[2023] KEHC 25110 (KLR)

Bwanamaka & 4 others v Republic (Criminal Appeal E043 of 2021) [2023] KEHC 25110 (KLR) (30 October 2023) (Judgment)

Neutral citation: [2023] KEHC 25110 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E043 of 2021

A. Ong’injo, J

October 30, 2023

Between

Maur Abdallah Bwanamaka

1st Appellant

Federal Commercial Investment Limited

2nd Appellant

Ali Mohamed Ahmed

3rd Appellant

Captain Shipping Agencies Limited

4th Appellant

Abdulla Hussein Mer

5th Appellant

and

Republic

Respondent

(Being an appeal from the decision of the Hon. E. A. Nyaloti (CM) on 25th May 2021 in Mombasa Criminal Case No. 2314 of 2019)

Judgment

Background 1. The appellant Maur Abdalla Bwanamaka and his co accused Federal Investments Commercial Limited, Ali Mohammed Ahmed, Captain Shipping Agency Limited, and Abdulla Hussein Mer were charged with the offence of making a false report contrary to Section 24 (6) (b) as read with Section 209 of the East African Community Customs Management Act, 2004.

2. The first count was particularized that on the 28th day of October 2019 at Old Port and Kilindini ship boarding office within Mombasa County being Directors of Limited Companies and Limited Companies respectively unlawfully made a false report namely Transire in relation to cargo aboard MV Alfazal registration number Z 1438 to wit 1000 bags of 25 kgs of rice and 10 tonnes of scrap metal instead of 15,045 bags of 25 kgs of rice and 16 tonnes of scrap metal all valued at Kshs. 22,532,619 with tax implication of Kshs. 13,142,066.

3. In the second count, the accused were charged with conveying imported goods contrary to Section 199 (b) (i) of the East African Community Customs Management Act 2004.

4. The second count was particularized that on the 28th day of October 2019 at Kilindini ship boarding office within Mombasa County, being the master of a marine motor vessel namely MV AL FAZAL registration number Z 1438 was found to be conveying rice and scrap metal which had been under declared vide Transire No. OCV KLD 075 2019 in contravention of the East African Community Customs Management Act to wit 1000 bags of 25 kgs rice and 16 tonnes of scrap metal all valued at Kshs. 22,532,119 with tax implications of Kshs. 13,142,066.

5. The prosecution put 5 witnesses to the stand who testified and at the close of the prosecution case, the Honourable Magistrate Hon. E. Nyaloti (CM) analysed the evidence and exhibits, and established that a prima facie case had been established sufficient to place accused persons on their defence.

