https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11898

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CRIMINAL APPEAL NO. E040 OF 2025** **KASOO MUKENGA…………………...…………..………..APPELLANT** **-VERSUS-** **REPUBLIC…….……………………………………………RESPONDENT** ***(Being an appeal from the Judgement delivered by Hon. Y.A Shikanda (SPM) on 14th May, 2025 in Makindu Senior Principal Magistrates Court Criminal case No. E586 of 2023).*** **JUDGMENT** 1. The Appellant, Kasoo Mukenga, was convicted and sentenced for the offence of dealing in wildlife Trophy without a permit contrary to section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars of the offence were that on the 28th June, 2023 at around 2140hours at Subai area in Kibwezi Sub-County within Makueni County, he, together with another not before Court, were found dealing in Wildlife trophy namely, 4 pieces of Elephant tusks weighing approximately 33. 5 Kgs with street value of Kshs,33.5million, without authority from the Director General of Kenya Wildlife Service. 2. The Appellant pleaded not guilty to the charges against him and the matter proceeded for trial. Upon conclusion of the trial, he was found guilty and sentenced to serve 10 years imprisonment. 3. Dissatisfied with that decision, he lodged this Appeal vide Petition of Appeal dated 26th June, 2025, based on the following grounds;- 4. *That the trial Magistrate erred both in law and in fact by relying on inadmissible hearsay testimony by the witnesses who actually testified to the prejudice of the Appellant* 5. *That the prosecution failed to call crucial witnesses especially the informer thus rendering the conviction unsafe* 6. *That the learned trial magistrate failed to test the evidence of the prosecution which was riddled with discrepancies and inconsistencies and lacked probative values to warrant a conviction.* 7. *That the trial Magistrate erred in law and in fact by discounting and not considering the defence thus giving a harsh and excessive sentence in the circumstance of this case.* 8. *The trial magistrate erred in law and in fact by failing to find the prosecution ought to prove its case beyond any reasonable doubt as required by law and not beyond any shadow of doubt.* 9. *The trial Magistrate erred in law and in fact by shifting the burden of proof to the Appellant, in that it is trite law that an Appellant person should only be convicted on the strength pf the prosecution evidence and not on the weakness of his defence* 10. *That the trial magistrate erred in law and in fact as he deliberately overlooked that the witnesses gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross-examination of the defence counsel which was biased and in favour of the prosecution.* 11. The Appellant urged this Court to quash the conviction, set aside the sentence and set him free in the interest of justice. **Evidence before the trial Court** 1. The prosecution called four (4) witnesses in support of its case. **PW1: John Kamau (KWS No. 9585),** a Kenya Wildlife Service (KWS) ranger stationed at Chyulu Hills, testified that on 28th June, 2023, he received information from his officer-in-charge, Corporal Bernard, regarding a suspect in possession of elephant tusks in Subati. PW1, alongside Ranger Kimanthi and Sergeant Bernard Kinagulan, mounted an ambush in an unmarked vehicle. Corporal Bernard posed as an interested buyer while communicating with the suspect by phone. The suspect directed the team to his homestead. Upon arrival at the compound, the officers encountered two suspects. The suspects informed them that the elephant tusks were hidden by the gate. One of the suspects escaped, but officers successfully recovered four elephant tusks on the side of the gate and arrested the Appellant, whom PW1 positively identified in court as Kasoo Mukenga. The Appellant and the four recovered tusks (marked PMFI 1 (a), (b), (c), and (d)) were transported to Mtito Andei Police Station. 2. Upon cross-examination, PW1 affirmed that the person who was with the Appellant at the scene managed to escape and that the Appellant was arrested directly at his homestead. PW1 further noted that this was not the first time the Appellant was being apprehended in possession of wildlife trophies. 3. **PW2: Esther Nguta**, a Scientist & Researcher at National Museums of Kenya, testified as an expert witness, stating that she holds a Master of Science degree in Biology of Conservation from the University of Nairobi. She testified that on 18th July, 2023, she received four exhibit specimens marked KM-1 to KM-4 for species identification. Upon detailed comparative examination against reference specimens at the National Museum, she verified that all four items were genuine elephant ivory tusks. She noted the presence of Schreger lines (diamond-shaped granules visible under 10x magnification) and lateral cracking, which are diagnostic characteristics unique to elephant ivory. She prepared a formal laboratory report dated 18th July, 2023 (produced as Prosecution Exhibit 2) along with an Exhibit Memo (produced as Prosecution Exhibit 3). PW2 identified the four tusks presented in court. 