[2017] KEHC 1462 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HIGH COURT CRIMINAL APPEAL NO. 135 OF 2017

In The High Court At Makueni Criminal Appeal No 52/2017 As Consolidated With 50/2016, 53/2016 And 51/2016

JULIUS MUTIE MUNUVE ………....….. 1ST APPELLANT

PATRICK MUTHANO MULI ……….….. 2ND APPELLANT

WILLY KIKUYU WERE …………….….. 3RD APPELLANT

JOSHUA MUSEE SYENGO …….…….. 4TH APPELLANT

-VERSUS-

REPUBLIC ………………………………. PROSECUTION

JUDGEMENT

INTRODUCTION

1. The Appellants were charged with offences of:

2. COUNT I: BEING IN POSSESSION OF WILDLIFE TROPHY CONTRARY TO SECTION 95 AS READ WITH SECTION 92 OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, 2013.

3. On the 11th day of May 2015 at around 1100hrsat Triangle areas of Tsavo East National Park within Makueni County, jointly were found in possession of a wildlife trophy namely two pieces of ivory weighing approximately 17. 5kgs with a street value of 1. 7M without a permit.

4. COUNT II: CONVEYING ARROWS INTO A PROTECTED AREA CONTRARY TO SECTION 102(1)(f) OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, 2013.

5. On the 11th day of May 2015 at around 1100hrs at Triangle area of Tsavo East National Parkwithin Makueni County, jointly conveyed sixteen (16) of poison arrows into the said protected areas.

6. COUNT III: ENTERING A NATIONAL PARK CONTRARY TO SECTION 102(1) (a) OF THE WILDLIFE CONSERVATION AND MANAGEMENT ACT, 2013.

7. On the 11th day of May 2015 at around 1100hrs at Triangle area of Tsavo East National Park within Makueni County, jointly entered the said National Park without authority.

8. They pleaded not guilty and the matter was heard to full trial. They were convicted and sentenced each in count I a fine of Kshs.2 million and in default 6 years imprisonment.

9. In count II a fine of Kshs.200, 000/= and in default two (2) yearsimprisonment and in count III a fine of Kshs.200, 000/= and in default two (2) years imprisonment.

10. The sentence was to run consecutively.

11. Being aggrieved by the aforesaid decision, they lodged each an appeal and set out grounds which commonly raised the following complaints.

The case was not proved beyond reasonable doubt,

The court ignored their defenses,

Sentences were excessive.

12. Before the matters were heard, the Appellants filed amended grounds which commonly complained of:-

That the charges were defective.

That the alleged ivory recovered were not tested to confirm whether they were genuine.

That it was not established the alleged poison on arrows could endanger lives of conserved animal species.

That the case was not proved beyond reasonable doubt.

That the defence of alibi was rejected erroneously.

13. The parties agreed to canvass the appeals via written submissions though only Appellants filed and served the same.

14. The Respondent opted to tender oral submissions.

15. This being the first Appellate court, it is enjoined to look at the evidence before the trial court afresh, re-evaluate and examine the same and reach its own conclusion whether or not to uphold the conviction of the Appellant.

16. In reaching its decision, the reaching its decision this court has to bear in mind the reaching its decision, the court has bear in mind the fact that it did not have an opportunity of seeing the witnesses as they testified and therefore is not expected to make any findings as to the demeanor of the said witnesses.

17. Finally, this court is expected and mandated to consider the grounds of appeal put forward by the Appellant in reaching its judgment. SeeKINYANJUI –VS- R (2004) 2KLR P.364. See alsoOKENO –VS- REPUBLIC.

18. The prosecution called three witnesses.

19. PW1 was Simon Ngige Mbogo,a KWS ranger at Tsavo East National Park. He testified that on 11/03/2015, he was on patrol with his colleagues at Triangle area of Tsavo East National Parkwhen they came across a place used by poachers as a harbor in triangle area within the park.

20. They found a fire place, cut grass and food stuffs. They tracked footprints which led to another harbor near River Athi. He said that they found four accused asleep and surrounded the place. They later arrested the four accused.

21. They searched the place and recovered the poisoned arrows, four bows and two pieces of ivory which were buried nearby. He said that they took the accused to the KWS camp and later to Mtito Andei Police Station.

22. He identified 13 arrows, 4 arrow heads and two ivory tusks in court. He said that he took the GPS co-ordinates of the area of arrest and gave it as 37m – 042 8868/UTM96895333

23. PW2 was Kenya Wildlife Service (KWS) ranger Douglas Theuri. He testified that on 11/05/2015, he was on patrol with his colleagues at Triangle area of Tsavo East National Parkwhen they came across a harbor. They followed footprints which led them towards Athi River where they found another harbor. They surrounded the harbor, identified themselves and thereafter arrested the four accused persons who were in the harbor.

24. They later searched the scene and recovered bows and arrows and two elephant tusks.

25. PW3 was Pc Charles Lengandu from Mtito Andei police station. He testified that on 11/05/2015, at 9. 00 p.m.KWS rangers took the four accused to the police station with information that the four accused persons were arrested at Tsavo East National Park with the two ivory tusks, bows and arrows.PW3 visited the scene and established that it was two kilometers into the park from the gate.

