Bakari v. R. (PC) Crim. App. 191-A-71; 30/7/71; Kwikima Ag. J.

Bakari v. R. (PC) Crim. App. 191-A-71; 30/7/71; Kwikima Ag. J.

The appellant was convicted of forcible entry c/s 86 of the Penal code. The appellant agreed to having entered the land. His defence was that he had agreed to redeem his land from the complainant who had bought it in an auction sale. He had paid the complainant Shs. 98/- out of the agreed sum of Shs. 370/- which he took to be part payment for the redemption. The trial court found the appellant’s belief to be legally unfounded.

            Held: (1) “The issue here is whether the appellant held on honest belief that he had a claim of right to re-enter. Neither of the courts below touched this issue. The learned District Magistrate misdirected himself when he held that such belief went to a mistake in law and not in fact. At the time he re-entered the shamba mistook the fact that possession thereof was lawfully in the process of becoming his. From his conduct it appears that the appellant took it that he could re-enter after payment of an instalment of Shs. 80/- pursuant to their agreement with the complainant. At any rate his sincere belief that he could re-enter has been held to be a complete defence as a number of authorities show. I will go through a few of them to illustrate the point.” [The learned judge then discussed Lauriani Kobobwe v. R. [1967] H. C. D. 147, Musa Kundage v. R. [1968] H. C. D. 398, and Charles Alias Makanyanga Makobe v. R. [1967] H. C. D. 271]. (2) One would hasten to point out that had any of the two courts below considered this issue, this appeal would probably not before the High court. The learned State attorney who appeared in this appeal supported the conviction because he felt that the appellant had disobeyed a court order. He did not specify what order the appellant had disobeyed. He probably had in mind the decree which ordered that the appellant’s land be sold to meet the decree holder’s judgment. With great respect, he appellant’s action could not have been in violation of any Court Order, which did not prohibit him from entering his former shamba or taking fruits from there. All the appellant did was to act in pursuance of his agreement with the complainant. This agreement had no court sanction and his action could in no way be said to amount to disobedience of a Court Order. (3) Appeal allowed; Conviction quashed.