they are otherwise lawfully held.
Read in Open Court this 24th day of February 2005
In the presence of;
Mr. Kahiga for Mr Munene for Appellant
Mr. Omwega for Republic