[2022] KEHC 1486 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CRIMANAL APPEAL NO. E008 OF 2020

FRANCIS MUGO.....................................................................APPELLANT

VERSUS

REPUBLIC............................................................................ PROSECUTOR

(Being an appeal from the original conviction and sentence by Hon. E. MBICHA SRM MERU CMCR No 446 of 2016 on 15/9/2020)

JUDGMENT

1. The appellant was charged before the trial court with two counts of dealing with and possession of game trophies contrary to Section 95 as read with section 95 as read with section 92 of the Wildlife Conservation and Management Act 2013. The particulars of the two counts were that on the 1st day of March 2016 at about 16000 hrs at Nkomo area within Meru Meru county was jointly found, with others not before the court, dealing with and in possession of game trophies namely, two elephant tusks weighing 15. 5 kg and 14 kg respectively and totaling to 29. 5 kgs, with a street value of kshs. 2,000,000 without permit.

2. In an endeavour to prove its case, the prosecution paraded a total of six ( 6) witnesses who included three Kenya Wildlife Service Officers, who had a tip-of of a person in possession of wildlife trophies, they carried out an operation and effected an arrest and recovery of the two tusks. PW 4, was a research scientist at National museum of Kenya to whom the two exhibits accompanied by an exhibit memo form were submitted for purposes of verifying and analysing if the exhibits were indeed elephant tasks; PW 5 was a Kenya Wildlife Service Office in charge of armoury were recovered exhibits are kept and the person to whom the exhibits were handed over about one year after the same had been recovered while PW 6 was a police officer who took over the investigation of the matter from a colleague who had been transferred.

3. The evidence of PW 1, 2 and 3 were to the effect that on the 1st March 2016, they were called and directed by their incharge in Nanyuki to proceed to Nchiru where there was one offering elephant tusks for sale. The three proceeded to Meru, went to the service officers in Meru for purposes of acquainting themselves with the targeted area of operation, got facts and tip-offs. One of them, PW 2, Charles Mugambi, did hire a taxi for use as camouflage instead of the service vehicle which they considered conspicuous.

4. The party then proceeded to Nchiru and visited Nchiru police station to report presence and mission before proceeding to the scene. At Nchiru, PW 2, went ahead on a fact finding mission to meet those selling the trophies while posing as a buyer, saw the tusks in possession of four men at Kimutongo village, negotiated a price but declined to pay in the bush. He then excused himself to go to Makutano and bring cash.

5. He then went back to his colleagues who were waiting at Nchiru and agreed that he would go ahead as they followed him and that once he reaches to place and see the person in possession of the tusks he would put on his hazards as an indication for his colleagues to act. He indeed reached to place and as the people were bringing the tusks the land cruiser in which his colleagues were appeared and the people with the tusks dropped the tusks and took to their heels. One of the people was an old man, unable to run fast enough and was arrested by PW 2 and handcuffed by PW3. The old man so arrested was the person who was negotiating the price and was then charged and is the appellant before the court in these proceedings.

6. PW 2 then prepared and signed the inventory of the items recovered from the men and marked same for identification as (MFI 2). The accused, he said, refused to sign the inventory. The exhibits were taken to Nchiru police station and appellant booked at the same station initially before being transferred to Meru.

7. The tusks were then weighed and found to be 15. 5 kgs and 14 kgs making a gross weight of 29. 5 kgs. At the time of weighing the tusks were muddy and with stains of blood at the base.

8. The charges were then drafted after suspect was escorted to Meru Police Station before being arraigned in court. He then identified the tusks as those he had recovered and marked them a MFI 1 (a) & (b).

9. Upon cross examination, the witness said that the tusks had been hidden in a bush at a place called Kamutomo within Ngumo area and that PW2 had not indicated in his statement where the exhibit had been recovered. PW 2 also confirmed that there was a church nearby and the space between the church and the bush was about 30 meters. He was unable to state from which part of the territory of Kenya the tasks had been obtained. The witness also confirmed that subsequent weighing had returned a shortage of half kilogram on each of the tusks.