6. The Appellant was aggrieved by the decision of the trial court and preferred the appeal herein on the following grounds: -1. That the learned magistrate erred in law and fact by convicting and sentencing the appellants herein jointly and severally on custodial sentence whereas the East African Community Customs Management Act, 2004 provides for fines only.2. That the learned magistrate erred in law and fact by imposing a sentence contrary to provisions of Section 24 (6)(b) as read with 209 of the EACMA, 2004 by sentencing the imprisonment in default of payment of fine.3. That the learned magistrate erred in law and fact by imposing fines against the appellants contrary to the law as provided under Section 199(b)(i) of the EACMA, 2004 Act.4. That the learned magistrate erred in law and fact by failing to consider the tonnage of the vessel MV Alfazal.5. That the learned magistrate erred in law and fact by hearing, determining the appellant’s sentencing on a defective charge sheet.6. That the learned magistrate erred in law and fact by ordering that the importer to pay the outstanding tax of Kshs. 9,654,163 for goods and had been declared as Export goods by the Complainant in the matter.7. That the learned magistrate erred in law and fact by ordering/directing that the subject property being rice to be destroyed by the multi-agency team under supervised by the court to oversee the destruction.8. That the learned magistrate erred in law and fact by issuing a notice to the registered owner of MV Alfazal to show cause why the vessel cannot be forfeited to the government of Kenya.9. That the learned magistrate erred in law by failing to consider the entries lodged on the KRA Simba System.10. That the learned magistrate erred in law and fact by failing to consider the consent judgment issued by the High Court over the subject matter on the 26th June 2020. 11. That the learned magistrate erred in law and fact by considering or declaring the goods to be unaccustomed goods contrary to the provision of the law as provided under the EACCM Act, 2004 and all other related laws.12. That the learned magistrate erred in law and fact by not considering the language barrier between the Port Officer, KRA Officer, Court and the 5th appellant and other appellants respectively.13. That the learned magistrate erred in law and fact by failing to consider that the taxes had been paid and the goods released to importer accordingly.14. That the learned magistrate erred in law by ordering/considering that the 1st appellant was a director of the 2nd appellant herein contrary to the evidence that was adduced.15. That the learned magistrate erred in law and fact by not considering the appellant’s mitigation.16. That the learned magistrate erred in law and fact by failing to consider the sworn detailed evidence by the appellants.17. That the learned magistrate erred in law and fact by giving excessive and punitive sentence contrary to the law.18. That the learned magistrate erred in law and fact by failing to consider that the said goods and vessel was in custody of the government authorities as provided by the law.19. That the learned magistrate erred in law and fact by failing to consider that the transive had discharged its function as provided under the law of the Vessel Movement, Kilindini Port to Old Port Mombasa.20. That the learned magistrate erred in law and fact by failing to note that a transire is not a tax paying document but only to facilitate the movement of the vessel from Kilindini Port to Old Port.21. That the learned magistrate erred in law and fact by failing to consider that the accused persons were detained at Port Police arraigned in court without OB number as desired by the law.22. That the learned magistrate erred in law and fact by failing to consider that during and after sentence, failed and/or acted in toto violation of the Constitution as provided under Article 23 and 50 of the Constitution of Kenya respectively.23. That the learned magistrate erred in law and fact by considering a manifest and other documents that were not part of the documents in the charge sheet to make her decision.24. That the learned magistrate erred in law and fact by finding that the appellants made a false report to non-existing entity that was not proved in court and as desired by the law.25. That the learned magistrate erred in law and fact by ordering or seeking that the appellant conveyed imported goods contain to the law yet the goods were in toto conformity with the law as provided under the EACCM Act, 2004. 26. That the learned magistrate erred in law and fact by failing to appreciate/consider that the prosecution evidence was done `by coercion and conspiracy as the statements were made after and during the hearing of the case.27. That the learned magistrate erred in law and fact in finding at paragraph 62 of her judgment confirmed that the transire was not an issue however proceeded to sentence the appellants on the same claim in toto violation of the law.28. That the learned magistrate erred in law and fact that the prosecution had not proved their case beyond reasonable doubt.29. That the learned magistrate erred in law and fact that the subject goods were under declared whereas for tax to be paid, the goods were assessed and declared as per the law.30. That the learned magistrate erred in law and fact by giving an excessive sentence.

7. The Appellant sought that the instant appeal be allowed, the whole judgment delivered on 2. 10. 2015 and all consequential orders ensuing therefrom be set aside and the appellant be released.

Prosecution’s Case 8. PW1, Evanson Mairura, Assistant Manager KRA Investigations Department and that the scope of his job entails ensuring that taxes are paid at the points of entry. He said that the vessel was seized on 15. 11. 2019 and the goods discharged were stored in the warehouse. He said that they took investory on 20. 11. 2019 jointly with the accused person who signed the inventory. That part of the goods was rice and scrap metal. That the scrap metal was declared as 10 tonnes and upon verification, it was found to be 16 tonnes. That the scrap metal was also seized. He produced the seizure notice of the ship as Exhibit 1, seizure notice of the rice as exhibit 2 and seizure notice of the scrap metal as exhibit 3.

9. PW1 informed court that there are 9 custom processes that are supposed to be adhered to when a vessel arrives in the country. The 1st process is the arrival of the vessel which takes place at the port of Kilindini and the process is in the hands of the master of the vessel. The 2nd process is the declaration and presentation of the manifest to customs and port authorities. He said that there are several documents presented by the master of the vessel together with the shipping agents. The 1st document is the inward report or manifest, the 2nd document is the crew list, the 3rd document is the communication list, the 4th document is the packaging list, and the 5th document is the store list. That the 3rd process is the process of boarding the vessel which entails the customs authorities, port authorities and Kenya Police to see what the vessel has brought into the country.

