[2017] KEHC 1666 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO.107 OF 2017

(Appeal Originating from Nyahururu CM’s Court Cr.No.830 of 2013 by: Hon. A.W. Mukenga – R.M.)

ALFRED SANKEI NTAUSI.............APPELLANT

V E R S U S

REPUBLIC...................................RESPONDENT

J U D G M E N T

Alfred Sankei Ntausithe appellant, together with another faced the following charges before Hon. Mukenga R.M:

“Count 1:

Being in possession of Government Trophy Contrary to Section 42(1)(b) of the Wildlife (Conservation and Management) Act Cap.376 Law of Kenya.

Count 2:

Failing to make a report of possession of government trophy contrary to Section 39(3) of the Wildlife (Conservation and Management) Act Cap 376 Laws of Kenya.

Count 3:

Dealing in government trophy without a dealer’s license contrary to Section 43(4)(a) of the Wildlife (Conservation and Management) Act Cap 376 Laws of Kenya.”

Both were convicted on the three counts. The appellant who was the first accused was sentenced as follows:

Count 1: 3 years imprisonment

Count 2: 12 months imprisonment

Count 3: 5 years imprisonment

The sentences were ordered to run concurrently.

The appellant is aggrieved by both the conviction and sentence. He filed this appeal on 31/5/2016 through the firm of Nderitu Komu citing 8 grounds which are as here below:

“1. The learned trial magistrate erred in law and fact in failing to find that the charges facing the appellant were defective and could not be prosecuted as distinct charges;

2. The learned trial magistrate erred in law and fact in failing to make a finding to the effect that the prosecution had not proved beyond reasonable doubt that the appellant was in possession of the Government trophy;

3. The learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved beyond reasonable doubt that the appellant was aware of the existence of the Government trophy for him to make a report to the relevant authority;

4. The learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved beyond reasonable doubt that the appellant was carrying out the business of a dealer;

5. The learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved beyond reasonable doubt that the items produced in court as exhibits were indeed Government trophy;

6. The learned trial magistrate erred in law and fact in making a finding that the prosecution had proved its case beyond reasonable doubt despite the existence of glaring discrepancies;

7. The learned trial magistrate erred in law and fact in disregarding the appellant’s defence, which was consistent and trustworthy as compared to the prosecution evidence;

8. The learned trial magistrate erred in law and fact in passing sentences that were harsh under the circumstances.”

Counsel also filed submissions in support of the appeal dated 23/3/2017. The appellant prays that the conviction be quashed and sentence set aside.

The appeal was opposed by Mr. Mong’are, counsel for the State.

This is a first appeal and it behoves this court to examine the evidence tendered in the trial court a new, analyze and come up with its own findings. This court however, must bear in mind that it neither saw nor heard the witnesses – I am guided by the decision of Okeno v Republic (1972) EA 32.

In the trial court, the prosecution called three witnesses in support of their case. PW1 Cpl. Aden Yusuf Abdi of KWS Rumuruti Station received information on 9/6/2013 that 4 people were in possession of elephant tusks. He called Ranger Aden Abdullahi PW2, and driver Isaack Ngugi who accompanied him to Ngare Nyiro Centre where after meeting the informer, a buyer. He had met the informer before reaching Ngare Nyiro who led him where the appellant and the lady co-accused were. He was taken where the tusks were hidden inside a sack in a bush near Ngare Nyiro Centre. They negotiated with PW1 and agreed on a price of Kshs.7,000/= per kilogram. He weighed the tusks the total payable was of Kshs.91,000/=. They agreed that they proceed to Ngare Nyiro Centre where payment would be made. On the way to Ngare Nyiro, the driver and PW2 stopped the vehicle near there and PW1 told them that the appellant and co-accused were the owners of the tusks. They two were taken to Rumuruti Police Station where the accused were charged.

PW2 PC Aden Ahmed told the court that after PW1 informed him that there were some people who were said to be in possession of elephant tusks; that he alighted from the vehicle with CPL Losomi & Benson to lay ambush while PW1 who was to pose as a buyer proceeded with the informer to Ngare Nyiro; that as PW1 came back, they stopped and arrested PW1, the appellant and the co-accused and recovered the elephant tusks in a sack.

PW3 CP (Fuad Musa)of Rumuruti Police Station was at the station on 9/6/2013 when the appellant and another were taken there with elephant tusks which he kept and produced them in court as exhibits 1(a)(d) and a photograph of the accused with the elephant tusks.