10. PW2 also confirmed that the accused had a previous case in Nkubu which formed the basis of opposition to bond but denied being a witness to the Nkubu case and that he had not gone personal against the accused.

11. The three insisted that the exhibits in court are the same ones recovered on the material day.

12. For PW4, the evidence was that he did receive an exhibit memo form accompanying two exhibits from Meru Police station. The exhibits were suspected to be elephant tusks and he was requested to identify the animal they belonged to. He produced the exhibit memo form as exhibits P.3. He conducted his analysis and found both exhibits marked MFI 1 (a) and (b) to be elephant tusks. He prepared a report dated 9/5/2016 and signed which he then produced in court as exhibit P 4. He said that he holds PHD in Archeology.

13. On cross examination he said his task was to verify whether the two exhibits were elephant tusk or animal remains, he was unable to verify it the same were from female or male elephants but did verify that the same were from adult animals without establishing the ages of such adult animals. When presented to him the two tusks had writing denoting their weights in kilograms but he did not weigh them. He said that the weights of tusks change owing to lose of moisture.

14. PW5, No. 7382, KWS CPL Jackson Muli gave evidence as the incharge of the armoury where the tasks were kept and who on receipt of the same, he weighed them using a spring scale. The same were handed to them after one year and he established weights of 13. 5 kgs and 15 kgs. He however could not remember the date he weighed the exhibits and did not have any documents in court to show he did the weighing nor the weighing scale used. He confirmed that the exhibits in court are the same ones handed over to him for safe custody and identified them with the writing on them. He also identified the exhibit memo form as part of the exhibits handed over to him.

15. PW 6 introduced himself to court as an officer stationed at Meru Police station anti -crime branch and who had taken over the file from a colleague who had been transferred as the investigating officer. He said that he had been handed over to all the documentations in the file and shown exhibits kept at KWS armoury. He did bond all the witnesses to appear in court and that the exhibits handed over to him were the tusks in court with marks as of the date of taking over. He then produced same tusks as exhibits 1 (a) & (b) while the inventory was produced as exhibit P.2.

16. On cross examination he confirmed having taken over investigations but without recording own statement but did the statement for P.w 5. He admitted the disparity on the weight of the tusks as indicated at the time of arrest and later weighing but explained that the difference was on account of time and loss of moisture.

17. For the appellant, the evidence given and recorded was to deny any contact with the tusks. He contended that he was in Nchiru for the purposes of his business as a goat trader when police arrested him when other people run away and he was unable to run on account of his age.

18. On that day he said that he had arrived at Nchiru Market at 10 a.m, was near a church situate some 300 metres from the stage when he saw people running in different directions but did not run and was thus arrested. He denied any telephone calls by the police during which he offered to sell elephant tusks and that he had never dealt with tusks in his life.

19. He said that he was unable to see in court the exhibit he was said to have been found with and that the ones in court were of different weights.

20. He said that he had had another case of wildlife trophy in Nkubu in which he was acquitted but on acquittal PW 2 threatened to pursue him till he gets convicted. He said that when arrested at Nchiru, he was at a public place and he had no other money other than kshs 10,000/=.

21. On cross examination he admitted that there were many people at the place and only him was arrested. He insisted having been arrested by noon and not later.

22. Having reviewed the evidence presented before it, the trial court found the evidence cogent, convicted the appellant on the offence of possession of wildlife trophies contrary to section 95 and sentenced him to pay a fine of Kshss 1,000,000 or in default serve three years imprisonment.

23. That decision aggrieved the appellant culminating in the instant appeal in which nine grounds were set out. All those grounds when looked at closely fault the trial court for trivial and cursory consideration of the availed contradictory evidence on record and the disjunctive manner of appreciation of that evidence in arriving at a conviction that was not merited on the basis that there was never proof of the case beyond reasonable doubt. Conviction and sentence for the lesser charge, under section 95 of the Act was considered and termed erroneous as there was no evidence to support same. Essentially, the appeal raises the issue for determination to be whether the case against the appellant was proved to the requisite standard of proof beyond reasonable doubt.