26. Upon being put on their defence, each accused opted to make an unsworn statement.

27. In his unsworn statement, the first accused said that on 10/05/2015, he was working as a casual laborer. At 9. 00 p.m., he went home and slept and at 3. 00 a.m., someone knocked at his door. Upon confirming that the men who knocked at his door were police officers, he opened the door and the “police officers” arrested him and put him into their vehicle.

28. He said that the “police” took him to many places and in the processes forced him to change vehicles before taking him to their camp. He said that “police” beat him after he said that he did not know Musyoka. The “police” took him to Komboyo and later to Mtito Andei Police station.

29. The second accused, in his unsworn statement, said that on 10/05/2015 he woke up and started looking for work at the market. He went to sleep at 7. 00 p.m.At4. 00 a.m., people broke into his house. They turned out to be policemen who arrested him after he said that he did not have meat. He said that one “policeman” beat him up while the other one photographed him. He said that he was forced into a vehicle which took him to the wilderness alongside other people. They later arrived at a camp.

30. The third accused in his unsworn statement said that on 10/05/2015 he went to Mvakila town. He later left the town, went home, prepared supper, ate and slept. At 4. 00 a.m. three police officers broke into his house and arrested him. He said that they later picked other people on the way and they were taken to Mtito Andei Police Station where he was forced to offload elephant tusks from the police vehicle.

31. In his unsworn statement, the fourth accused said that on 10/05/2015, he cooked supper and slept. At 4. 30 a.m., someone knocked at his door. Before he could open the door was kicked open and he was arrested by “police officers” who took him to a camp. He was later taken to Komboyo and finally to Mtito Andei Police Station.

THE APPELLANTS SUBMISSIONS

32. They submitted that as a matter of fairness, a person charged with a criminal offence is entitled to know the crime that he is alleged to have committed, so as he can either prepare or present appropriate defense.

33. The court hearing the charge must also know what is alleged so as to determine the relevant evidence, consider possible defense and determine the punishment or conviction if any.

34. In the present case, charges of being in possession of wildlife trophy contrary to Section 95 as read with Section 92 of the wildlife Conservation and Management Act 2013, were lodged against them,but upon the judgment and subsequent conviction they were sentenced on the offence of being in possession of wildlife trophy contrary to section 95 alone while overlooking the other section of the law that had been incorporated in the charge sheet vide judgement page 38 line 19.

35. The law of the framing of the charges is clearly clarified in various sections of the law e.g. Section 134and137of theCriminal Procedure Code respectively.

36. Another point for the court to look into is the purported ivory tusks that were produced before the Court as exhibits.

37. They were never examined or rather tested to confirm whether they were counterfeit or genuine. It is therefore appellants contention that the Exhibits MF1- 1(a) and (b) would have been taken to the National Museum of Kenya for the same to be verified and confirmed by the government experts (archeologists) and report of the findings by the experts be compiled and be presented before the Court for production as exhibit so as to confirm if the same were genuine.

38. And because this was never done, one may wonder on how the subordinate court found and believed that the two were ivory tusks? Moreover, there was no photographic evidence that was tendered before the Court to confirm if they were really arrested and the same recovered in their possession.

39. It is submitted that there was no evidence adduced before the court to confirm the allegations on whether arrows were with poison or not. The same would have been taken to the government laboratory for analysis and the same be confirmed to the Court by the expert that the same were poison or not.

40. It is further submitted that the prosecution witnesses were at variance from one another on the issue on how the recovery was made. The subject of the case here was the recovery of the tusk; PW1 alleged that he had found and recovered the tusk buried nearby while PW2 stated that the tusks were covered with the food stuffs in order to disguise them.

41. On page 9 line 12and also page 11 lines 5-6. It was alleged that 16 poisoned arrows and 4 bows were recovered but surprisingly the prosecution only produced 13 arrows as exhibits but 4 bows and 3 arrows were never produced.

42. Where did these bows and arrows disappear to if they were really recovered? The law is very clear on any item that has been recovered, there must be an inventory form that must be signed and countersigned by all parties concerned and if possible there shall also be an independent witnesses/party to sign the same.

43. In this particular case, this was never done, there was no inventory prepared and put across as evidence to prove to the court that the items were recovered from the Appellants of which they had signed and countersigned by the officers as is stipulated by the rule of law.

BURDEN OF PROOF

It is submitted that, the onus of proof squarely lies on the shoulders of the prosecution side.

44. Having no legal mind, the trial court took the advantage of weak defense and convicted appellants without considering that they were lay men who had no any idea on matters concerning the law and court. Had the trial been alive to its findings, it would have noticed that:-

There was no inventory form that was put across as evidence to prove the recovery of the items,

The purported ivory tusks were never taken to the National Museum for analysis and,

The alleged poison was never tested at the government laboratories to confirm whether it could have endangered the lives of conserved animal species.

SUBMISSIONS BY THE RESPONDENTS

45. The Appellants were found in the place where the arrows and the elephant tasks were found. They were arrested and taken to the MutitoAndei Police Station.