10. PW1 testified that the 4th process is called carriage coastwise which means the vessel is given permission to move from Kilindini to the Old Port along the beach. That the permission is effected through issuance of a document called the transire. The 4th step is once the vessel has moved from Kilindini, the vessel discharges the goods from the vessel area. The 6th step is that inspector declares the goods he has brought into the country and assesses the tax he is to pay which is done through an electronic system called Simba. The goods are examined by KRA and other agencies such as Kenya Bureau of Standards (KBS). The 8th step is for KRA to officially assess tax and the importer to pay. That once the taxes are paid, the goods are released to the importer.

11. PW1 said that on 6th November 2019, they received information that a vessel MV Alfazal was discharging cargo which was being released to the importer without payment of taxes. That upon receiving the information, PW1 together with other investigators from KRA were dispatched to Old Port to investigate the matter. That the team of officers that accompanied him included Johnes Nyangweso, Mr. Obed Balesa, Ms. Mary Muthoni, and Mr. Mark Kibet. That they proceeded to Old Port where they met another team from KRA who had been there earlier. That they proceeded to inquire from officers who work at Old Port about the vessel and they learnt that the vessel had arrived on 28. 10. 2019 and the declaration of the manifest had been done. That information about arrival of the vessel had been obtained from two specific documents, the manifest and the transire. That they arranged for logistics of counting what was on board the vessel and what had been declared.

12. PW1 said that the parties involved in the verification were master of the vessel Mr. Mer Abdula Hussein, a representative from Captain Shipping Agency Mr. Omar Makaka and the importer of the goods Maur Bwanamaka who doubled as director of Federal Commercial, KRA team, KPA authorities, Port Health authorities and National Police Service. That the finding indicated there were 15,045 bags branded as sunflower and that there were 257 packages of scrap metal. That there were 15 bales of empty bags for packaging rice. That they documented the findings in an inventory dated 20. 11. 2019. That PW1 then assessed the taxes due for the goods and established that the value of the rice was Kshs. 22,116,251/= and taxes for the rice was Kshs. 13,060,875/= while the value for scrap metal was Kshs. 416,360/= whose tax was Kshs. 81,192/=. That the goods were seized.

13. PW2, Godfrey Munga, an officer working with KRA in the customs department said that his duties were to clear vessels leaving Mombasa Port. He said that on 28. 10. 2019, a vessel by the name Al Fazal went into the port of Kilindini. That the agent of the port informed them of the arrival of the vessel and as per the procedure, they conducted formalities to gather details of the vessel. That the shipping agent informed them that the vessel would like to move from Kilindini to Old Port. That they issued a transire as per the declaration and the port of destination and the transire was issued to the captain to allow him to sail coastwise. That a few days later, they got a visit from KRA Investigations Department who asked for the transire and the documents.

14. PW2 said that they also obtained documents of the ships particulars which is equivalent of a log book and gives information concerning the vessel engine power. He said that he also had a copy of the clearance certificate from the last port, one from Zanzibar showing that the vessel came from Zanzibar. That they had a manifest showing 1,000 bags of rice and 10 tonnes of scrap metal. That they wanted to know of personal effects such as watches, mobile phones, laptops, if there were any parcels that the master ship was carrying, and if the vessel had any food stuffs which were declared. That they got declaration showing that there was no ammunition, drugs or inceptors and that they got a crew list showing the names and nationalities of crew members as well as a blue book that gives a summary of the vessel.

15. PW3, Jonnes Nyangweso from KRA said that he profiles tax issues and that he also investigates cases that have been profiled. He said that he also does actual verification of the goods and tax assessment. That during the period under investigation, they received information that some goods were being offloaded from MV Alfazal. That the goods were rice and scrap metal, the master of the vessel was Mel Abdalla and that the vessel was registered in Zanzibar. He said that Maur Abdalla was the Director of Federal Investments and that there were 15,045 bags of rice and 257 bales of scrap metal with a tonnage of 16 tonnes. That there were documents presented by the shipping line and that in the transire, there were 1000 bags of rice and 10 tonnes of scrap metal.

16. PW3 testified that the verification was done by Kenya Bureau of Standards, the police and KRA officials did the actual count of the bags of rice and that the verification was done in the presence of the owner of the goods. That in preparation of the transire, KRA officials relied on the information given by the shipping line and that there was no payment at the time when they were doing the verification. That they calculated the tax due and informed the suspects, thereafter recorded statements. He identified the accused as the ones before court.