ANALYSIS

24. As a first appellate court the courts mandate is to re-analyse and re-evaluate the entire evidence afresh with a view to coming to own independent conclusion.

25. In this matter, the arrest of the appellant at the scene of the alleged offence and the recovery of the trophies at the same scene are not in dispute. The dispute is whether the appellant was in possession and was provoke into negotiating a sale with PW2 or if he was just caught when the persons in possession took off running and he was not able to run due to age.

26. In challenging the conviction, heavy premium was placed on the question of the discrepancy on the weight of the two tusks forming the basis of prosecution. To the appellant the difference in weight of about 1 kilogram was a basis for the court to find that the exhibits were either swapped of not properly preserved by the prosecution and was thus a basis to earn him an acquittal. The appellant cited to court the decision by the Tanzanian Court of Appeal in Malumbo vs DPP CRA 229 of 2011, (2011)1EA, 280 for the proposition of the law that exhibits needs to be preserved and handled with care between the time of seizure and the time they get analysed by the expert because exhibits are vital evidence. It is important to point out that decision was grounded on what the court identified as Police General Order 229, which must be an Order under the Tanzanian law. Nothing was said by the appellant that we have a provision in pari materia or similar Order in Kenya under the Police Service Act. While the need for preservation of exhibits cannot be wished away, the decision cited, in my view, is not binding on this court having not been aligned to our statute.

27. That notwithstanding, the appellants point is that the disparity amounted to an inconsistency or contradiction in evidence that justified a reasonable doubt in the mind of the court to be resolved in favour of the appellant by an order of acquittal.

28. The position taken by the Kenyan court is that contradictions or inconsistencies to merit disturbance of a conviction must be grave and not just any inconsistency. The court of Appeal in Richard Munene v Republic [2018] eKLR set the law on what inconsistency or contradiction would sway the court when it said : -

“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”(Emphasis added)

29. In the proceedings giving rise to this appeal, the main issue was whether the materials suspected to be game trophies, namely elephant tusks, were indeed such tusks, and if the appellant was found in their possession. I find that the evidence of PW5 that the materials he analysed were indeed elephant tusks was a proof beyond reasonable doubt in that regard. I equally find that the evidence of PW1, 2 &3 on how the arrest was effected is credible and not shaken by the appellants defence that he was arrested because he was unable to run. I find no reason to hold that for no disclosed grudge, the three witnesses could just settle on the appellant and pin him to an offence he was not connected to.

30. Being satisfied that the appellant was found in possession of the items established to be elephant tusks, the next question must be whether the number and weight of the material was material to the conviction or just sentence. My reading of the Wildlife Conservation and Management Act does not reveal that the weight or value of the trophy is of significance as fundamental particulars of the charge. The concern being the preservation of the species for posterity, the weight or indeed the number of the trophies may not determine conviction but may be of relevance in sentencing. To that extent I do find that the disparity between the weight disclosed in the charge sheet and that in the inventory did not go to the root question whether the appellant had been found with a game trophy. I find the disparity in weight not to be grave as to invite invitation to disturb the conviction and that the totality of the evidence painted a case well prosecuted and proved.

31. Before I pen off, there is a comment I need to make on the framing of the charge. I notice that the two counts were crafted to suggest that the offenses were revealed by the reading of both section 92 and 95 of the Act. The two section indeed create complete and distinct offenses, with distinct penalties and it is not necessary to read them together to reveal an offence. This however do not go to the merits of the appeal.

32. Consequently I find no merit in the appeal which is hereby dismissed.

DATED SIGNED AND DELIVERED THIS 17TH DAY OF MARCH 2022

PATRICK J.O OTIENO

JUDGE

In presence of

Mr. Ndubi for appellant

Mr. Maina for respondent

PATRICK J.O OTIENO

JUDGE