4. **PW3- Corporal Rashid Lelanguram (KWS No. 9634),** is a KWS officer currently stationed at Kamboyo Park Headquarters, Tsavo West National Park, but previously attached to the Kathekakeai base in Chyulu Hills. He told the trial Court that on 28th June, 2023, at around 5:00 p.m., an intelligence officer alerted him by phone that they were tracking suspects believed to be carrying elephant tusks and requested operational support. PW3 mobilized Rangers John Kamau, Julius Kinuthia, and Shadrack. The operational team proceeded in a taxi to Kambu area, where they waited for roughly two hours. At around 7:00 p.m., the intelligence officer informed them that the suspects had changed locations, directing the team toward Subatu area. Around 9:00 p.m., near Subatu Shopping Centre, the team was flagged down by two individuals who asked if they were the buyers. The officers maintained their cover as buyers. Kasoo Mukenga led PW3 and Ranger Kamau towards the gate of a nearby compound and pointed out a package hidden inside behind the gate. Using moonlight and a mobile phone torch, PW3 inspected the package and identified four unwrapped elephant tusks. 5. Upon PW3 revealing their identity as KWS officers, one suspect fled into the night, while Kasoo Mukenga was apprehended. The tusks were placed in the vehicle's boot and taken to Tsavo West Park Headquarters, where Sergeant Charles Karanja weighed them at the armory, recording a total weight of 33.5 kg. The suspect and tusks were subsequently booked at Mtito Andei Police Station. PW3 identified the tusks in court (PMFI 1 (a)–(d)). 6. On cross examination, he clarified that neither the village elder nor the local chief was present during the operation. Having served in KWS for 13 years, PW3 disputed the Appellant’s assertion that both original suspects escaped and that officers merely grabbed him afterward. 7. Upon inquiry by the court, PW3 hesitantly recalled signing an inventory document relating to the recovery of the exhibits. 8. **PW4: Sergeant Isdory Mwandau (KWS No. 8785)**, an investigator with the KWS Investigations Department at Tsavo West National Park, told the trial court that on 29th June, 2023, at approximately 6:00 a.m., PW3 briefed him regarding the arrest of a suspect dealing in four elephant tusks. PW4 took witness statements from arresting officers Cpl. Bernard and Ranger John Kamau, and interrogated the suspect, who identified himself as Kasoo Mukenga from Suboni. PW4 opened the official police file for the charge of dealing in wildlife trophies. He received the four tusks from PW3 and re-weighed them in the presence of the Appellant and the arresting officers, confirming a total weight of 33.5 kg, though he did not prepare a separate weighing certificate. 9. On the following day, PW4 visited the recovery scene at the compound gate surrounded by trees, though he did not ascertain the registered owner of the homestead. PW4 identified the Appellant in court and formally produced the four elephant tusks into evidence as Prosecution Exhibit 1 (a), (b), (c), and (d). 10. On cross-examination, he stated that he had worked with KWS for 17 years and reiterated that the weighing of the tusks was conducted directly in the Appellant 's presence. 11. In his defence, DW1- **Kasoo Mukenga (Appellant)** gave his sworn testimony and stated that he is a farmer residing in Kambu, Makueni County. He stated that on 28th June, 2023, he visited Kambu Centre to purchase seeds and fertilizer, returning home via a motorcycle (boda boda) at around 8:00 p.m. After handing over groceries to his wife for dinner preparation, he stepped out toward the market to greet a friend. Upon returning home, he encountered two unfamiliar individuals standing at his gate. When he asked what they wanted, they offered no reply, apprehended him, and forced him into a motor vehicle. Inside the vehicle, he noticed some elephant tusks. He was taken to Mtito-Andei Police Station where his mobile phone was confiscated and never returned. 12. On cross-examination, he admitted that he did not have any witnesses to support his account. He maintained that he was not caught in actual possession of the tusks and was alone at the time of his arrest, while acknowledging that there was no independent person available to verify that he was alone. **Analysis and Determination** 1. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal together with the evidence contained therein. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyze the entire evidence that was placed before the trial Court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage as was stated by the Court of Appeal in ***Okeno v Republic [1972] EA 32,*** where the Court observed as follows:- ***“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (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 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 had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”*** 1. In this case, the Appellant was charged with the offence of dealing in wildlife trophies without a permit, contrary to Section 92(2) of the Wildlife Conservation and management Act, which provides that;- ***“A person who, without permit or exemption issued under this Act, deals in a wildlife trophy, of 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 of not less than seven years.”