46. The trial court found PW1 and PW2 were trustworthy and credible after evaluation and their testimony thus the Appellants were convicted and sentenced.

47. The arrows were a danger to the animals. There was no need to test the tasks. In any event the issue of tasks genuineness and test of poison did not arise during cross examination.

48. The Appellant gave unsworn statement. They never raised same issues.

49. The defenses of alibiwere considered. They were found in the park. The case was proved beyond reasonable doubt.

50. The court considered issue of defect of the charges and resolved the same as per the law provided. Investigation was credible and proper.

51. The evidence on record supported verdict by the trial court.

ISSUES

52. After going through the evidence on record and the submissions by the parties, I find the issues were:-

Whether charges were defective?

Whether case was proved beyond reasonable doubt?

Whether defences of alibi were considered?

ANALYSIS

53. The trial court’s view was that, PW1 and PW2truthful witness and their evidence was not shaken at all on cross examination. They were emphatic that they found the four accused sleeping in a habour in Tsavo East National Park. They said that the accused had buried elephant tusks under foodstuffs to disguise them and that the accused had arrows which were produced in evidence. The accused had no permission to be in the park.

54. The trial court considered the accused’s unsworn defence. The statements are to the effect that the accused were arrested in their respective homes but not in the park. These statements cannot be believed because their truthfulness was not tested under cross examination.

55. Besides as earlier said, PW1 and PW2 struck him as truthful witness. He therefore found that the prosecution proved their case beyond reasonable doubt that the four accused were found at Triangle area within Tsavo East National Park and that they had conveyed arrows into the said national park. It has also been proved that they had in their possession arrows and two ivory tusks which they had hidden in their habour.

56. The trial court also addressed the issue of the legal status of the charge. He addressed same as follows. It is a legal challenge that the HON. MARY KASANGO J. GRAPPLED WITH IN MUTISYA KIEMA –VS- REPUBLIC (2014) eKLR.

57. It concerns the legality of charges brought under section 92 as read with section 95 of the wildlife conservation and management Act, 2013.

58. The judge addressed the matter as follows:

“However, it would pose a great legal challenge to the court when a person is charged under both Section 92 and 95 of the Act because the two sections provide different penalties for the respective offences under them while section 95 provides for a fine of not less than one million shillings or imprisonment for a term of not less than five years or both, section 92provides for a fine of not less than twenty million shillings or imprisonment for life or to both.

It would therefore be uncertain which sentence to pass in a case where a person is charged with offences under both sections.

However, they only made provision for punishment in section 92 but omitted to create the offence itself. Perhaps it is time to address the glaring Lacuna as was observed BY MBOGHOLI, J IN THE ZANG CHUSENG (supra) which observation I reiterate herein.

“The Wildlife Conservation and Management Act is a step in the right direction; but the act requires some polishing to ensure the intended purpose is achieved.”

59. The judge after this speech exercised her discretion to convict for the lesser offence under Section 179 of the Criminal Procedure Code. The trial therefore concluded that, in respect of Court I, he found that the charge as drawn was ambiguous as it was not clear to court which punishment to apply between Section 92 and 95.

60. He however exercised his discretion under Section 179 of the Criminal Procedure Actand convicted each accused of the lesser offence of being found in possession of a wildlife trophy contrary to Section 95 of the Wildlife Conservation and Management Act.

61. The court agrees with trial court and finds that the finding was justified. As said earlier, Count II of conveying arrows into a protected area had been proven. 13 arrows were produced in court and the accused had not shown how they legally took them in the park. On count III the court found the Appellants were also unlawfully in the park. This court agrees with trial court as there was evidence.

62. On sentence, section 95 of the Act provided the less sentence of a fine of not less than Kshs. 1million or sentence to serve a minimum of 5 years imprisonment. The appellants being first offenders ought to have been awarded a fine of Kshs. 1million and in default a sentence of 5 years imprisonment. The other sentences were the minimum provided by law therefore to remain as awarded.

63. The sentences issue as to whether to be concurrent or consecutively, the trite law is captured by the sentencing policy guidelines to wit;

“Where the offences emanate from a single transaction, the sentences should run concurrently. However where the offences are committed in the course of multiple transactions and where there are multiple victims, the sentences should run consecutively. The discretion to impose concurrent or consecutive sentences lies in the court. In the case of imprisonment in default of payment of a fine, the sentence cannot run concurrently with a previous sentence”

64. The court therefore makes the following orders;

I. The court thus finds no merit in the grounds raised and dismisses the appeal, affirms conviction.

II. On sentences, in respect of count 1, the sentence is altered to a fine of Kshs. 1million each and in default the appellants to serve a term of 5 years from the date of arrest the 11th May 2015.

III. In respects of counts 2 and 3 the sentences to remain the same but also to run from the date of arrest the 11th May 2015.

IV. Thus all sentences to run concurrently.

SIGNED, DATED AND DELIVERED THIS 2ND DAY OF OCTOBER, 2017.

C. KARIUKI

JUDGE

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