[2022] KEHC 13333 (KLR)

Kioko & another v Republic (Criminal Appeal E074 & E075 of 2021 (Consolidated)) [2022] KEHC 13333 (KLR) (4 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13333 (KLR)

Republic of Kenya

In the High Court at Makueni

Criminal Appeal E074 & E075 of 2021 (Consolidated)

GMA Dulu, J

October 4, 2022

Between

Francis Mbolu Kioko

1st Appellant

Kioko Mbolu

2nd Appellant

and

Republic

Respondent

(Being appeals from the original judgment of Hon. E.M. Muiru in Kilungu Principal Magistrate’s Court PM Criminal Case No.E129 of 2021 pronounced on 30th July 2021)

Judgment

1. The two appellants, together with another, were charged in the magistrate’s court with dealing in a trophy of an endangered wildlife species without lawful exemption contrary to section 92(2) as read with section 105 of the Wildlife Conservation and Management Act.

2. The particulars of offence were that on April 20, 2021 at Sultan Hamud Township in Mukaa Sub-County within Makueni County, jointly were found dealing in a trophy of endangered wildlife species namely; Sandalewood weighing approximately 1. 0 tonnes with a street value of Ksh 2. 5 million which they were transporting using a pick up Reg KBV 342C make Toyota Hilux red in colour without a permit from the Director General Kenya Wild Service.

3. They all denied the charge. After a full trial, the two appellants were convicted of the offence and Issac Kilonzo the motor vehicle driver, was acquitted. The two appellants having been convicted were sentenced to 2 years imprisonment each.

4. Dissatisfied with the conviction and sentence of the trial court, the two appellants have separately appealed to this court and relied on the following similar grounds –1. That the trial magistrate erred both in law and fact when she convicted them without observing that the charge sheet was defective due to amendment and the sections of the law used on the charge sheet which rendered the same to be termed as duplex (ref: Analysis and Determination, page 7 line 3-5, C/article 50(2)(b) Constitution, contrary to section 214 CPC).2. The trial magistrate erred both in law and fact when she convicted them without regard to their basic rights of information and awareness contrary to section 19 of the Wildlife Conservation & Management Act, 2013 and overlooking the mutual benefits of the tree to the appellant contrary to section 4(e) of the Wildlife Conservation and Management Act 2013. 3.The trial magistrate erred by failing to observe that the criminal responsibility lay in the hands of KWS contrary to section 8 Cap 63 of PC (criminal responsibility).4. The trial magistrate erred both in law and fact when she failed to order the production of crucial witnesses who would change the course of the case.5. The trial magistrate erred by failing to give clear information as regards the definition of the offence of transporting the said wood, within context of the Wildlife Conservation and Management Act 2013.

5. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by each of the two appellants on the one hand and the submissions filed by the Director of Public Prosecutions.

6. This being a first appeal, I have to start by reminding myself that as a first appellate court, I am required to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences, but bear in mind that I did not have the opportunity to see witnesses testify to determine their demeanor, and to give due allowance to that fact see Okeno v Republic (1972) EA 32.

7. The appellants have raised both technical and substantive grounds of appeal. I will deal with the technical grounds first.

8. The first ground I will deal with, is with regard to the charge sheet. It is contended that the amended charge was defective for duplicity. I note that from the submissions of the appellants, the complaint is that the charge sheet initially referred to a wrong section, and that when it was amended to read section 92(2) of the Act, the particulars of offence stated that the trophy was listed in the sixth schedule or listed under cites appendix I.

9. In the appellants’ view, the use of the sixth schedule whose particulars were not given in the charge, and the use of the word “or”, could confuse any reasonable layman and thus the charge was duplex and they were prejudiced in their defences thus the charge was fatally defective.

10. Having perused the charge sheet, I find that what the appellants are complaining about are not the contents of the charge, but the evidence that was tendered in court to support the charge. I find no defect on the charge as claimed by the appellants. In my view section 92(2) as read with section 105 of the Act creates the offence charged. I find thus that the charge was not defective or duplex as alleged.

11. The second technical ground is the complaint that crucial witnesses in respect of the incident were not called by the state to testify. Again on this, I find no basis for that contention. I thus dismiss that ground.

12. The other grounds of appeal go the adequacy of the prosecution evidence on record, to sustain the convictions. I will start by saying that in every criminal case, the burden is always on the prosecution to prove every element of the offence alleged beyond any reasonable doubt. An accused person has no burden to prove his or her innocence.

13. The crime alleged herein against the two appellants was by its nature and definition, a very technical offence. Thus the prosecution had the burden of proving beyond any reasonable doubt all the technical elements of the offence.

14. In this regard, firstly, the allegation of the items in question being sandal wood, had to be proved beyond any reasonable doubt by the prosecution.

15. Though there was a report tendered in evidence from PW2 Peris Wangare Kamau a botanist at the National Museums that she examined some items sent to the botany department for analysis, and she confirmed that they were east african sandal wood and prepared a report on the same, which she produced in court as exhibit, it is not clear from the evidence, how and by whom the said items were transmitted to the botany department. Thus it cannot be said for certain that the items analysed by the botanist were the same items that were recovered from the pickup herein, which are under reference in the case herein. Thus the prosecution did not prove that the items in the pickup were sandlewood.

16. Secondly, from the evidence on record, even from the KWS officers PW1 Cpl Fredrick Oduor, and PW3 Ranger Simon Kemboi, even assuming that the items in the pickup were sandlewood, if the items were for domestic use, then there was no crime committed. Thus the prosecution had to prove not only the element of transportation of sandlewood, but had to prove also that the items were not for domestic use. There is no allegation that the items were being sold to a trader, thus the charge could not have been proved with the evidence on record.

17. Thirdly, and more importantly the items or sandlewood had to come from a protected area, so declared by the cabinet secretary as required under the law. There is no evidence that the items were from a declared protected area or ecosystem. Infact the evidence on record, was that the items were from private farm land belonging to the two appellants, which did not satisfy the requirements of the offence. In such circumstances, the benefit of the doubt has to be given to an accused person, and the only remedy available to the state is to find ways of amending the law to make it clearer or more specific that harvesting sandlewood from private land is an offence.

18. In the present case, I find that from the evidence on record, the items, even if they were sandal wood, not having come from a protected ecosystem or area declared by the cabinet secretary, the offence charged was not proved against any of the appellants.

19. I thus find that the prosecution did not prove the elements of charge against any of the two appellants. Thus the learned magistrate erred in convicting them. Consequently, the conviction and sentence will consequently not stand.

20. For the above reasons, I allow both appeals and quash the conviction and set aside sentence imposed against each of the two appellants. I order that each of the two appellants be set at liberty unless otherwise lawfully held.

DELIVERED, SIGNED & DATED THIS 4TH DAY OF OCTOBER 2022, IN OPEN COURT AT MAKUENI.………………………………….George DuluJudge