[2023] KEHC 19384 (KLR)

Gitonga v Republic (Civil Appeal E027 of 2021) [2023] KEHC 19384 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19384 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Civil Appeal E027 of 2021

FROO Olel, J

June 27, 2023

Between

Simon Ngatia Gitonga

Applicant

and

Republic

Respondent

(Judgment of Hon R.k Koech {SPM} dated March 3, 2021 in Maralal Cmcr No (so) No 176 of 2020)

Judgment

1. The appellant was charged with the offence of dealing in endangered species contrary to Section 92(2) as read with Section 105(a) and 105(b) of Wildlife Conversation and Management Act 47 of 2013. The particulars of the offence were that on the 19th day of June 2020 at around 1630hours at Lengarde area along Wamba-Swari murram road in Samburu East sub county within Samburu County were jointly found transporting suspected endangered tree species named East African sandal wood (Osiris lanceolate) weighing approximately 400kg with a street value of Ksh 1. 2 million using a motor vehicle registration number KBY 022K, make Toyota Land cruiser Prado white in colour without permit from director general of Kenya wild life service.

2. The prosecution called five (5) witnesses to prove their case. The appellant was put on his defence and gave sworn evidence, his co accused also testified and gave sworn evidence. The trial court did consider the entire evidence presented and found the appellant guilty and sentenced the appellant and his co accused to seven (7) years imprisonment.

Facts at trial 3. PW1 Peter Mburu Gicheha testified that he works at Kenya wildlife services as a ranger and was attached to Wamba Kenya Wildlife station. On June 19, 2020, he was at his place of work along Swari-Wamba murram road with his colleague one Sombe Masoi. They were patrolling using motor vehicle KCK 876H. Along the way they met a Toyota land cruiser Prado white in colour registration number KBY 022K. They stopped the said motor vehicle and found two persons therein. The driver was Simon Gitonga, the appellant herein, while the passenger was Ali Ibrahim. PW1 stated that they insisted on inspecting the car and when they opened the door, they found that the car was carrying Sandal wood which was about 400kgs.

4. PW1 stated that they informed the OCS Wamba police station, who rushed to the scene with his team comprising of other police officers and they took over the investigations. He suspected the wood to have been sandalwood and he knew the same as he had worked within Samburu for five years. He identified the appellant on the dock. In cross examination the witness stated that he stopped the car (suit motor vehicle) on June 19, 2020 at about 4. 30pm and on inspection discovered that the suit motor vehicle was carrying sandalwood. The accused did not look shocked and he identified the sandalwood out of experience, having worked with Kenya Wildlife service for 15 years. The wood was peeled and had a reddish look and it weighed approximately 400kg. He did not establish its value and the accused did not try to escape.

5. PW2 Sombe Ole Masoi testified that he was a corporal attached to Kenya wildlife service Wamba station. On June 19, 2020 he was on patrol together with PW1 at Swari area when they met/encountered a white Toyota Land cruiser Prado registration number KBY 022K. The said suit motor vehicle has two occupants when they stopped it. On inspection they found that the appellant and his colleague were carrying sandalwood and they called the OCS- Wamba police station who came to the scene with other officers and arrested the appellant. PW2 stated that he had worked for KWS for 30 years and could easily identify sandal wood. He further identified the appellant on the dock. In cross examination PW2 stated that they usually carry out normal patrols and intercepted the suit motor vehicle which on conducting a physical search they found it stuffed with sandal wood

6. PW3 Paul Kinuthia Ruithi stated that he was in the business of car hire and owned the suit motor vehicle KBY 022K white in colour. He also owned a Toyota fielder. In June 2020, he hired out his car to one John Njoroge who runs a company named and styled Kentel Car hire. The said John Njoroge had told him that he had a group of doctors going around treating Covid 19 and he needed to hire the care to take them round.

7. The suit motor vehicle had been hired out for four days and the first two days were paid. Later the said John Njoroge extended the hire period to six days. PW3 checked where the car was using a motor vehicle tracker and discovered that it was at Wamba. On further inquiry he was told that the motor vehicle had been impounded by the police. The next day he travelled to Wamba and was informed that the suit motor vehicle was impounded for carrying sandal wood. John Njoroge later confessed that he had lied that the motor vehicle hired was to be used to take doctors around, he had given it out to some people to use it to ferry/carry sandalwood. PW3 identified the suit motor vehicle log book as MFI 1(a) and (b) and car hire agreement MFI 2. The said agreement was dated 6/6/2020 and the said John Njoroge was not the accused before court.