17. PW4, No. xxxx PC Obed Balesa Gazette Notice No. 217 of 28/12/2010 said that on 20. 11. 2019 while on duty, he visited the port of Mombasa together with his colleagues under the leadership of Mairura. That they documented the scene which was a vessel by the name MV Alfazal by taking photographs. He said that photo No. 1 showed the entrance of the warehouse plus bags of rice, Photo No. 6 showed sacks of scrap metal, Photos No. 7 to 11 showed entrance of warehouse No. 2 plus bags of rice taken at different angles, photo 12 to 14 showed the entrance of the warehouse No. 3 with bags of rice at different angles, and photo No. 10 showed the vessel plus their name Al Fazal written on it. PW4 said that he certified the prints that were produced under his supervision. PW4 produced photos 1-5 as Exhibits 16 A-E, photo 6 as Exhibit 17, photos 7-11 as Exhibits 18 A-E, photos 12 to 14 as Exhibits 19 A-B, photos 15-17 as Exhibits 20 A-C, Photo 18 produced as Exhibit 1A, the certificate as Exhibit 21, the Gazette Notice as Exhibit 22, and the report as Exhibit 23.

18. PW5, No. xxxx PC Mary Muthoni Ndegwa attached to DCI KRA Unit said that she was the investigating officer in this matter. That on 17. 11. 2019, her supervisor, Nicholas Langat allocated the case to her to investigate concerning the importation of rice and scrap metal. She said that she was instructed to investigate the matter. That the information received was that MV Alfazal Z1438 had arrived at Kilindini Port on 28. 10. 2019 and as it was the procedure, the shipping agent which was Captain Agent Ltd went to the customs office at Kilindini Port and informed them of the arrival of the said vessel.

19. PW5 testified that she requested the Customs Officer to go and aboard the vessel to establish the crew, and whether the vessel was carrying any ammunition, and that it was a multi-agency operation. That the same was done and the customs officer was presented with documents which included the outward manifest of the vessel - Exhibit 4, the certificate of registration - Exhibit 7, Certificate of clearance - Exhibit 8, the customs forms - Exhibit 9, parcel list - Exhibit 10, a list of consumable stores - Exhibit 11, cargo declaration - Exhibit 12, the ammunition form - Exhibit 13, crew list - Exhibit 14, and the blue book – Exhibit 15.

20. PW5 said that after the master of the vessel had presented the documents, to the master of the ship, the shipping agent requested for permission to move coastwise from Kilindini to Old Port which was the port of discharge. That he was given consent by the transire which contained the name of the vessel, the tonnage, and name of the master. That as per the transire, there was 1,000 bags of sunflower rice of 50 kgs each together with 10 tonnes of scrap metal. PW5 produced the transire as Exhibit 5. That once they had been given consent to move from Kilindini Port to Old Port, they proceeded to the Old Port. That it was at the point of clearance that the customs officer realized that there was under declaration. That a joint verification was carried out between the consignee Federal Commercial Investment Limited, the shipping agent Captain Shipping Agency Limited, KRA officials – Evan Mairura who is the Assistant Manager Investigations Department together with Johnes Nyangweso, Port Health, and Kenya Police Service, PW5, and the Scene of Crime officer. That it was established that there were 8,629 bags of 50 kgs rice. That in total, there were 15,045 bags. That there were 8,629 of 50 kgs rice and 6416 bags of 25 kgs rice which amounted to 15,045 bags. That what had been declared was 1,000 bags of 25 kgs rice.

