[2022] KEHC 14940 (KLR)

Lerugum v Republic (Criminal Appeal E007 of 2022) [2022] KEHC 14940 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14940 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Criminal Appeal E007 of 2022

CM Kariuki, J

November 10, 2022

Between

Bernard Lerugum

Appellant

and

Republic

Respondent

(Being an appeal from Conviction and sentence dated 24th August 2021 by Hon J. L. Tamar (Senior Principal Magistrate) in Criminal Case No. 109 of 2020 at Maralal Chief Magistrate)

Judgment

1. The appellant herein was charged with the offense of dealing with endangered species Contrary to Section 92 (2) as read with Section 105 (a) and 105 (b) of the Wildlife Conservation and Management Act No. 47 of 013.

2. The particulars being that on March 11, 2020 at around 4. 00 am at Larkinian market Centre, Ngilai West Sub-Location in Samburu East Sub- County within Samburu County, was found transporting suspected endangered tree species, namely East Africa Sandal Wood (Osiris lanceolate) weighing approximately 70 kg with a street value of kshs 56,000/= using a motorcycle registration number KMEM XXXY make Skygo black in color without a permit from the Director General Kenya Wildlife Service.

3. He pleaded not guilty, and after the trial, he was convicted and sentenced to 7 years imprisonment. He was aggrieved and lodged the instant appeal. He set out the grounds of appeal as follows:a.That the learned trial Magistrate erred in both law and fact in convicting the appellant when the crucial ingredients of the offence were never established and the prosecution did not discharge their duty and prove the case beyond the required standard.b.That the learned trial magistrate erred in both law and fact in convicting the appellant whilst the crucial element of downplaying the role of a motor bike rider as a transporter of persons and goodsc.That trial Magistrate erred in failing to sufficiently appreciate it was necessary before drawing the inference of the accused’s guilt form circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.d.That the learned trial magistrate erred in both law and fact in convicting the appellant on the face of material contradiction and inconsistency of the evidence by the prosecution.e.That the learned trial magistrate erred in law and in fact in convict the appellant without considering extenuating circumstances of the case.f.That the learned trial magistrate erred in both law and fact convicting the appellant whilst replying on his own conjectures and arrived at the wrong decision.g.That the learned trial magistrate erred in both law and fact in convicting the appellant on the basis of the inadequate evidentiary materials relied upon by the prosecution.

4. The directions were given that the appeal be canvassed via submissions which were filed and exchanged. The summary of the prosecution case was as hereunder.

5. In summary, the Prosecution Case

6. The case of the prosecution is to the effect that police officers were on patrol duties at Lolkuniani Market in Ngilai West Sub-location. On 10th March 2020, the officers left Wamba Police Station en route to Ngilai aboard the station motor vehicle. The officers were led by Chief Inspector Bernard Mugasha, the then Wamba OCS in the company of Samson Kibet.

7. PW1 Kevin Kibet, (PW2) Benjamin Mulei, (PW3) PC Cheusi Kimwele, and PC Emmanuel Joto, the investigating officer, among other officers. The testimonies of the police officers who testified are in material particulars the same.

8. In summary, the officers were on patrol duties on March 11, 2020 when, at around 4. 00 am in the morning, they saw a motorcycle approaching, heading in Wamba’s direction. The officers flagged the motorcycle to stop, and the rider complied.

9. The motorcycle was searched, and two cartons placed inside two green sacks were found, each weighing approximately 35 kg. The appellant was then arrested and escorted to Wamba Plantation, where he was photographed. His motorcycle registration No KMEM XXXY Skygo, black in color, was also detained.

10. The Investigating Officer, PC Emmanuel Joto, took an inventory of what was recovered on that same day, signed by the appellant and also witnesses. The same was produced ai bit 8.

11. On August 6, 2020, a random sample of the recovered sandalwood in the two cartons was forwarded for analysis at the forest research institute.

12. PW4 Wycliffe Marta, an officer in charge of wood anatomy at Forest Research Institute Nairobi, confirmed receiving a sample of wood material from Wamba Police Station with a request for analysis.

13. He told the court that all the pieces of wood submitted had the same anatomical features both in terms of macroscope and microscopic. He observed that according to both macroscopic and microscopic features, the samples were found to have the same identical features to those of similar elements of Osiris lanceolate (sandal Wood) and therefore were identified as sort of his findings and the forwarding letter as exhibits 5 (a) and (b).

14. PW6 PC Emmanuel Joto who was part of the officers on duty on the material date, reiterated and corroborated the evidence of the other police officers who testified.