8. In cross examination PW3 stated that he would normally vet those he hired his car out to and personally knew John Njoroge and where he resides. After the incident (his car being impounded) he had not talked with the said John Njoroge and was told that he was in remand. While hiring out the suit motor vehicle he did not know it would be used to carry sandalwood which is a prohibited tree. The court at this stage want to Wamba police station and PW3 identified the suit motor vehicle as MFI 3(c) and the sandalwood as MFI 3(b).

9. PW4 Wycliffe Menta stated that he works with Kenya Forest Research institute (KEFRI) and was based at Nation forest product programme. He held a degree in Biology technology from Technical University and had 15 years’ experience as a research technologist. On 6/8/2020 he received sample form from a police officer called Martin Maina in his capacity as the in-charge wood anatomy. He was required to identify the species forwarded in the accompanied the exhibit memo. On 25. 08. 2020 he did an analysis of the samples and prepared a report Ref 721/47/2020. The samples were marked ‘A’. All the wood pieces were the same. They were brown with a sweet fragrance. Upon examination under the microscope, the trees/samples were osiris lanceolate (sandalwood). He prepared a report which he produced as Exhibit 5. In cross examination, PW4 stated that samples are usually brought and received by a designated officer and they analyse what they receive. He could not tell where the samples were found, his work was only to analyse and write a report.

10. PW5 PC Martin Mumaina testified that he was attached to DCI Samburu East performing general investigations. On June 19, 2020 he was assigned a case of dealing with endangered species. The accused had been arrested by PW1 and PW2 at Lengarde along Wamba – Swari road while carrying sandalwood on motor vehicle no KBY 022K Toyota Prado white in colour. The said motor vehicle was being driven by the appellant herein and his passenger was on Alio Osman. Upon being arrested, the OCS Wamba police station was informed and he went to the scene with other officers including PW5. The scene was documented and inventory made capturing the recovered items. The suit motor vehicle was loaded with 400kg of sandalwood, also recovered in the car was a car hire purchase agreement belonging to Kentel Care Hire dated June 6, 2020 and the appellants driving licence.PW5 produced the inventory and previously identified documents/item/photographs/reports as exhibits.

11. In cross examination PW5 stated that the sandal wood weighed 400kgs but he did not have evidence to prove that weight. The value was approximated at Ksh 1,200,000/- but he also did not have a professional valuation report. As regards the samples taken for laboratory tests, the same were randomly picked from the pile of sandalwood, he prepared the exhibit memo and took it to Kenya Forest Research Institute for testing. He also established that his suit motor vehicle was hired out and there was evidence to that effect.

12. The appellant gave sworn evidence and testified that he was a track/matatu driver with super metro Sacco route 105 which ply between Nairobi and Kikuyu. On June 20, 2020 he left Nairobi for Nanyuki to see his sick mother. He arrived in Nanyuki at about 1. 00pm and was with his mother until 7. 00pm and as he watched news, he saw a new item stating that motor vehicle KBY 022K being announced to have been abandoned at Samburu East. He recognised the motor vehicle as he had hired it on June 6, 2020 to transport his mother from Kenyatta National hospital to Nanyuki. He called John Njoroge an informed him about the new item. On June 21, 2020 John Njoroge sent him Ksh 5,000/- and told him to join him at Wamba and he arrived there at about 12. 00 noon and went to the police station and he explained the reason why he was there. He was directed to the DCI office and found PW5 who interrogated him and he told him he had been sent by John Njoroge. He gave PW5 the phone contact of John Njoroge and they talked.

13. PW5 continued to investigate him and asked him questions. He also insisted on taking the appellant finger prints to compare with what was tape lifted from the impounded car. He was subsequently arrested and charged in court on June 23, 2020. He was surprised why John Njoroge was not called as a witness yet he had returned the car within 24 hours on June 8, 2020. The appellant also produced a Kenya wildlife news bulleting printout showing that the drive of the suit motor vehicle has escaped and locked the motor vehicle wheels. The appellant denied driving the suit motor vehicle and further reiterated that PW1 and PW2 has stated in the publication and website that the driver of the suit motor vehicle had escaped and he was not the said driver.