21. PW5 said that on the part of the scrap metal, the 257 packages were weighed and it was found that it was 16 tonnes of which there was under declaration of 6 tonnes. That the inventory was signed by Evans Mairura KRA Enforcement, Obed Balesa who is scenes of crime officer, Vincent Kirui who is an officer from KRA, Mr. Maur Bwanamaka who is the consignee and Director of Federal Commercial Limited. That Omar Bwanamaka from Captain Agency Shipping Limited, the master of the vessel Hussein Abdulla Mer, Mutua Douglas from National Police Service, and Joseph Maita Mueni from Public Health. That the inventory was dated 20. 11. 2019 produced as Exhibit 6 and upon signing it, notice of goods deposited in the warehouse was prepared and the same was produced as Exhibit 2 (b). A notice of seizure of the vessel was produced as Exhibit 1 (b). That since an offence had been committed, PW5 requested for business details of the company which is Federal Investments. PW5 found directors to be Maur Abdalla Bwanamaka and the other Director Ruwa Bunda, Director of the Captain Agency Shipping Limited who is Ali Mohamed Ahmed. The business registration service was produced as Exhibit 24. That from the investigations, the master of the vessel together with the agent and consignee were responsible for the under declaration. PW5 said that he recorded statements from the witnesses and arrested the suspects in the company of other officers. He identified the accused as the ones before court.

Defence Case 22. Accused 1, Maur Abdalla Bwanamaka, said that he was the director of Federal Investments but he did not prepare the transire. That on 28. 10. 2018, he was inspecting his goods from Zanzibar. That he was expecting rice and scrap metal. That the goods arrived in Mombasa and that he had hired Al Fazal Reg. No. Z/1438. That the vessel was 506 tonnes, it was a dhow and was on chatter basis. That the vessel called into the port of Kilindini on 29. 10. 2019. That the vessel was cleared to sail to the anchorage at Mtongwe. That it had to be verified and cleared. That it was mandatory for the vessel to dock at Kilindini. That a multi-agency team boarded the vessel and upon satisfaction, the Kenya Revenue Authority authorized the vessel to sail the discharge to old port.

23. The 1st accused said that a transire was issued to him by the border control officer who boarded the vessel. That he had no business with the transire as the importer upon sailing to Old Port as the vessel was received at Old Port on 29. 10. 2019. That it was confirmed to be validly at the Old Port to discharge the goods but he could not collect the goods which are still lying at Old Port. That the goods were discharged to the custom control warehouse. That a request to discharge the goods was made and he got permission to offload the cargo on 4. 11. 2019. The 1st accused said that he had not deposited his goods to custom warehouse and that deposit of the goods in the warehouse was done pending investigations. That they made their own declaration to comply with the tax obligation.

24. The 1st accused further said that on 18. 11. 2019, they made a declaration and lodged their good into the Simba system. That entries were issued and processed. That the first entry was No. 2019/MSA/7383712, the second entry was 2019/MSA/7384078, the third entry was 2013/MSA/7383724, the fourth entry was 2019/MSA/7384055, and the fifth entry was 2019/MSA/7834029. That those were the entries he made to help him clear the cargo. That it is a self-declaration system and he made the payment for scrap metal where he deposited Kshs. 77,000 and the scrap metal was entry number 2019/MSA/7384029. He said that he had not paid for the other entries. That the Simba System acknowledged them but they were not able to pay the taxes.

25. The 1st accused testified that they received investigators who went to the Old Port to investigate the cargo and that he was invited to record statements from the police on 20th December. He said that he had imported a previous consignment which became subject of investigations and that it was alleged that he had not paid taxes. That he recorded statements with KRA at Forodha House and willingly produced documents for importation. That owing to the consent order with KRA, they made payment for the scrap metal and payment for 2019/MSA/7384024 totaling to Kshs. 4,000,000/= and the caveat was lifted against the entries.

26. Accused 2, Ali Mohamed Ali, said that he was the director of Captain Shipping Agency and that he operated dhows and small boats. He said that he is a captain and that they book ships to Mtongwe anchorage. That government official inspects the ship and give the go ahead. That Kenya Maritime Authority and KRA work closely with them. That MV Alfazal anchored at Mtongwe and the ship was inspected. That he gave the officer from KPA, Maritime and KRA information of the ship. That the ship docked in October, 2019. That the ship was allowed to proceed to old port and all the information was given online. That the transire is prepared by KRA. That a transire is a document that authorizes a ship to move from one port to another port. The 2nd accused said that he does not go to Zanzibar and he normally waits for the ships in Mombasa. He said that he was also not involved in the loading of the vessel. He said that the document he had was about Captain Shipping Company and the director mentioned in the document was him. That he was not present when KRA and Maritime officers inspected the vessel, and that his signature was not on the transire.

