Mwakibete, J.: This is a 2nd appeal by one Nkirwa Sumary. He was convicted before a court of 1st E instance, at Maji ya Chai, of forcible entry c/s 85 Penal Code., as applied, and given a one year conditional discharge under s.38 (1) Penal Code. His appeal to the District Court, at Arusha, against both the conviction and sentence was dismissed. Hence this appeal. F
The allegation was that he had forcibly entered on and laid claim to the shamba, the property of one Noel Sarakikya. It is said he had cultivated it and planted maize unauthorized.
Appellant's defence was that he had cultivated a shamba which he genuinely and reasonably believed was his property by inheritence. G
Each of them then called witnesses to establish his claim over the shamba. And it happened that Noel Sarakikya had a stronger case than that of the appellant when the trial court convicted him of forcible entry. Section 85 of the Penal Code says: H
Any person who, in order to take possession thereof, enters any land or ...... in a violent manner, whether such violence consists in actual force applied to any other person or in threats on in breaking open any house or in collecting an unusual number of people, is guilty of the misdemeanour termed 'forcible entry'. I
A So that for one to be convicted of 'forcible entry' one must be shown to have entered on the land in a violent manner, as provided in the section quoted. I have carefully gone through the proceedings before the court of 1st instance but no where is evidence of 'violence' shown in terms B of the law as above. Which means that, on the evidence, a necessary ingredient for the offence of forcible entry was lacking. The conviction was therefore lame and on the basis of this alone the same cannot be allowed to stand - it is quashed and the sentence set aside.
C There is yet another aspect of this case. The nature of the allegation and the defence thereto clearly show that the case involved a dispute over ownership of the shamba in question. That being the case, the controversy is one that ought to have been resolved by civil litigation instead of criminal proceedings. The Republic agrees with the appellant that the case was more of a civil nature D than criminal - as such it would not support the conviction. The appeal would also succed on this point.
This means that because the appellant (Nkirwa) was in occupation of the shamba when criminal proceedings were brought and he still asserts that the shamba belongs to him - Noel Sarakikya may E bring a civil action to establish ownership of the same if he so desires. Of course civil action will be unnecessary if Nkirwa abandons his claim over the shamba.
F Appeal allowed.
G