15. In addition, he produced the wood samples exhibit 7 (a) and (b) in the NTSA report and searched in respect of the motorcycle, the two cartons, and the sacks where the sandalwoods were kept as the metro cycle. The investigating officer explained in cross-examination that the delay in forwarding the samples for analysis was attributed to logistics at the station level.

16. On the strength of the prosecution case at that stage, the court, in a ruling, found that a prima facie case had been made out sufficient to require the appellant to be put on his defence.

17. Defence

18. The appellant’s defense gave sworn testimony and called one witness to support his case. He told the court that he generally deals with transportation, and on March 10, 2020, he got two customers whom he took to Ngilai. On his return around 8. 00 pm, he was stopped by a lady and asked to carry for her some luggage which the lady had been in a certain manyatta.

19. The lady brought the cargo and confirmed tt was sugar and other items. She gave him 2000/= to deliver the cargo to Nchok Nursery School. On his way to deliver the consignment, he was stopped by the police searched, and the consignment turned out to be sandalwood. He told the officers that the luggage belonged to a lady whose name and phone number he gave to the police officers.

20. The police officers were not convinced and thus arrested him charge charged him with the impugned charges.

21. DW2 Mango Lengupai testifiers the appellant DW1 is his neighbor and Ngilai village. He recalls neighbor he saw an old Kikuyu lady outside his homestead near the road. She invited the lady into his house and stayed with her until the appellant came and carried the luggage that she had on a motorcycle cycle.

22. Appellant’s submission.

23. The trial court erred in both fact and law in convicting and sentencing him on the basis of inconsistent and contradictory evidence that was adduced by the prosecution contrary to elementary principles of criminal law, particularly on the elements of a criminal charge and burden of proof.

24. Petition of appeal sets out to prove Seven grounds of appeal; the matter essentially revolves around the prosecution’s onus of proving the case beyond a reasonable doubt, reliance on contradictory and inconsistent evidence to convict the Appellant, and the trial court’s conjectures, and speculations devoid of merits.

25. That a conviction for any offense committed by an individual can only be properly sustained if the prosecution leads evidence to establish two important ingredients elements in a criminal case. These are Appellate states of mind at the time; usually, intention or recklessness is required. The Latin maxim – Actus non facit reum, nisi mens sit rea – “The act itself does not constitute guilt unless done with a guilty mind, encapsulates the principle.

26. An Appellant person must be proved to be responsible for the conduct or existence of a state of affairs prohibited by criminal law before a conviction can result. It is the Appellant’s submissions Respondent failed to establish that test, and the court ought not to have convicted the Appellant.

27. The Appellant’s submission that the trial court in Maralal Magistrates’ Court Criminal Case No. 109 of 2020 on page 4 pages ought to have applied these principles, which it failed and thus arrived at a wrong conclusion. The trial court proceeded to convict and sentence the Appellant, notwithstanding that the Respondent failed to discharge the burden of proof in tandem with the standard of proof required of it by the law.

28. The Respondent’s witnesses gave inconsistent and contradictory evidence in that PW1 indicated that the suspected sandal sandalwood in two green nylon bags, whereas PW2 told the court that he saw the appellant carrying two boxes of sandalwood, the other three witnesses mentioned both the nylon and boxes interchangeably. These inconsistencies, shaky and unreliable evidence which the court ought to have disregarded and find in favor of the Appellant.

29. Numerous contradictions were given as to whether the Appellant was even arrested in possession of the alleged sandalwood, the trial court appears to have shifted the burden of proof from the prosecution to the appellant contrary to the criminal law principles and more importantly, Article 50 (2) (a) of the Constitution of Kenya, 2010.

30. The Appellant’s testimony that the goods were given to him to deliver to Wamba by a lady named Mary Kamau, whose contacts he gave the police officers were vital and pivotal in determining the Appellant’s state of mind.

31. The following instances illustrate the inadequacy of the Respondent’s evidence before the trial court: -

32. All prosecution witnesses, including the Investigating Officers, were consonant that they borrowed the weighing machines, and they could not guarantee as to the same was working or not. The Investigating Officer page on 4 of the Record of appeal stated, “I borrowed the weighing machine at Wamba Town and weighed the sandal sandalwood was 70k”. It is clear from that piece of evidence that it was difficult to guarantee if the said weighing machines were working or not.

33. The PW6 informed the Honourable trial Magistrate that the samples of sandalwood were taken to the Kenya Forest Research Institute for analysis after five (5) months for analysis. He told the court that the delay was occasioned by lack of a facilitation.

