Kahindi v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO E101 OF 2025 NGARI CHARO KAHINDI………………………………………………………………………. APPELLANT VERSUS REPUBLIC …………………………………………………………………………………………RESPONDENT **JUDGMENT** ***(Being an Appeal against the Judgment of Hon. S.M Musili RM dated 13th August, 2025 in Mariakani Principal Magistrate’s Court Criminal Case No E212 of 2023)*** 1. The appellant was charged with two counts. 2. The first count is of dealing with wildlife trophy of endangered species contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars were that on 25th day of July, 2023 at around 1000hrs at Kwachikololo area, Kaloleni Sub County within Kilifi County was found dealing with wildlife trophy of endangered species namely four (4) pieces of elephant tusks weighing 4kgs concealed in a stapled manila sack, put in whitish sack valued at Kshs. 400,000/= without permit. 3. The second count is of being in possession of wildlife trophy of endangered species contrary to Section 92(4) of Wildlife Conservation and Management Act, 2013. The particulars were that on 25th July, 2023 at around 1000hrs at Kwachikololo area, Kaloleni Sub County within Kilifi County was found in possession of wildlife trophies of endangered species namely four (4) pieces of elephant tusks weighing 4kgs. 4. The appellant pleaded not guilty to the charges when he was arraigned before the trial court. Five witnesses testified before the trial court. The appellant upon being placed on his defence, he gave a sworn statement. The trial court after considering the evidence adduced by the prosecution and the defence case, found the appellant guilty of the charges in both counts and accordingly convicted him. Subsequently the appellant was sentenced to serve seven years in respect of count one and to pay a fine of Kshs. 3 million in default to serve five years imprisonment in respect of count two. 5. The appellant aggrieved by the conviction and sentence preferred this appeal to the High Court raising the following grounds: 6. *That the learned trial magistrate erred in law and fact by finding that the prosecution had proved their case beyond reasonable doubt proceeding to convict the appellant.* 7. *That the learned trial magistrate erred in law and fact by finding that the appellant was found in possession of elephant tusk by relying on an inventory despite the admission that the said inventory was never read and explained to the appellant.* 8. *That the learned trial magistrate erred in law and fact by finding that the appellant was dealing with an elephant tusk despite the material contradictions and inconsistencies of the prosecution witnesses.* 9. *That the learned trial magistrate erred in law and fact by disregarding the appellant defence and testimony that rebutted the allegation by and assertion raised by the prosecution witnesses.* 10. *That the learned trial magistrate erred in law and fact in meting and or issuing the sentence that was excessively harsh without considering the appellant mitigation as required by law.* 11. The appellant urged the court to allow the appeal and the conviction and sentence be quashed and or set aside. 12. The prosecution case was that PW5 received intelligent information on 25th July, 2023 that there was a person in possession of wildlife trophy at Chikololo area. She called PW1 and PW4 and they met at Marine Park offices and planned an operation. 13. PW1 and PW5 were to pose as potential buyers while PW4 and Amin Koi were to back up PW1 and PW5 for purposes of arresting the suspect. 14. They proceeded to Chikololo with unmarked vehicles where PW4 and Amin Koi alighted. PW1 and PW5 who posed as buyers remained in the vehicle. After a short while a gentleman carrying a *‘gunia’* came and entered the vehicle. PW5 asked him to show them the elephant tusks he was selling. He opened the sack and there were elephant tusks inside. As per the negotiation the suspect was selling the same at Kshs. 10,000/- per kg. At that point the appellant was arrested and taken to Mariakani police station where an inventory was prepared. The exhibits were also weighed and a weighing certificate was prepared. A chain of custody of the exhibit was prepared. 15. When cross-examined PW4 confirmed that the appellant signed the inventory voluntarily. He also confirmed that the photograph of the recovered items was taken at Mariakani police station. 16. PW1 and PW4 confirmed that they accompanied PW5 upon receipt of the intelligent information and the appellant was arrested while in possession of the elephant tusks. 17. PW2 was called to the scene and took photographs of the recovered elephant tusks. He confirmed that the photographs were taken in presence of the appellant. 18. PW3 examined the recovered items and prepared a report. His finding was that the recovered items were elephant tusks. 19. PW4 told the court that upon interrogating the appellant he did not have permit prompting his arrest and subsequent arraignment in court for the offence of dealing and being in possession of wildlife trophies without permit. 