[2019] KEHC 1712 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL APPEAL NUMBER 6 OF 2019

JOSEPH KARANI OREGO.....................................................1ST APPELLANT

ANDREW YEGO KIPRUTO...................................................2ND APPELLANT

-VERSUS-

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

(Being an Appeal against both the conviction and the sentence of Chief Magistrate Hon. N. Makau, SRM delivered on the 18th day of January 2019 in Nakuru CM Criminal Case No. 272 of 2016 in Republic v Andrew Yego Kipruto and Joseph Karani Orego)

JUDGMENT

1. The two Appellants herein were jointly charged with two counts. Countone is the offence of being in possession of wildlife trophies contrary to section 95 of the wildlife conservation and management Act 2013. Particulars are that on 28th January 2016 at around 13000 hours at show ground junction in Nakuru town, Nakuru County, the appellants were found in possession of wildlife trophies of endangered species namely two pieces of elephant tusks weighing 2 kgs with a street value of kshs 500,000 without a permit.

2. Count two is the offence of dealing in wildlife trophies contrary to section 84(1) of the wildlife conservation and management Act 2013. The particulars are that on the 28th day of January 2016 at around 1300 hours at show ground junction, in Nakuru town within Nakuru County the accused persons were jointly found dealing in wildlife trophies of endangered species namely two pieces of elephant tusks weighing 2 kgs with a street value of kshs 500,000 without a permit.

3. In the lower court, 2nd Appellant was accused 1 and 1st appellant was accused 2. The prosecution availed 4 witnesses who included A1 and A2 who testified as DW4 and DW1 respectively. The two appellants were found guilty and convicted of the two counts. For count 1 they were fined for each count kshs 1,000,000 in default 5 years imprisonment; the sentences in the 2 counts to run concurrently.

4. Being aggrieved by conviction and sentence by the lower court, the appellants filed this appeal on the following grounds:-

i. That the trial magistrate erred in fact and law by failing to appreciate that the prosecution did not prove the two counts.

ii. That the trial magistrate erred in fact and law by failing to appreciate that no expert and valuation reports were not tendered in court.

iii. That the trial magistrate erred by imposing harsh sentence

iv. That the trial magistrate in giving option of fine in sentence and ordered that the sentence run concurrently.

v. That the trial magistrate erred in finding that the applicant communicated with PW1 without either calling evidence of safaricom or Airtel.

vi. That the trial magistrate erred in allowing evidence of PW4 PC Juma Wanyama who was not the investigating officer.

vii. That trial magistrate erred in find that the appellant was in possession of game trophy.

5. Parties herein filed written submissions which they highlighted on 19th September 2019. Ms Njoroge for 2nd appellant submitted that no evidence was adduced to show that the appellant was in possession of elephant tusks. That PW1 said he called a number, which he was given, and he could not remember at the time of testifying.

6. Plaintiff submitted that, appellant’s advocate submitted that no evidence has led to show that the appellant was in possession of elephant tusks contrary to Section 95 of Wildlife and Conservation Act or had any dealings with wildlife, she urged court to find that the sentence was harsh.

7. Mr Kemboi for 1st respondent submitted that the appellant was fined kshs 1million in default 5 years imprisonment in each count amounted to double jeopardy.

8. He further submitted that there was serious confusion on the face of record that on page 44 the trial magistrate said the sentences were to run concurrently and on page 45 she indicated sentences were to run consecutively; and that his client is at limbo as he does not know which sentence he was serving.

9. He urged the court to direct that sentences to run concurrently if the appeal fails; on count 2 he submitted that there no justification to find accused 1 dealing with trophies and there is therefore no basis for convicting his client/accused 1.