14. The appellant was charged jointly with one Alio Ibrahim Osman who also gave sworn evidence in his defence. He testified that he was a livestock trader and every Wednesday he would leave Isiolo town for Wamba to enable him to go Lolkuniani market following morning (Thursday). On 17. 06. 2020 he followed the same routine and arrived at Lolkuniani at 7. 30am. He found his two friends waiting for him and went to have tea at the local hotel, as they waited for the livestock market to start. They went to the market and as he was entering the said market, he was stopped by two (2) Kenya Wildlife Service officers who requested him to accompany them to a place briefly. He stated that he did not want to argue with them and boarded their motor vehicle, which sped off and was driven at high speed for about 30 minutes until they arrived at the scene along Wamba – Maralal road. At the scene, he could see a motor vehicle parked about 10 metres off the road. The said motor vehicle was registration number KBY 022K, white in colour.

15. He was asked if he knew about the motor vehicle and he replied in the negative, while still arguing with the KWS officers, regular police officers came to the scene and the OCS was told that he was a suspect. He was placed under custody, interrogated by PW5 who forced him to sign a paper which he had not read. On June 23, 2020 he was arraigned in court and charged with the offence of transporting prohibited items- sandalwood. The allegation/charges against him were fabricated and were false. If indeed he had been arrested earlier as alleged, they should have taken his photographs and that of DW1 at the scene next to the recovered motor vehicle. DW2 concluded by stating that he was not involved in smuggling sandal wood. He did not know the owner of the suit motor vehicle or did he know DW1. PW5 also did not do a phone analysis to track his movements. The case against him was total fabrication.

16. The trial magistrate in his considered judgement did find that the prosecution had proven their case beyond reasonable doubt and proceeded to convict and sentence both the appellant and his co accused to served 7 years imprisonment.

17. The appellant being aggrieved and dissatisfied by the convicted and sentence did prefer this appeal and raised eight (8) grounds of appeal namely;a.That the learned trial magistrate erred in law and fact in convicting the appellant to serve 7 years imprisonment yet the prosecution did not prove its case beyond reasonable doubt.b.That the learned trial magistrate erred in law and fact I convicting the appellant to seven 7 years imprisonment and failed to consider the strong evidence of the defence.c.That the learned trial magistrate erred in law and fact in convicting the appellant to serve 7 years imprisonment by relying on circumstantial evidence, suspicion and unclarified evidence on who put the money where it was found.d.That the learned trial magistrate erred in law and fat in convicting the appellant to serve 7 years imprisonment by overlooking the fact that the evidence relied on was not watertight to justify a conviction.e.That the learned trial magistrate erred in law and fact in convicting the appellant to serve 7 years imprisonment by shifting the burden of proof to the appellant.f.That the learned trial magistrate erred in law and fact in convicting the appellant to serve 7 years imprisonment on the evidence which evidence was not collaborated by the documentary evidence.g.That the learned trial magistrate erred in law and in fact in convicting the appellant to serve 7 years imprisonment by failing to consider the strong defence and submission by the appellant.h.That the learned trial magistrate erred in law and fact in convicting the appellant to serve 7 years imprisonment by relying in the insufficient evidence of the prosecution.

Appellant Submissions 18. The applicant filed his submissions on 23rd December 2022 and brought out/rehashed the evidence as presented before the trial court. On burden of proof, the appellant stated that the prosecution evidence was marred with contradiction which he demonstrated at length especially as regard the evidence of PW1 and PW2 and also the other witnesses called. The appellant stated that the said gaps in evidence left a lot to be desired and created material doubt which should be resolved in his favour. There was also failure of the prosecution to all crucial witnesses especially John Njoroge to shed light on issues regarding hiring and possession of the suit motor vehicle. Reliance was placed onNaraynan Jaisankar v Republic (2006)eKLR.

19. The appellant also submitted that he produced defence exhibits 1(a) and 1(b) evidence of new bulleting by KWS to the effect the subject motor vehicle driver fled and locked the car wheels. If the driver indeed fled, it casts doubt as to how PW1 and PW2 alleged to have arrested the driver and his co passenger, whom according to their cross examination did not attempt to flee. The evidence of DW2 also confirmed and corroborated the aspects that indeed the driver of the suit motor vehicle had fled the scene. It was also submitted that there was no weighing certificate produced to prove that the alleged sandalwood weighed 4ookgs in weight and the manner in which samples were taken did not place safeguard to prevent tempering of evidence. Nobody saw PW5 take the samples and PW5 also did not explain why he took samples on 19. 6.2020 and only forwarded them for analysis on 6. 8.2020 more than 47 days later. This puts to test the credibility and integrity of the investigations to the detriment of the appellant.