27. Accused 3, Abdulla Hussein Mer said that he was a businessman and he stays in India. He said that he knew MV Alfazal as he was the Captain. That the vessel was registered in Zanzibar No. Z/1438/Zanzibar Haji & Sons India. That the names of the crew were indicated in the document for the vessel. That they left Zanzibar on 19. 10. 2019 and he was given clearance from Zanzibar Port. That however, he could not read the documents and that he did not know what was written in the documents. That he gave all the documents in the envelope to the port officials. That the police and KRA officials were present. That he did not participate in the preparation of the transire and did not know what was in the document although he signed them in Gujarati. He said that the transire allowed him to move from Kilindini to Old Port and that he used half an hour to move. That he brought the goods but he did not know how much they were as his duty was to control the vessel. That the goods were loose and they belonged to Bwanamaka. That KRA officials went to the Old Port and that they held a meeting with them. That they stopped the offloading of the goods in order to count the goods.

Appellant’s Submissions 28. Although the appellant raised several grounds of appeal, the submissions have zeroed in on only two issues namely: -a.Whether a transire is a document used for tax declarationb.Whether the imported was evading to pay taxes

29. For the first issue, he submitted that Section 2 of the East African Customs Management Act, 2004 defines a transire as a certificate of clearance issued to any person under Section 100 of the Act to carry goods coastwise or to transfer goods and that it is generated and provided by the proper officer. It is therefore contended that the document is not used for assessment of tax but it is purely used for movement by a vessel along the coastline and it is to be submitted within 24 hours after receipt by the proper officer. It is argued that the prosecution witnesses gave the chronology of tax assessment process at the coast and confirmed that a transire is issued to grant permission for the vessel to move from Kilindini to Old Port.

30. It is also argued that it is the duty of the proper officer to board the vessel and confirm the information that was declared by the chief master for accuracy while making the transire. That the mistakes made on the transire should not be shifted to the importer but to the proper officer who makes the transire.

31. On the second issue of whether the importer was evading to pay taxes, the appellant submitted that the goods were not found to have left the port without payment of taxes and in fact were not seized but were deposited under notice of goods deposited in custom warehouse. That it was therefore not true that the importer tried to get the consignment out of the port without payment of duty. That the Kenya Revenue Authority arrived at the port and found that the consignment was being offloaded for inspection as is the procedure before tax assessment is done by a clearing agent and not a shipping agent to assess the tax. That the tax as assessed by Mwando Logistics Limited was accurate and there was no under declaration. The appellant’s counsel argued that the assessments entered by Mwando Logistics Limited were used by the trial magistrate to determine the matter in the lower court. The appellant argued that they were not evading paying tax and they could only have been responsible for tax evasion for what is declared or under declared in the Kenya Revenue Simba System and not a transire.

32. In conclusion, he submitted that the trial magistrate pronounced herself against the imported even after the importer had entered into consent with KRA for payment of taxes against the goods and adhering to all taxing procedures after which they were entitled to collect their goods under consent order by Ogola, J. dated 26th June 2020 in which the trial court was a party. That following the consent dated 26th June 2020, the importer managed to clear entries Nos. 7384055 and 7384078. That the importer was however barred from clearing goods under entries number 7384029, 7383712 and 7383724 as KBS directed that the goods be reshipped back as they were at their tail end of expiry date. That as a result of the directives given by KBS, the clearing agent, Mwando Logistics Ltd, the import entries were cancelled to export entries by KRA and the importer was given a waiver for demurrage and warehouse rent.

33. That by the time the trial magistrate was finding the imported guilty of the charges, she had lost jurisdiction of the subject matter due to the goods changing status from import to export goods which were not attracting any taxation which has caused the imported losses and he has suffered immensely.

Respondent’s Submissions 34. The respondent’s submissions were to the effect that the appellants were rightly charged and convicted as they all played a role of the owner, agent and master and are culpable for the offence committed. The relied on the holding in Total Kenya Ltd v KRA (2018) eKLR. The respondent also submitted that the ingredients of the offences against the appellant were proved as the quantities indicated in the transire were different from the subject upon verification and that the discrepancy was established to have featured across all other importation documents presented to the customs officers therefore establishing the criminal intention of evading duty. It was argued that Section 100(2) of the Act required that the master or agent of any vessel intending to depart coastwise or carrying goods for transfer shall deliver to the proper officer an account in triplicate on the prescribed form containing the particulars of all cargo taken on board for carriage coastwise or for transfer. It is contended that the document should therefore be accurate of the particulars and description of the consignment.