10. Ms Nyakira for state submitted that on error of sentence they are relying on pleadings and invited court to look at handwritten proceedings. She submitted that there was evidence that left no doubt appellants were guilty; that they were caught red-handed in possession, dealing with elephant tusks. She submitted that PW1 posed as a buyer of the trophies and they agreed that they would meet; that Accuse1 removed elephant tusks from his bag. That PW2 and PW3 were outside the hotel where the deal was taking place. She urged court to find that evidence adduced is sufficient; that there was no need to adduce evidence from safaricom or airtel as evidence adduced was sufficient; that both count of possession and dealing are provided separately in law and issue of double jeopardy does not therefore arise.

11. On sentence, she submitted wildlife conservation act provide minimum sentence of 1m fine in default 5 years. In a rejoinder Ms Njoroge for the 2nd appellant testified that oral evidence adduced in court was that of baby elephant teeth not tusks and that it was important for prosecution to call evidence from safaricom or airtel.

12. Mr Kemboi Accused 1 submitted that the appellant were charged under Section 95 of Wildlife Conservation Act and there was no need to charge under section 85; that they should have charged under section 92 in first count which provide for possession only.

ANALYSIS AND DETERMINATION

13. This being the first appellate court. I am expected to subject the entire evidence adduced before the trial court to fresh evaluation and analysis. This I do while bearing in mind that I never had the opportunity to hear the witnesses and observe their demeanour. The principles that apply in the first appellate court are set out in the case of OKENO VS REPUBLIC [1972] EA 32 where it was stated as follows:-

“first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. Republic [1957] EA 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] EA 424. )”

14. On perusal of the court record I find the following to be in issue

i. Whether it was proper to charge the appellants with the two counts.

ii. Whether sufficient evidence was adduced to prove offences charged.

iii. Whether the sentence is manifestly high and whether there is an error in sentencing.

Whether the charges were proper to charge the appellants with the two counts.

15. Section 84(1) provide that no person shall operate as a trophy dealer without a licence issued by the service-offence relating to dealing with trophies.

16. Section 95 of Wildlife Conservation And Management Act provide that any person who keeps or is found in possession of wildlife trophy or deals in wildlife trophy or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this act commits an offence and shall be liable upon conviction to fine of not less than one million or imprisonment for a term of not less than 5 years or to both such imprisonment and fine without a permit.

17. Section 84 (1) creates an offence of dealing in trophies without permit and 95 provides for penalty for dealing without penalty. I agree with counsels for appellant that the two appellants should have been charged with one count. They were found dealing with trophies without licence.

Was the offence of dealing with trophies proved?

18. There is no doubt that witnesses herein posed as buyers of the trophies and the appellants were found while negotiating to sell the trophies. There is clear evidence that the two appellants were dealing in trophies.

19. Despite the fact that the appellants were charged with two counts instead of one, there is no doubt they understood the offence alleged to have been committed and that the offence was proved by evidence adduced.

20. In respect to sentence, I note that the sentence to be imposed is coached in mandatory term. I note that the Section 95 of Wildlife Conservation and Management Act provide for minimum sentence to be imposed for dealing in trophies without permit. Whereas I agree that the discretion of the court should not be interfered with by imposing minimum sentence, the intention of the legislature in imposing minimum sentence should not be lost. I believe the intention is to protect endangered wildlife by imposition of deterrent and predictable sentences. For this reason, I uphold the sentence imposed for one count of dealing with wildlife trophies contrary to section 84(1) as read with section 95 of wildlife conservation and management Act.

21. FINAL ORDERS

1. Appeal partially succeed.

2. Conviction and sentence in the two counts is hereby set aside.

3. The two appellants are jointly convicted of offence of dealing in wildlife trophies contrary to Section 84(1) as read with Section 95 of the Wildlife Conservation and Management Act.

4. Each appellant is fined kshs 1 million in default 5 years imprisonment.

5. Sentence to run from the time of sentencing g by the trial court.

Judgment dated, signed and delivered at Nakuru this 4th day of December 2019

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RACHEL NGETICH

JUDGE

In the presence of:

Schola Jeniffer – Court Assistant

Kemboi Counsel for 2nd appellant

Nancy Njoroge Counsel for 1st appellant

Nyakira counsel for the state