20. The appellant also faulted the trial magistrate for failing to give reasons why he accepted one version of events and rejected the other version of events. The burden of proof always remained with the prosecution and where there was insufficient evidence and where the court was confronted by doubts as to which version to accept, then the accused would be entitled to have the same resolved in his favour. Reliance was placed on Maina v Republic(2013)eKLR, Elizabeth Waithiega Gatimu v Republic (2019)eKLR and Uganda v Sabyala and others. The appellant concluded by stating that he had a plausible alibi which in totality when considered, coupled with the week prosecution case presented, made his conviction unsafe.

21. The other issue raised by the appellant was that the trial court did not consider the defence evidence presented and also did not give any reason for disregarding the same, while believing the evidence of PW1, PW2 and PW5. Was the prosecution version of events accepted based on witness demeanour or on which basis? The trial court also failed to analyse and give probative value of the defence exhibits 1(a) and 1(b) which suggests that KWS officers had not managed to arrest the persons driving the suit motor vehicle. The same ought to have been assessed and reasons given why it could not assist the defence case and this denied him his right to fair hearing as enshrined under Article 50(2)(k) of the constitution of Kenya 2010. Reliance was placed onRepublic vSahrif Mohammed Hija (2016)eKLR and Uganda v Sebyala and others.

22. The final issue raised was that the court erred in fact and law by sentencing the appellant to 7 years in jail. While section 92 of the Wildlife and Conservation Management Act prescribed seven (7) years upon conviction, the courts hands were not tied given that mandatory sentence had been declared unconstitutional. Reliance was placed on Francis Karioko Muruatetu. The trial court ought to have considered the appellant mitigation and also the fact that the appellant had been in custody for 8 months before being sentenced. This period was not considered, yet section 333(2) of theCriminal Procedure Code allowed for the same. The appellant urged this court to consider the citation of Simon Kipkurui Kimori v Republic (2019)eKLR,S v Mofokeng 1999(1)SAR 502 at sub(d), Ndeka v RepublicCriminal Appeal E007 of 2021(2022) KEHC 3(KLR) and State v Jansen 1999(2)SACR 368 (c) at 373 (g) – (l).

23. The appellant prayed that his conviction be quashed, but if the court was inclined to uphold the same, then this court should consider reducing his sentence as empowered under Section 354 of the Criminal Procedure Code.

Respondent Submissions 24. The Respondent did file their submission on January 23, 2023 and stated that they do not support the conviction and conceded the appeal based on the following reasons;a.The case was not proved beyond reasonable doubt as evidence of PW1 and PW2 contradicted what was broadcast in KWS news bulleting {Exhibit D1(a) and (b)} where it was reported that the driver of the subject motor vehicle locked the suit motor vehicle and locked the motor vehicle wheels before fleeing the scene. PW1 and PW2 in their evidence stated that the appellant and his co passenger did not flee during arrest. The trial magistrate failed to analyse the probative value of appellants exhibit D1(a) and 1(b) which suggested that KWS had not manged to arrest the person driving the motor vehicle on the material day.b.Secondly, the investigation officer told court that John Njoroge was in custody, he was the one who hired the suit motor vehicle unfortunately he was never called to clarify some of the issues regarding the hire and use of the suit motor vehicle and contradiction made by the prosecution witnesses. This undermine the prosecution case grossly and made the conviction to be unsafe. The sentence melted out though lawful was harsh and manifesting excessive in the circumstances.

Analysis and Determination 25. It is now well settled, that a trial Court has a duty to carefully examine and analyze the evidence adduced a fresh and come to its own conclusion, while at the same time noting that it did not have the advantage of seeing the witnesses and observing their demeanor See Okeno v Republic 91972)EA 32 & Pandya Vs. Republic(1975) EA 366.

26. Further this being first Appellate Court, it must itself also weigh conflicting evidence and draw its own conclusion (Shantilal M Ruwala v R (1975) EA 57. Where it was stated that it is not the function of the first appellate court to merely scrutinize the evidence to see if there was some evidence to support the lower Court finding and conclusion, 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 made the advantage of hearing and seeing the witnesses.

27. In Peter’s v Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court to merely scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion. It must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.

28. The main issues raised in this appeal by the appellant can be summarized as follows;a.Did the prosecution discharge the burden of proof to the required standard?b.Was the sentence passed harsh and/or excessive and should this court interfere with the same.

Burden of Proof 29. It is trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions(1947) 2 All ER, 372 stated as follows:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”

30. This appeal is conceded by the respondent, and in the courts considered view, it is correctly so conceded. PW1 and PW2 testified that while on patrol along wamba- swari road, the stopped the suit motor vehicle and found two occupants. The said occupants were the appellant and his co accused in the lower court one Alio Osman Ibrahim. The said witness’s evidence was that they searched the motor vehicle and found therein about 400kgs of wood, which they identified as sandalwood. The arrested persons did not resist arrest. The police were called in and the arrested person placed under custody.