20. The appellant in his defence testified that on the material date he was on his way home when a vehicle stopped. He went to where the vehicle was and the occupants of the vehicle gave him a lift. 21. He told the trial court that when he got to the stage where he was to alight the driver denied him exit. When he complained he was accused of being a known criminal. He was forced to sign a piece of paper at gun point. He denied knowing what he was signing. 22. He said he saw a sack at Mariakani police station which he denied belonged to him. He denied ever having been involved in the trade of elephant tusks and disowned the items recovered in the sack. 23. Simply, the appellant alleged that the sack was planted on him at the police station and the accusations that he was found with the said items were false. 24. The appellant in his submissions dwelt on the issue of sentence only. The assumption is that the appellant abandoned the grounds of appeal raised in the petition of the appeal regarding the conviction. 25. His first argument is that the trial court erred in sentencing him for both counts. The appellant relied on several cases among them the decisions in ***Nyamai Musyoka vs Republic (2012) e KLR*** and ***Moses Alusa Imbitsa vs Republic (2016) e KLR.*** The assumption by the appellant in his submissions is that he was charged with a main count and an alternative charge hence he ought not to have been sentenced on both. 26. His further submission is that the sentence was excessive contrary to the sentence provide for under the provisions of the Wildlife Conservation and Management Act, 2013. In particular the appellant argued that the sentence provided for under Section 92(4) of the Act does not necessarily imply that the court must impose maximum sentence as opposed to minimum sentence. The appellant relied on several cases among them the decisions in the case of ***Swabir Bukhet Labhed vs Republic Cr. Appeal No. 52 of 2018*** where the court observed that prefix ‘shall be liable to’ connotes that the sentence provide for is not mandatory sentence but rather discretionary sentence. 27. The respondent in opposition to the appeal submitted that the prosecution proved the case beyond reasonable doubt as required. 28. On the challenge to the inventory, it was submitted that appellant signed the same voluntarily without coercion as alleged in the grounds of appeal. 29. The respondent further argued that there were no contradictions and inconsistencies in the prosecution case as alleged. It is argued that the evidence adduced against the appellant was cogent, consistent and corroborated. 30. Further the respondent argued that the defence raised by the appellant did not rebut the prosecution case. 31. Regarding the sentence, the respondent argued that the same was lawful and very lenient in the circumstances of the case. 32. This being a first appeal, this court is under duty to re-evaluate and reconsider the evidence adduced before the trial court and make its own conclusions. This must however be done keeping in mind that it did not have the advantage of observing he demeanor of the witnesses and hearing their evidence unlike the trial court. This principle was laid down in numerous decisions of the Court of Appeal among them the case of ***Kiilu & Another vs Republic (2005) 1 KLR*** where the Court of Appeal stated as follows: 33. ***An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.*** 34. ***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 finding and 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.*** 35. Further to the foregoing the legal burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save in few exceptional circumstances expressly provided by the law. This position has been restated in numerous authorities. For instance, in the case of ***Stephen Nguli Mulili vs Republic (2014) e KLR*** the court emphasized the prosecution duty in criminal case and stated: ***“…It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan Position.”*** 1. In this case the appellant was charged and convicted of the offence of dealing with wildlife trophy contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013 in the first count and being in possession of wildlife trophy contrary to Section 92(4) of the same Act in count two. 2. The charges the appellant faced are based on the provisions of Section 92 of the Wildlife Conservation and Management Act, 2013 which provides as follows: ***“92(2) A person who kills or injures, tortures or molest, or attempt to kill or injure, a critically endangered, or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment of not less than five years.*** ***(2) A person who, without permit or exemption issued under thus Act, deals in a wildlife trophy, or any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment for not less than seven years.*** ***(3) Any person who, without permit or exemption under this Act, deals in live wildlife species of any critically endangered or endangered species as specified in the Sixth Schedule or listed in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than three years.