[2023] KEHC 26948 (KLR)

Loshie & another v Republic (Criminal Appeal E031 of 2023) [2023] KEHC 26948 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26948 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E031 of 2023

A. Ong’injo, J

December 11, 2023

Between

Joshua Molel Loshie

1st Appellant

Joseph Molel Yakobo

2nd Appellant

and

Republic

Respondent

(Being an appeal against the decision of Hon. David Odhiambo (SRM), on 28th April 2023 in Shanzu Senior Principal Magistrate’s Court Criminal Case No. E926 of 2021, Republic v Joseph Molel Yakobo and Joshua Molel Loshie)

Judgment

Background 1. The Appellants, Joseph Molel Yakobo and Joshua Molel Loshie, were charged jointly with the offence of dealing in a specified endangered wildlife species without a permit or other lawful exemptions contrary to Section 92(2) of the Wildlife Conservation and Management Act 2013.

2. The Particulars of the offence are that Joseph Molel Yakobo and Joshua Molel Loshie on the 29th day of July 2021 at around 1515 hours near Quickmart Mall in Mtwapa Township within Kilifi County were jointly found dealing in wildlife trophy namely one piece of elephant tusk weighing 3. 05 kilograms with a street value of Kshs. 600,000 being species that is endangered under Appendix (1) of the Convention of the International Trade of Endangered Species and at the time of doing so, did not have permit or other lawful exemption granted under this Act.

3. In Count II, the accused persons were charged with the offence of being in possession of wildlife trophy of an endangered species, without a permit or other lawful exemptions, contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013.

4. Particulars to Count II were that Joseph Molel Yakobo and Joshua Molel Loshie on the 29th day of July 2021 at around 1515 hours near Quickmart Mall in Mtwapa Township within Kilifi County were jointly found dealing in wildlife trophy namely one piece of elephant tusk one (1) piece weighing 3. 05 kilograms packed in a small white sack inserted in the bigger white sack with a street value of Kshs. 600,000 being species that is endangered under Appendix (1) of the Convention of the International Trade of Endangered Species and at the time of doing so, did not have permit or other lawful exemption granted under this Act.

5. They were also charged in Count III with the offence of being in possession of wildlife trophy without permit or other lawful exemption contrary to Section 95 (d) of the Wildlife Conservation and Management Act 2013.

6. Particulars to Count III were that the accused persons on the 29th day of July 2021 at around 1515 hours near Quickmart Mall in Mtwapa Township within Kilifi County were jointly found in possession of wildlife trophy namely one (1) piece of Hippopotamus tooth weighing 1. 90 kilograms packed in a small white sack and inserted in the bigger white sack with a street value of Kshs. 50,000. 00 without a permit from Director General Kenya Wildlife Service.

7. The trial court considered the evidence of prosecution witnesses and the accused persons defence and found the accused persons guilty and convicted them in all the 3 counts.

8. The accused persons were then sentenced to serve 7 years, 5 years and 5 years imprisonment each for the 3 counts to run concurrently from the date of arrest.

9. Joseph Molel Yakobo, the 1st accused in the trial court was aggrieved by the conviction and he preferred the appeal herein on the following amended grounds of appeal filed together with submissions on 22. 9.2023:1. That the trial court erred in law and fact by failing to see that the identification evidence tendered did not place them at the scene of the crime.2. That the trial court failed to see that the prosecution had withheld crucial evidence.3. That the trial court magistrate erred in law and facts by failing to take into account mitigation and pre-trial custody period.

Prosecution’s Case 10. The prosecution’s case was that the appellant herein and his co-accused were arrested when PW2 and PW3 were instructed by their senior PW1 to go and lay an ambush for the suspects who were in possession of game trophy and were seeking for a buyer who was to meet them near Quickmart Mall in Mtwapa.

11. On arrest, photographs of exhibits recovered were taken and suspects escorted to Mtwapa Police Station for further interrogation. An inventory was prepared by PW3 Ronga Kennedy Makau who also prepared Certificate of Weighing and the inventory was duly signed. PW1 said the appellant and his co-accused were to meet a potential buyer in Mtwapa Township.

12. PW2 said the appellant and his co-accused signed the inventory of recovered exhibits willingly. He said he was not aware anyone else was arrested in regard to the case. PW2 said the accused persons did not give contacts of the owners of the items. PW3 said it is their boss who posed as potential buyer of the wildlife trophy.

13. PW4, Dr. Jeremiah Pogon Kaltopek – Veterinary Doctor examined the exhibits recovered from the accused persons and established they were elephant tusk and hippo enamel tooth respectively. He said that no other animal has tooth like hippo or elephant.