*** 1. It follows that, for the prosecution to secure a conviction under this provision, it was required to prove, first, that the Appellant dealt in wildlife trophy; secondly, that the trophy was of a critically endangered or endangered species specified in the Sixth Schedule or listed under CITES Appendix I; and, thirdly, that the dealing was undertaken without a permit or exemption issued under the Act. 2. On the first issue whether the prosecution established that the Appellant was dealing in the four elephant tusks marked as Prosecution Exhibit 1-4, the evidence of PW1 and PW3 was that they received information from their intelligence officer concerning persons suspected to be in possession of elephant tusks and mounted an operation in which some of the officers posed as prospective buyers. PW1 testified that the suspect communicated with the officers and directed them to his homestead. Upon arrival, two suspects were encountered, one of whom escaped. Four elephant tusks were thereafter recovered from behind the gate of the Appellant’s house and the Appellant was arrested at the scene. 3. PW3 gave a substantially similar account. He testified that the officers, while posing as buyers, were approached by two persons who inquired whether they were the buyers. According to PW3, the Appellant led him and Ranger Kamau to the gate of a compound and pointed out a package concealed behind the gate. Upon inspection, the package was found to contain four elephant tusks. When the officers disclosed their identity, the other suspect fled while the Appellant was arrested. 4. In his defence, the Appellant stated that he returned home at about 8.00 p.m. and later went out to greet a friend. Upon his return, he found two strangers at his gate who arrested him and forcibly placed him in a motor vehicle. It was while in the vehicle that he first saw the elephant tusks. He denied having been in possession of the tusks or having any connection with them. In cross-examination, he maintained that he was not found in actual possession of the trophies. 5. Having considered the evidence, I am of the view that the prosecution evidence established a sufficient nexus between the Appellant and the recovered tusks. Of particular significance is the evidence of PW3 that it was the Appellant who led the officers to the package concealed behind the gate that contained the Elephant Tusks. Indeed, the Appellant's presence at the scene, the recovery of the tusks from the vicinity of his homestead and the flight of the other suspect upon the officers revealing their identity, affirms that indeed the Appellant was involved with the said Elephant Ivory tusks. 6. On that basis and upon this court’s independent analysis of the record, I find no sufficient basis to disturb the trial Court’s finding in so far as the Appellant's connection with the recovered tusks is concerned. 7. The next issue is whether the items recovered from the scene were wildlife trophies of a species contemplated under section 92(2) of the Act. On this issue, the prosecution called PW2, Esther Nguta, a Scientist and Researcher at the National Museums of Kenya. She testified that she examined the four specimens submitted to her and, upon comparative examination with reference specimens, established that they were genuine elephant ivory tusks. She relied, inter alia, on the presence of Schreger lines and lateral cracking, which she identified as diagnostic characteristics of elephant ivory. She prepared a laboratory report dated 18th July 2023, which was produced in evidence, together with the Exhibit Memo. She also identified the four tusks in Court. 8. The expert evidence of PW2 therefore established, to the requisite standard, that the items recovered were genuine elephant tusks. Accordingly, I find that the prosecution sufficiently proved the nature of the wildlife trophies recovered from the Appellant. 