34. Does this create doubts replies sent to KEFRI were the same recovered from the Appellant? Were the weighing machines working? Were the sample of good quality after such a long period of time? Could the samples have been interfered with? Or exchanged? These doubts ought to have been considered in favor of the Appellant. Instead, the trial court attempted to fill the gaps and inconsistency in the Respondent’s evidence.

35. Why did the police refuse to arrest or investigate the owner of the consignment Mary Kamau yet the Appellant provided them with her mobile phone contacts? Is it possible that, indeed, the consignment belonged to Mary Kamau? Why did the court ignore this piece of evidence.? Why did the court ignore the existence of Mary Kamau even after corroboration of the Appellant’s evidence by DW2? (See page 31 of the record of appeal).

36. The learned trial Magistrate at, paragraph 8 of the record of appeal opines, “the Appellant testimony points to a man who knew the nature of consignment he was carrying. He gave the name of the lady Mary Kamau and her phone contact to the police. I do not think that a random client would have given all these details.” The learned trial Magistrate shifted the burden of proof to the Appellant to prove his innocence contrary to the law. See the Court of Appeal in the case of Johannes Amadi v Republic [2018] eKLR dealing with a similar issue.

37. There was no direct admissible and relevant evidence that would be capable of sustaining the conviction entered by the trial court. Reliance was made on the court of Appeal case of Kipkering Arap Koske v Republic [1949] 1 EACA 135 where the court held that “It is now settled that for a court to convict on circumstantial evidence, there must be evidence which points irresistibly to the Appellant as the person to the exclusion of any other person.”

38. The Appellant consistently raised the name of Mary Kamau from the time of the arrest throughout the proceedings. DW2 corroborated the existence of Mary Kamau.

39. The Respondent’s witnesses PW1, PW2, PW3, PW4, and .PW6 testified that they arrested the Appellant, and upon search, they found what they suspected to be sandalwood. The Respondent’s witnesses gave inconsistent and contradictory in that PW1 indicated that the suspected sandalwood was found in two green nylon bags, whereas PW2 told the court that they saw the Appellant carrying two boxes of sandalwood and indeed the other three witnesses mentioned both the nylon and boxes interchangeably

40. The Appellant and the Respondent have both been consistent about t existence of another person who could be the culprit being one Mary Kama u.The appellants submit that the learned trial Magistrate failed to critically interrogate the evidence. Instead, he relied on speculations and conjectures and thus arrived at erroneous findings and consequently convicted and sentenced the Appellant.

41. It is imperative to note that the learned trial Magistrate acknowledged that he did not see and hear the prosecution’s witnesses; however, the learned trial Magistrate failed to consider the credibility of the prosecution’s witness, which negatively impacted the reasoning of the court. Reliance is made on the Court of Appeal case of Johannes Amadi v Republic (supra

42. Respondent’s Submissions

43. It is submitted that PW1 PCSamson Kibet testified that on March 11, 2020, CI Bernard Mugasha, PC Benjamin Mulei, PC Kelvin Kibet, PC Cheusi Kimwele, and PC Emmanuel Jotoh were on patrol at Lolguniani Market when they saw the Appellant’s motorcycle registration number KMEM XXXY Sykgo black in colour. They stopped the motorcycle and the Appellant alighted. He was carrying some luggage which they asked him to open. The Appellant was carrying what they suspected to be sandalwood. The Appellant was then arrested, and the sandalwood was taken to the Wamba Police Station.

44. The evidence of PW1 is corroborated by the testimony of PW2 PC Kevin Kibet, PW3 PC Benjamin Mulei, and PW5PC Moses Munga who were present when the Appellant was arrested with the sandalwood. An inventory was prepared at the scene, and the sandalwood was also weighed. The weighing certificate showed that the sandalwood was approximately 70 kg.

45. The expert witness was PW4 Wycliff Manta, who testified that he is a Research Technologist working at the Kenya Forestry Research Institute. He confirmed that the exhibits the Appellant was carrying on his motorcycle on the material date were Osiris lanceolate sandalwood. He prepared a report to that effect, and the same was produced as exhibit 5 (a).

46. PW6 PC Emmanuel Jotoh was the Investigating Officer in this matter. He testified that on March 11, 2020, he and other police officers were on patrol when they came across the Appellant and the sandalwood. They asked the Appellant if he had a permit for the sandalwood, but he did not produce any.