35. On whether the sentence was lawful, it was argued that in imposing an imprisonment in default of a fine, the trial court was safeguarding public policy in the event that the appellant failed to pay a fine.

36. On whether the order for destruction of the consignment seized and payment of duty were lawful, the respondent submitted that Section 199 (b)(i) provides for forfeiture of goods in respect to the offence of conveying imported goods contrary to the Act by declaring false information in the transire has been committed.

37. The respondent submitted that Section 210(g) classified goods in respect of which in any matter relating to customs, any false of incorrect document statement of representation is made as being liable to forfeiture. That the order of this court for destruction of part of the rice consignment confirms that the entire rice consignment is expired for release to the public or export back to the country of origin. That the order to pay outstanding taxes of Kshs. 9,654,000/= was lawful as the appellants were not exempted from paying taxes.

38. Concerning the consent that was entered into on 26th June 2020, the respondents have argued that up to the time that the trial court had pronounced its judgment, the consent had not been executed. It was prayed that the appeal be dismissed.

Analysis and Determination 39. This being a first appeal, the mandate of the court is as was aptly set out in the case of Okeno v Republic [1972] EA 32 as follows:-“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R. [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] E.A. 424. ”

40. After considering the grounds of appeal, records of the trial court and submissions, issues for determination are as follows: -i.Whether the appellants were rightly charged and convictedii.Whether the sentence was lawfuliii.Whether the orders for destruction of the consignment seized and payment of duty were lawful

41. The trial magistrate in finding the appellants guilty said that a multi-agency from KRA, National Police Service and KBS inspected the vessel before it was permitted to move coastwise from Kilindini to Old Port vide a document known as transire. The trial magistrate suspected there was collusion between the accused persons and the multi-agency team who ought to have noticed on inspection that there was under declaration. The trial magistrate also said that she did not believe it that 5th accused person did not understand English and Kiswahili as he was a 5-year captain and ought to have known what a transire is. The court however provided the 5th accused with a Gujarati interpreter in court. Whether the captain understood what was written in the transire is a burden which the prosecution ought to have discharged.

42. As the trial magistrate said, it was obvious that the cargo transported by MV Alfazal was not what was declared in the importation documents. PW1, Evanson Mairura, Assistant Manager, KRA Investigations Department, enumerated the customs processes that are supposed to be adhered to when vessels arrive in the country and the 8th step is for KRA to assess tax and the importer to pay before goods are released to the importer. PW1 said that there were officers at the Old Port from whom they inquired about the vessel and obtained documented information they arranged for the logistics for counting of what was on board the vessel and what had been declared and that is when it was found that there was under declaration. These goods were offloaded into the KPA warehouse according to PW1 and were therefore still within the custody of the multi-agency team with the authority to demand from the appellants the import duty due for the goods in the vessel. The decision to charge the appellants has resulted in loss of revenue for the government of Kenya and huge economic loss for the appellants as the 1st and 2nd appellant’s significant amount of rice got expired whereas the vessel has been lying in waste at the port since 2019.

43. Having considered the evidence of prosecution witnesses and defence by the appellants, this court finds that the threshold of beyond reasonable doubt was not achieved as it was not proved that the duty on the consignment was not going to be paid for upon assessment by KRA. This court therefore is of the view that where the prosecution has not achieved the standard of proof of beyond reasonable doubt, it would be unsafe to find a conviction on such shaky ground. The conviction of the appellants is therefore quashed and sentence set aside. Where the fines have been paid, the same should be refunded. The rice in Shade 2 having been declared unfit for human consumption should reshipped back to country of origin. Right of appeal 14 days.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 30TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentMr. Lisanza Advocate H/B for Mr. Shimaka Advocate for the appellantHON. LADY JUSTICE A. ONG’INJOJUDGEOrder: Certified copies of the judgment to be supplied on or before 3. 11. 2023. HON. LADY JUSTICE A. ONG’INJOJUDGE30. 10. 2023