31. While testifying in his defence, the appellant produced a KWS news letter as Exhibit D1 (a) & (b), where the information given was that they had intercepted the suit motor vehicle carrying sandalwood, but the driver of the said motor vehicle had escaped. Before escaping, he had locked its door’s and the motor vehicle wheels. The news letter further stated that once the driver is apprehended, he would be arraigned in court. This evidence clearly contradicted PW1 and PW2 version of events and created a big doubt as to whether their version of events was truthful.

32. Secondly the evidence presented by the prosecution as regards the circumstances of hire and possession of the suit motor vehicle was contradictory. PW3 testified that he hired out the suit motor vehicle to one John Njoroge for four days. The care hire agreement {Exhibit P2} shows that he vehicle was hired on June 6, 2020. The said John Njoroge paid for two days and would pay for the balance later. When payment was not forth coming, PW3 tracked down his car on the “6th day” and noted that it was parked at Wamba, when he confronted John Njoroge, he confessed that the vehicle had been impounded by the police and he would go to Wamba to check what the issue was. The following day the said John Njoroge called him and told him that the motor vehicle had been impounded with sandalwood.

33. The appellant in his submissions correctly observed that if the car hire agreement was dated June 6, 2020, and on the “6th day” PW3 tracked his car and by then it was already impounded and was at Wamba police station that naturally meant that by June 12, 2020 the suit motor vehicle had been impounded. The allegation of PW1 and PW2 that they impounded the suit motor vehicle on June 19, 2020 could therefore not be accurate.

34. To clarify the discrepancy, the appellant rightly submitted that it was incumbent upon the prosecution to call John Njoroge to clarify all issues regarding use of the suit motor vehicle and who was driving the said car, when intercepted while carrying sandal wood. That would have resolved a big issue whether indeed it was the appellant or a third party who was in possession of the said motor vehicle. This was not done and thus the chain of evidence was broken by this weak link. To make matters more complicated, PW5 the investigation’s officer did confirm that at one point during the investigations, he had John Njoroge in custody. That meant that he should have been charged alongside the appellant and/or would have been a prosecution witness to nail the appellant as the person he also gave out the car too. unfortunately, he did not testify nor did he even record his statement and the only presumption which this court can find is that his evidence would have been averse to the prosecutions case.

35. As observed in Narayanan Jaisankar v Republic{2006} Eklr“The test applicable in determining whether the failure to call a certain witness should lead to an adverse inference against the prosecution case, are well settled. It is when the prosecution adduces evidence that is insufficient to sustain a conviction and leaves out important evidence that an adverse inference can be made.”

36. Given the totality of the evidence adduced and the glaring gaps in the prosecution evidence, it is obvious that the appellants guilt was not proved beyond reasonable doubt. In Elizabeth Waithiegeni Gatimu v Republic{2015} Eklr it was observed that ;“The rule that the prosecution may obtain a criminal conviction only when the evidence proves the defendant’s guilt beyond reasonable doubt is basic to our law. It is necessary that guilt should not only be rational inference but also it should be the only rational inference that could be drawn from the evidence offered taking into the defence offered if any. If there is any reasonable possibility consistent with innocence, it is the duty of the court to find the defendant not guilty.”

37. Also as stated inPius Arap Maina v Republic {2013} Eklr“it is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution case raising material doubt must be interpreted in favour of the accused.

Disposition 38. I do find that there were serious evidential gaps in the prosecution’s case, and key witness (es) were not called to fill in the said evidentiary gaps. The trial magistrate also failed to consider the appellant defence offered, especially the evidence produced (KWS newsletter, where it was stated that the driver of the suit motor vehicle had escaped , after locking the suit motor vehicle wheels. I do agree with the submissions of both the appellant and the respondent that this conviction is not safe

39. I do therefore find that this appeal has merit. The judgment of Hon R.k Koech {SPM} dated March 3, 2021 in Maralal Cmcr No (so) No 176 of 2020 is hereby set aside and the conviction quashed.

40. The appellant is forthwith to be set free unless otherwise lawfully held.

41. The Deputy registrar to also provide a copy of this judgment to the appellants co accused (Alio Osman Ibrahim) as it had been indicted herein that he did not appeal, for information.

42 .Judgement accordingly.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 27TH DAY OF JUNE, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 27th day of June, 2023. In the presence of;Appellant………………………………….For O.D.P.P………………………………….Court Assistant