47. PW6 prepared an inventory of the recovered items, which was signed by the Appellant and the police officers present at the scene. (Exhibit 8). Photographs were also taken of the Appellant and the sandalwood (Exhibits 3a and 3b). He further testified that PC Maina took the samples of sandalwood to Kenya Forestry Research Institute for analysis, and he produced an exhibit memo that accompanied the samples (Exhibit 6).

48. The samples were analyzed and confirmed to be sandalwood. He also did a search at NTSA Meru and confirmed that the motorcycle KMEM XXXY Sykgo black in colour, was registered in the Appellant’s name.

49. When the Appellant gave his defense, he stated that he did not know that he was carrying sandalwood. He told the court that the owner of the consignment was a lady who had paid him to transport the luggage to Nchok Nursery School in Ngilai. He saw some of the items in the luggage, that is, sugar and other items, yet upon recovery of the sandalwood, no sugar was recovered or mentioned by any witnesses.

50. Neither was sugar or other such items listed in the inventory which was prepared at the scene. The Appellant stated that after the lady handed him the items, they both went their separate ways on different motorcycles. The Appellant’s defense was highly unbelievable. His conduct was that of a woman who knew what items he was carrying.

51. The Prosecution’s evidence has clearly shown that the Appellant was found carrying the subject’s sandalwood. An inventory was prepared at the scene, and the Appellant was then escorted to Wamba Police Station. The expert witness, PW4, confirmed that the exhibit recovered from the Appellant was indeed sandalwood. The appellant did not have a permit for the sandalwood.

52. In the case of Jackson Lochibai v Republic [2022] eKLR at the High Court at Nanyuki where the Appellant person was charged with the offence dealing in Endangered Species Contrary to Section 92 (2) as read with Section 105 (a) and 105 (b) of the Wildlife Conservation and Management Act No. 47 of 2013, Laws of Kenya and was sentenced to serve 7 years imprisonment. The learned judge PNGHG Waweru held that: -“Once the trial court decided, as it did, that the Appellant deserved a custodial sentence, its hands were tied by the law as to the minimum number of years it could award him. In this case, it was seven (7) years imprisonment, and that is what he got. There is absolutely no reason for this court to interfere with the minimum term of imprisonment (by law) that the Appellant was awarded. I find no merit in this appeal against the sentence. It is hereby dismissed.”

53. Sandalwood is a protected species. Conservation matters are much more than trifle. They are a matter great public interest. I ask your Lordship to fully appreciate the important role played by forests in the socio-economic and biological diversity of our country.

54. There was overwhelming evidence against the Appellant. The prosecution’s evidence was free from error. The Appellant was convicted and sentenced to serve 7 years imprisonment, which is the minimum sentence for the offence of which he was charged with. There are no reasons for this court to interfere with the sentence meted out to the Appellant.

Issues, analysis, and determination 55. After going through the proceedings and the parties’ submissions, I find the issues are; Whether the ingredients of the offense were proved beyond a reasonable doubt? Was the Appellant’s defense considered by the trial court? And Was the sentence legal and justified?

56. In determining this Appeal, the court must fully understand its duty as the first Appellate court, as stated in the case of Okeno v Republic [1972] E.A. 32, Pandya v R (1957) EA 336 and Ruwala v R (1957) EA 570 which is to subject- the evidence as a whole to a fresh and exhaustive examination and for this court to arrive at its own decision on the evidence, it must weigh the evidence and draw its own conclusions and its own findings while making allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses as they testified. Under “Section 92 (2), which the appellant person is charged provides as follows: -“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, committing an offense and shall be liable upon conviction to a term of imprisonment of not less than seven years.Section 92 (3) provides as follows: -“Any person who, without permit or exemption issued under this Act, deals in live wildlife species of any critically endangered or endangered species as specified in the sixth schedule or listed under Cites appendix commits an office and shall be liable upon Section 92 (4) Any person without permit or exemption issued under this Act is in possession of any live wildlife species or trophy of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offense and shall be liable upon conviction to a fine of not less than three million shillings or a term of imprisonment of not less than five years or both such fine and imprisonment.

57. A trophy is defined as any wildlife species, alive or dead, and any bone, claw, e.g., feather, hair, hoof, skin, tooth, the tusk of other durable portion whatsoever of that animal whether processed added to, or changed by the work of man or not which is recognized as such. Further, the definition of wildlife includes animals, plants or microorganisms, or part thereof.