9. In addition, section 92(2) requires the prosecution to establish that the trophies were of a critically endangered or endangered species specified in the Sixth Schedule or listed under CITES Appendix I. Indeed, the report dated 18th July, 2023 prepared by PW2, showed that the four elephant tusks were all from an elephant, particularly Loxodonta African, Commonly referred to as the African Elephant, an endangered species as captured under the Sixth Schedule (s.47) of the Wildlife Conservation and Management Act. It is therefore evident that the Elephant tusks were from an endangered species of elephant as contemplated under Section 92(2) of the Act. 10. Turning to the question whether the prosecution proved that the Appellant dealt in the said wildlife trophies without a permit or exemption issued under the Act. Undeniably, this is a critical ingredient of the offence created by section 92(2) of the Act. The offence is not established merely by proof that an accused person dealt in a wildlife trophy, rather that the prosecution must in addition prove that such dealing was without the requisite permit or exemption under the Act. 11. The particulars of the charge alleged that the Appellant was dealing in four pieces of elephant tusks without authority from the Director General of the Kenya Wildlife Service. Moreover, no evidence was tendered by the Appellant to challenge that fact. It thus follows that the Appellant was dealing with the said wildlife trophies without a permit and or exemption as contemplated under the Wildlife Conservation and Management Act. 12. The Appellant also challenged the prosecution case on account of the failure to call the informer and other witnesses whom he considered crucial. I have considered this argument. It is not every witness who participated in or had knowledge of a matter who must necessarily be called by the prosecution, the prosecution retains the discretion to choose the witnesses to call in support of their case as stated under section 143 of the Evidence Act and reiterated by various Court including the Court of Appeal in [***Joseph Kiptum Keter v Republic [2007] KECA 390 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2007/390/eng%402007-02-23)***,*** where the Court cited Bukenya v. Uganda [1972] EA 549 where the Court held that the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt. 13. The critical question is whether the evidence of the witnesses who testified was sufficient, direct and credible to establish the charge. The material evidence on the recovery of the tusks and the Appellant's connection to them came from PW1 and PW3, who participated in the operation. The failure to call the informer did not, in the circumstances, render the conviction unsafe, as the prosecution relied on the direct evidence of the officers who were present during the operation. 14. Having considered the evidence in its totality, I find the testimony of PW1 and PW3 sufficiently consistent on the material facts. The Appellant was present at the scene, and the tusks were recovered concealed behind the gate of his house, thereby connecting him to the offence. 15. I have also considered the Appellant's defence that he was wrongly arrested and had no connection with the tusks. Upon re-evaluating the evidence, I am satisfied that the prosecution proved that the recovered items were genuine elephant tusks, that the Appellant was connected to them, and that they were dealt with without the requisite permit or exemption. Accordingly, I find that the prosecution proved all the essential elements of the offence beyond reasonable doubt. 16. On the sentence, The Appellant was sentenced to ten (10) years' imprisonment for the offence of dealing in wildlife trophies contrary to section 92(2) of the Wildlife Conservation and Management Act, 2013. The provision prescribes a sentence of imprisonment for a term of not less than seven years. 17. In determining whether the sentence was harsh or excessive, I have considered the circumstances of the offence, including the fact that the Appellant was found dealing in four elephant tusks weighing approximately 33.5 kilograms and having a stated street value of Kshs. 33.5 million. The quantity and value of the trophies are aggravating circumstances, given the seriousness of offences involving illegal dealing in protected wildlife. 18. I have further considered the probation report, which indicates that the Appellant is a repeat offender, having previously been convicted of a similar offence. His previous conviction for a related wildlife offence is an additional aggravating factor and demonstrates that the Appellant had not been deterred by his previous encounter with the law. 19. In the circumstances, and considering that the sentence imposed was only three years above the statutory minimum, I find that the trial Court properly exercised its sentencing discretion. The sentence of ten (10) years’ imprisonment was neither harsh nor excessive and there is no basis for this Court to interfere with it. 20. Accordingly, I find that the conviction was safe and properly founded on the evidence. I further find that the sentence of ten (10) years' imprisonment was lawful, proportionate and justified by the circumstances of the offence and the Appellant's status as a repeat offender. 21. Consequently, the appeal against both conviction and sentence is dismissed. The conviction of the Appellant and the sentence of ten (10) years' imprisonment imposed by the trial Court are hereby affirmed and accordingly upheld. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **APPELLANT PRESENT FROM MAKUENI MAIN PRISON** **MS MUSANGO FOR THE STATE.** **COURT ASSISTANT: JAEL NOSIM**