‘Orders from above’ no defence to illegal acts

By Nyakundi Nyamboga

The six accused persons are Narok County Council employees. They were charged jointly with others not before court, with unlawfully destroying a uni-hut worth Sh40,000, the property of Livingstone Kunini ole Ntutu.

With the exception of Mpampai Nkotiko and Daniel ole Kashu, the accused faced a second charge of assaulting and harming Jackson ole Morompi.

And save for Kashu, Kuyoni and Nkoitiko, the other accused were charged with assaulting and hurting Nkiok ole Teruru on the same day. Tikani, Lemein, Ketuyio and Masikonte were separately charged with assaulting Oriku ole Taruru.

The offences were committed on October, 11, 2006 at Talek in Narok.

During the trial, the prosecution’s case was that on June 10, 2006, Ntutu took his brother and six others to land parcel no Cis-Mara/Talek/155 registered in his name. His brother Robert Nanyiku and another were in charge of the group. They erected a uni-hut on the land.

However, two days later the accused and 70 others went there in four vehicles and forced them out of the place. Reporters covered the event.

The uni-hut was demolished and the remains put in the assailants’ vehicles. Ntutu’s group was roughed up and some sustained injuries.

P3 forms

They were treated at Narok District Hospital. The P-3 forms and some pieces of the allegedly damaged uni-hut were produced in court as exhibits.

The private land was registered in Ntutu’s name on October 14, 1997. In 2000, the council and a company, Olkiombo Ltd, occupied the suit land prompting the owner to give them notice to vacate. They did not oblige, ostensibly because they, too, claimed ownership.

This prompted him to file a civil suit against the County Council of Narok. The Council filed a defence.

But on May 15, 2002 they settled the suit by consent in favour of Ntutu and judgement was entered in the High Court and a decree drawn to that effect on November 24, 2005.

In 2003, Ntutu had been arrested and charged with forgery of an "adjudication record" and an "area list". The case was, however, dropped under section 87 of the CPC. But Ntutu was immediately re-arrested and charged with the same offences in Nairobi Law Courts in criminal case no 2157/03. The complainants were Narok County Council and Ol-Kiombo Ltd. Evidence was called in the case and Ntutu was eventually acquitted.

The defence’s case was that land parcel number Cis-Mara/Talek/155 was issued fraudulently. The county council has pending cases in court touching on the said title and land.

The six accused persons, through lawyer Kenta Moitalel, told the court they acted within the council by-laws requiring them to protect the reserve land.

They denied destroying the uni-hut, saying it was unscrewed by council workers. They alleged the complainants were ordered to vacate the area, and did so. They were not assaulted by anyone.

The second accused claimed he went to the scene after the operation was over. However, the third accused said they pushed the complainants out of the park. The fifth accused said he was half a kilometre away from the scene. The seventh accused said he was a council driver and on the material day he just the drove the vehicle.

In his judgement, Principal Magistrate Stephen Githinji said from the evidence, it was not disputed that Ntutu has a title deed to the land in question.

Therefore, the cancellation of the title could only be done through a legal process, at the High Court.

"Mere opinion by Government officials does not affect the legal position of an issued title deed," the magistrate said.

Correct proceidure

He noted the council’s suits against Ntutu were decided in his favour. If the council was aggrieved, the procedure was to move to court for a vacation order. He ruled Ntutu’s men were not trespassers in the land because they "had a title deed to it and a decree in their favour".

The council took the law into their hands by forcefully evicting them from the land.

"The accused were ordered by their employer to remove trespassers from the land. They are human beings each with an independent mind. They were expected to understand the background of the order and its legality. The legal position is that an employee should not follow or obey an unlawful order from his employer or senior, which gives rise to commission of an offence. It is not, therefore, a defence for a police officer who commits an offence, or even a ranger to establish that he was ordered to do so. Employees obligation in law is to only execute lawful order," the magistrate ruled.

He had no doubt all the accused persons took part in the eviction. They were known by the witness and were therefore positively recognised.

He held the prosecution had proved beyond any reasonable doubt that Kuyoni, Tikani, Ketuyio, Masikonte and Nkoitiko maliciously damaged property and sentenced each of them to six months imprisonment with an option of a fine of Sh3,000. He acquitted Kashu for lack of evidence.

Tikani, Lemein, Ketuyio and Masikonte were found guilty of assault and fined Sh3,000 each or serve five months imprisonment. The sentences were to run concurrently.