When placed on his defence, the appellant gave an unsworn statement; that on 9/6/2013, he was grazing cattle in a white man’s farm; people went there in a vehicle, he was told to produce the people who were hiding in the bush, they arrested and took him to Rumuruti, where they alleged that he had ivory. He denied knowing the co-accused or where the tusks came from. The appellant called two witnesses, DW3 Benson Kamuyu who said he was grazing cattle with the appellant on the morning of 9/6/2013 but he had disappeared from the ranch without his knowledge. DW4 Moses Erosereti, a herdsman also said that the appellant was working as a herds boy on 9/6/2013 but that when he went with the cows in the morning the cows came back alone. He later heard that the appellant had been arrested.

In brief the appellants counsel submitted that the State has not proved that the appellant was found in possession of the trophies; that there is no proof that what was recovered were government trophies; that there was no proof that the appellant was dealing in ivory because PW1 made reference to somebody else and lastly to an authorized officer if there was no proof that the items recovered were trophies.

In reply Mr. Mong’are argued possession was proved because the appellant led to their recovery; that it was not necessary to subject the exhibits to examination because it is obvious that they are elephant tusks and that in any case, it was not disputed at the hearing and the issue cannot be raised at this stage.

I think it is necessary to set out the law relating to the charges that the appellant faced. Section 42(1)(b) reads as follows:

“Section 42(1) Save as otherwise provided by this Act, any person who is in possession of any trophy or of any ivory or rhinoceros horn of any description, without also being in possession of a certificate of ownership in respect thereto shall be guilty of a forfeiture offence and

(a)……

(b) In any other case be liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding three years, or both such find and imprisonment.”

Section 43(4) of the Act provides as follows:

43(4) Any person who

(a) Not being the holder of a dealer’s license, carries on the business of a dealer;

(b) being the holder of a dealer’s licence, fails to comply with any condition to which the licence is subject;

Shall be guilty of an offence and liable to a fine not exceeding twenty thousand shillings or to imprisonment for a term not exceeding five years or to both such fine and imprisonment.

Section 39(3)(a) provides as follows:

(2) Any person who by any means obtains permission of a Government trophy shall forthwith make a report to an authorized officer and shall hand the trophy over to such officer.

(3)(a) Any person who:

(a) Fails to make a report required by Section 2 of this section;

(b) Is unlawfully in possession of, or unlawfully deals in, any Government trophy,shall be guilty of an offence and liable to a fine not exceeding ten thousand shillings or imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

Section 39 of the Act lists the government trophies as:

“any protected animal, game animal, or game bird alive or dead and any bones, claw, egg, feather, hair, hoof, skin, tooth, tusk or other durable portion whatsoever of that animal to bird or fish or other aquatic life whether processed, added to or changed by the work of man or not, which is recognized as such a durable portion.”

Mr. Nderitu relied on the decision in Peter Mwangi Kariuki v Republic CRA.57/2015 where the court identified the ingredients that need to be proved in such a case, which are:

1. Proof of possession;

2. Proof that the said items were genuine trophies;

3. Proof that the appellant was dealing in the trophies without a license;

4. Proof that the appellant failed to make a report to the authorized office.

Coming to the first ingredient, PW1 told the court that after he received information that some people were in possession of ivory tusks, the informer led him to the appellant and another; that it is the appellant who led him to a bush where the items were recovered hidden in a sack.

Possession is defined under Section 4 of the Penal Code as:

“4(a) be in possession of or have in possession, includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place whether belonging to or occupied by oneself or not for the use or benefit of oneself or of any other person.”

(c) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed and taken to be in the custody and possession of each and all of them”

In this case, it is the appellant and his co-accused who led PW1 to where the tusks were hidden in a sack in the bush. The appellant knew of their existence and where to find them and the fact that they were hidden in a sack in the bush is evidence that they were prohibited goods.

Whether the recovered ‘tusks’ were proved to be Government Trophies:

The appellant was photographed with the recovered ‘tusks’ in a basket. No evidence was called to confirm whether the items that were recovered were indeed Government Trophies. In the case of Peter Mwangi case (Supra) an employee of National Museum of Kenya testified that he examined the items recovered and confirmed that they were indeed elephant tusks. Having not established what the recovered items were, this court cannot find that the items were trophies for which the appellant required a dealer’s license or that one needed to report to an authorized officer. For this reason alone, I will find that the prosecution did not prove that the appellant was in possession of government trophies.

I will therefore find that the charges were not proved to the required standard. The conviction was founded on error. I quash it, set aside the sentence and the appellant is set at liberty unless otherwise lawfully held.

Dated, Signed and Delivered at NYAHURURU this 14thday ofNovember,2017.

………………….

R.P.V. Wendoh

JUDGE

PRESENT:

Mr. Mutembei - Prosecution Counsel

Soi - Court Assistant

Appellant - present

Ms. Mureithi for Mr. Nderitu – for appellant