Katiti, J.: This is an appeal whose compass coverage is a narrow one. The undisputed facts are as follows. PW.2 Baseka s/o Bunzinya had had occasion to entrust all his lands or tenements to the Complainant Zubel s/o Rukele PW. 1, before he went on a B long errand for the treatment of his child. The accused/appellant, a brother of PW.2, entered the said Shambas that had been entrusted to the Complainant, and began plucking and consuming the fruits thereof, and hence the complaint by the complainant PW.1. The appellant's defence was that, he entered the shamba because it had been Cabandoned by his brother, and that nobody was in control, and further conceded that his brother PW2, could have his shamba back.
Shanga Primary Court found the appellant guilty as charged and imposed a fine of Shs. 500/=, or Six months imprisonment, following the same with an order that the same D appellant compensate the complainant to the tune of Shs. 1,500/=. The appellant's appeal to the District Court was partly dismissed, as while the conviction and fine imposed were upheld, the compensation order was set aside for lack of foundation on which it could stand.
The appellant has appealed again. The prosecution and defence cases juxtaposed, one E discerns no serious conflict between them, in general terms. As a matter of fact, nowhere did the appellant deny entering the Shambas/tenements in question, he only qualified his such entry that, the same property hitherto belonging to his brother had been abandoned, and was bona vacantia. I think, I dare say, it was the apparent simplicity F with which the appellant seemed to agree with the prosecutions general evidence that drove both the Primary and District Courts, to easily enter conviction, and/or uphold the same. I think the two lower courts had a problem of short-sightedness, in easily thinking the case had been proved beyond reasonable doubt. While indeed trespass to G land, which the appellant's conduct, inter aliawas, is a wrong, it is not the intention of the Section to take care of every, and any trespass to land. The Section is afraid of treading on slippery grounds. Section 85 which is worded carefully, reads. H
Any person who, in order to take possession thereof, enters on any land or tenements in a violent manner, whether such violence consists in actual force applied to any other person, or in threats, or in breaking open any house or in collecting an unusual number of people, is I guilty of the offence termed "forcible entry".
It is immaterial whether, he is entitled to enter on the land or not, provided that a person A who enters upon lands, or tenements of his own, but which are in custody of his servant, or bailiff, does not commit the offence of forcible entry.
Having read and reasonably digested the above Section, it seems to me, that before conviction under it is successfully achieved, the following elements must be established B beyond reasonable doubt. They are:
(1) The accused/appellant must have entered land/s, or, tenements in question, and
(2) The same said accused/appellant must have applied violence and whether such C violence consists in actual force applied to any or other person, or in threats or in breaking open any house or in collecting an unusual number of people, the same such violence must be for purposes of taking possession of the same said lands or tenements. D
(3) Unless the said lands, or tenements, are in the custody of the accused's servants or bailiff, it is immaterial whether the said accused/appellant is entitled to enter the lands or not.
This section, it may be discerned is not so much concerned with the unlawful E consumption, if any, of fruits, produce or products of the said lands or tenements involved, as that may be taken care of by another section, it is primarily concerned with the preservation of public tranquillity in matters pertaining to land and accompanying or concomitant processes of changes of ownerships, or possessions. In other words, it is a F law and order section, decrying applications of violence, disturbances of tranquility in land entries. If with respect, we apply the above elements to the instant case we shall not fail to note that, while we have concession that, the appellant did enter, there is hardly evidence showing whether the appellant applied violence in entering the same said Shamba. All we have from the complainant, at best an eye witness, is this: G
Namshitaki Gwasa Bunzinya kwa kuniingilia katika Shamba nililoachiwa na baba yangu mdogo Baseka Bunzinya. H
With considerable and far reaching efforts, I have failed in the name of Justice, to read application of violence or even threats thereof, by the appellant in entering and taking possession of the questioned Shambas from the evidence adduced. The Swahili word I "Kuingilia" that the complainant chose to use in describing the appellant's conduct does not
in my view, carry or bear the violence content contemplated by the provisions above A reproduced. It carries the mildness that the Section is not worried about. Even going by the complainant's own amplification that - hata Katibu Kata alifika waliona walivyokata ndizi", I fail to read the same to mean that the appellant entered the said B Shamba in a violent manner, in order to take possession of the same shamba. I find myself finally succumbing to my conviction, that the case was not proved beyond reasonable doubt against the appellant. The appeal is therefore allowed, conviction quashed and sentence set aside. It is hereby directed that the fine imposed, be refunded, if paid.
C Appeal allowed
D