58. It is important to note that Section 92 Sub-Sections (2), (3), (4), and (5) were introduced by Statute law/Misc.Amendment Act 2018. Otherwise, before the amendments, Section 92 was stand-alone without sub-sections. The section before the subsequent amendment provided as follows: -“Any person who commits an offense in respect of an endangered or threatened endangered species or in respect any trophy of the endangered or threatened species shall be liable upon conviction to a fine of not less than 20 million shillings or imprisonment for life or both fine and imprisonment.”

59. In the instant case, the Appellant person is charged with dealing with endangered species contrary to Section 92 (2) as read with Section 105 (B). The evidence being the prosecution through his witnesses is that on the material date, the March 11, 2020, at 4. 00 am, while the police officers were on patrol in an area called Ngilai at Lokkuaniani market, the Appellant, while on a motorcycle, was stopped. A search on him was done, and two cartons inside a sack were found. Inside the cartons were found wood suspected to be sandalwood, a tree species classified as endangered in the sixth schedule of the Act.

60. The inventory of what was recovered was taken, and the Appellant was escorted to Wamba Police station, where he was subsequently charged.

61. The wood sample was taken for analysis, and the expert witness (PW4) Wycliffe Mauta told the court that the sample presented had both macroscopic and microscopic features identical to those of Osiris lanceolate. He formed the view based on scientific analysis that the sample was indeed Osiris lanceolate, otherwise known as East Africa Sandal Wood.

62. The Appellant, in his defense, pleads ignorance of what he was carrying. He told the court that the owner of the consignment was a lady who had paid him to transport the luggage to Nchok Nursery School in Ngilai. He told the court that he saw part of the items in the carton being sugar and other items. However, during the search and recovery of the items in both cartons, none of the items mentioned by the Appellant were recovered and listed in the inventory.

63. He gave the name of the lady Mary Kamau and her phone contact to the police. The court was told by DW2 Mango Lengupai that both the Appellant and the mysterious lady went their separate ways using two different motorcycles. It is not clear why she didn’t carry her consignment, and yet she had a motorcycle, according to the witness, nor did the appellant explain the scenario.

64. Thus, the trial court was justified in finding the Appellant not truthful and finding the evidence by the prosecution to be overwhelming. I am satisfied with the evaluation of its evidential value by the trial court. However, this court is not convinced the evidence supported the ingredients of the offence of dealing under section 92(2) beyond reasonable as analyzed as evidence tilts into the realm of the ingredients of the offence of possession under section 92 (4) of the Act.

65. It is noted that the Wildlife Conservation and Management Act No. 47 of 2013 does not define the term possession, thus definition is sought from the Penal code and other sources.

66. Possession is defined under Section 4 of the Penal Code in the following languages.Section 4 of the Penal Codedefines possession as: -a.“be in possession of or “have in possession “includes not only having in one’s own personal possession but also knowingly having anything in the actual possession or custody of any other person, or having in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or any other person;b.If there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession, it shall be deemed taken to be in the custody and possession of each and all of them.

67. Similarly, in Stephen’s digest of the criminal law, possession is defined as “a movable thing said to be in the possession of a person when he is situated with respect to it, that he has the power to deal with it as the owner to the exclusion of all other persons, and when the circumstances as such that he may be presumed to intend to do so in the case of need.”

68. Of essence is the elements of dealing and possession as per the provisions employed in the two categories of the offenses created in Section 92 (2) and 92 (4) supra. Guidance is found in the treatise (a manual) on Wildlife, forestry, and Fisheries Offences in Kenya; -Point to prove – a Guide to prosecutors and investigators, including sample charges and standard operating procedures; pages 35 and 36, which are to the effect that:Trophy: bone, craw, egg, feather, hair, hoof, skin, tooth, tusk, or any animal and any bark, branch, leaf, sip, or extract of any plant species, or any other durable portion, whether processed, added to or changed which is recognized as such.Dealing: applies to trophies and live species means “to sell, purchase, distribute, barter, give, receive, supply, cut, carve polish, preserve, clean, mount prepare or transportation or conveying or to be in possession with intent to supply.On possession, the manual provides: It is necessary to prove knowledge of possession of an article, not necessarily the nature of the article. TheODPP should advise on the legal aspect of this. Knowledge can be implied if not in physical possession but issues such as the degree of control over the item are important e.g., if a suspect is caught in possession of a bag, he is deemed to be in possession of the contents of that bag. If an item is found in his car, he is deemed to be in possession of any item found in that car. Where you have more than one suspect in a car, evidence such as exactly where the item was found in the car will be vital- who would have had access/ was it in the boot/ the passenger or driver’s side foot -well? The driver’s door? The grove compartments? Fingerprint evidence may be necessary, and continuity of exhibit handling will be vital.