*** ***(4) Any person who without permit or exemption issued under this Act, is in possession of any love species or trophy of any critically endangered or endangered species specified under the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than five million or term of imprisonment of not less that five years or both fine and imprisonment.*** ***(5) Any person who without permit or exemption issued under this Act, manufactures an item from a trophy of critically endangered or endangered species specified under the Sixth Schedule or listed under CITES Appendix I without a permit or exemption issued under this Act, commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings or up to life imprisonment or both fine and imprisonment.”*** 31. The Sixth Schedule of the Act lists several national critically endangered, vulnerable, nearly threatened and protected species. Among the listed endangered species is *loxodonta Africana* which is commonly the African elephant. In this case evidence lead by the prosecution is that the appellant was found in possession of elephant tusks. Elephant is one of the animals listed under the Sixth Schedule as critically endangered species. As such the prosecution satisfied the court on the requirement under Section 92 of the Act. 32. The second issue which the prosecution ought to have satisfied is whether the alleged recovered items were wildlife trophy. PW3 testified before the trial court that he examined the four pieces of tusks expected to be of elephant. He confirmed that the same were actually elephant tusks. 33. Trophy is defined under Section 3 of the Act as follows: ***“Trophy” includes any bone, claw, egg, feather, hair, hoof, tooth or tusk of an animal, and for any species of plant, any bark, branch, leaf, log, sap or extract and includes any other durable portion whatsoever of that animal or plant whether processed, added to or changed by the work of man or not, which is recognizable as such.”*** 33. From the foregoing it is clear that what is alleged to have been recovered from the appellant was animal trophy as defined under Section 3 of the Act. The trial court therefore correctly made a finding that the items recovered were trophy as provided for under Section 92(2) of the Wildlife Conservation and Management Act, 2013. 34. The next issue for determination is whether the prosecution proved before the trial court whether the circumstances under which the appellant is alleged to have been found with the tusks amounted to dealing. Under Section 3 of the Act, to deal means: ***a) To sell, purchase, distribute, barter, give, receive, administer, supply or otherwise in any manner deal with a trophy or live species;*** ***b) To cut, carve, polish, preserve, mount or otherwise prepare a trophy or live species;*** ***c) To transport or convey a trophy or live species;*** ***d) to be in possession of any trophy or live species with intent to supply to another; or*** ***e) To do or offer to any act preparatory to, in furtherance of, or for the purposes of, an act specified above.*** 35. From the evidence adduced before the trial court it was not rebutted that PW5 received intelligent information that there was someone in possession of the elephant tusk which he intended to sell. PW1, PW4 and PW5 posed as buyers. In the process the appellant was arrested. 36. The appellant in his defence alleged that he was looking for a lift when the vehicle in which PW1, PW4 and PW5 were in pulled off the road and picked him. He alleged that the items were planted on him. This piece of the appellant’s defence looked at against the prosecution case that PW5 was acting on intelligent information has not rebutted the prosecution case. I do not buy the appellant’s defence that the items were planted on him. The prosecution case was consistent that the appellant was selling the tusks. 37. The prosecution was consistent that PW5 received intelligent information and acting on the same the appellant was arrested and the tusks were recovered from him. He was attempting to sell the same. I am satisfied that the aspect of dealing and being in possession of wildlife trophy was proved as required and the trial court cannot be faulted. 38. Regarding whether the appellant had permit as required under the Act, the trial court rightly found that the appellant failed to produce anything to show that he was permitted to deal or possesses the elephant tusks. 39. The appellant mainly challenged the sentence. As indicated earlier he was of the presumption that the second count was an alternative charge, From the record it is clear that the appellant was charged with two counts and not a main charge and an alternative. The trial court rightly convicted him on the two counts and sentenced him according to the penal provisions of the Wildlife Conservation and Management Act. I cannot fault the trial court on the conviction and sentence. 40. The upshot is that the appeal lacks merit and the same is dismissed. **Dated, signed and delivered virtually this 14th day of September, 2026.** **Francis Kyambia** **Judge**