69. The aforesaid analyzed evidence and law put the circumstances of the case in the realm of possession as demonstrated above but not in dealing, which is more of transacting with subject items vide dealing meaning in Cambridge dictionaryhttps://dictionary.cambridge.org › dictionary › dealing the activity of buying and selling particular commodity or mutatis mutandis.

70. This is in consonant with the definitions in the provisions cited in the statute under which the appellant was charged. Thus, the consequence is whether the offence of possession under section 92(2) is a lesser cognate offence to dealing under section 92(2).

71. Section 179 of the Criminal Procedure Code provides as follows:“179. (1)When a person is charged with an offense consisting of several particulars, a combination of some only of which constitutes a complete minor offense, and the combination is proved. Still, the remaining particulars are not proved; he may be convicted of the minor offense, although he was not charged with it.(2)When a person is charged with an offense and facts are proved that reduce it to a minor offense, he may be convicted of the minor offense, although he was not charged with it.As is apparently clear, section 179 of the Criminal Procedure Code empowers a court, in some particular special circumstances, to convict an accused person of an offense, even though he was not charged with that offense. The court contemplated by section 179 can be either the trial court or the appellate court……..The question is whether the special circumstances contemplated by section 179 were in existence to enable the court to convict the appellant of an offence with which he was not charged. An accused person charged with a major offense may be convicted of a minor offense if the main offense and the minor offense are cognate; that is to say, both are offenses that are related or alike, of the same genus or species. To sustain such a conviction, the court must be satisfied with two things. First, the circumstances embodied in the major charge necessarily and, according to the definition of the offense imputed by the charge, constitute the minor offense. Secondly, the major charge has given the accused person notice of all the circumstances constituting the minor offence of which he is to be convicted. (See Robert Ndecho & Another v Rex (1950-51) EA171 and Wachira S/O Njenga v Regina (1954) EA398). Spry, J. explained the essence of the first consideration as follows in Ali Mohammed Hassani Mpanda v Republic [1963] EA294 while construing the provision of the Tanzania Criminal Procedure Code equivalent to section 179 of the Kenya Criminal Procedure Code:“Subsection (1) envisages a process of subtraction: the court considers all the essential ingredients of the offense charged, finds one or more not to have been proved, finds that the remaining ingredients include all the essential ingredients of a minor, cognate, offense (proved) and may then, in its discretion, convict of that offense.”That conclusion is reached at the stage of judgment when it is not practical to require the accused person to plead afresh to the minor offense. It is a decision premised on the discretion of the court based on the evidence adduced at the end of the trial.” [Underlining mine].

72. Further in the case of Ndeka v Republic (Criminal Appeal E007 of 2021) [2022] KEHC3 (KLR) where the elements for dealing in an endangered species were stated as follows:“Dealing includes two elements; namely, being in physical control of the item and knowledge of having the item. To be guilty of dealing, an accused person must be shown to have knowledge of two things, namely, that he knew the item was in his custody, and secondly, he knew that the item in question was prohibited. The third element is the dealing aspect. There is evidence the appellant was trying to sell the ivory to PW1. A person has possession of something if the person knows of its presence and has physical control of it or has the power and intention to control it. ……….”.

73. The court finds that the ingredients of the offence of dealing the charge sheet were not proved beyond reasonable doubt but on the other hand, the offence of possession was proved to the required standard. This is in consonant with the definitions in the provisions cited in the statute under which the appellant was charged. Thus, the consequence is whether the offence of possession under section 92(4) is a lesser cognate offence to dealing under section 92(2).

74. The motorcycle under the control of the appellant was searched, and two cartons placed inside two green sacks were found, each weighing approximately 35 kg. The appellant was caught in possession of two cartons of the subject of the charge. Thus, he is deemed to be in possession of the contents of those cartons. There was no evidence beyond possession save that there was an allegation of an owner of the same who had hired him. The hirer, for that matter, would be the dealer.i.Thus, the appellant is found guilty of possession under section 92 (4), and being a lesser offence to dealing under section 92(2), the court substitutes the offence of dealing with possession thereof.ii.On sentence, the appellant is convicted and sentenced to a mandatory fine of ksh 3 million and in default to serve five years imprisonment.(iii)Thus, appeal succeeds to that extent.

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 10THDAY OF NOVEMBER, 2022. .................................CHARLES KARIUKIJUDGE