Defence Case 14. When placed on defence, Joseph Molel Yakobo gave sworn statement and said that he was with his co-accused walking from Mtwapa towards Shanzu when they came across people who were arguing and before they passed, they were stopped, arrested and taken to the police station and placed in the cells. That at 9. 00 pm, they were removed from the cells and told to sign a document that when they refused, he was slapped and forced to put his fingerprints on the document and then taken back to the cells. That the following day, they were taken to court and charged.

15. The appellant said he sells traditional medicine, shoes and bracelets which were not brought to court. He said they found 3 men quarreling at Kilifi Stage in Mtwapa. He said one of the men who were quarreling came to court. He said he did not know why the two men were quarreling. He also said he was not told why he was arrested. He said that he did not know how to read and write and he did not know what he was signing. He said that he first saw the elephant tusks in court.

16. The 2nd Accused Joshua Molel – 23 years old said he was with his brother selling traditional medicine, shoes and bracelets when they were arrested by people they found quarreling. That the people stopped them and said they had spoiled their plans. They were hand cuffed, photographs of scene taken after which they were taken to the police station. He said that later the people who had arrested them returned to the station and forced them to sign certain papers. He said that they did not know what they were signing. He said they were slapped and threatened with shooting if they refused to sign. He said that he did not know about the allegations.

17. The appeal herein was canvassed by way of written submissions. The appellants Joseph Molel Yakobo and Joshua Molel Loshie filed their joint submissions together with Notice of Motion application seeking to amend grounds of appeal on 22. 9.2023.

Appellant’s Submissions 18. The appellant’s submissions were that they were not properly identified and placed at scene of crime as their photographs were not taken and the investigating officer did not obtain CCTV footage to confirm that indeed the appellants were in possession of the wildlife trophy as in the charge sheet.

19. It was also argued that the appellants’ fingerprints were not lifted from the exhibits to confirm they were found in possession of the elephant tusks and hippo tooth. The appellants argued that evidence presented by the prosecution with regard to recovery of the trophies at the alleged scene of crime failed to prove that they were recovered from the appellants. It was therefore argued that the burden on the prosecution was not discharged sufficiently to warrant their conviction.

20. It was argued further that it was blatant omission for the prosecution to fail to table photographic evidence and doubt raised by such omission raises manifest doubt that should discredit the prosecution’s evidence and such doubt should be resolved in their favour.

21. On sentence, the applicants argued that the words ‘liable to’ as couched under the relevant penal law does not connote that the stated penalties are minimum mandatory such that the trial court is obligated to only impose them regardless of the circumstances of the case in question. They argued that courts are now departing from strict construction of the provisions and adopting a liberal approach. They made reference to the ruling in Swabir Bukhet Labhed v Rep. C.A. CR.A. No. 5 of 2018 where it was held: -It is common ground that where a sentence is couched under the prefix ‘shall be liable to’ such as in the case above, the same connotes that the sentence prescribed therein is not a mandatory sentence rather it is the prescribed minimum sentence. Therefore, the sentencing court is clothed with discretion to determine the appropriate sentence of course, taking into account the surrounding circumstances of each case. See this court’s decision in Fred Michael Bwayo v Rep. (2009) eKLR

22. They also cited the holding in D.W.M. v Republic (2016) eKLR, Opoya v Uganda (1967) EA 752 and Kichanjele s/o Ndamungu v Rep. (1941) EA CA 64 where the prefix ‘shall be liable to’ connotes that sentence prescribed is not mandatory rather it is the prescribed maximum sentence and the sentencing court has discretion to impose any other sentence.

23. They argued that the courts ought to have considered that they were first offenders and imposed a lesser sentence. The appellants urged the court to adjust the sentence in consideration of the extenuating factors as highlighted in the submissions.

24. The Respondent did not file submissions up to the time this judgment was being written.

Analysis and Determination 25. This court being the first appellate court is mandated to re-evaluate and re-analyse evidence in the trial record and come up with an independent conclusion as to whether or not the accused were properly found guilty. Count 1 liable to imprisonment for a term of not less than 7 years, Count II liable to imprisonment for a term of not less than 5 years and Count III liable to a fine of not less than one million or in default to a term of imprisonment of not less than 12 months or to both such fine and imprisonment.

26. The offence herein was committed during the day. The appellants admit having ben at scene of crime although they claimed they were arrested by people who were arguing. PW1, PW2 and PW3 were witnesses to the recovery of the exhibits from the accused persons near Quickmart Mall in Mtwapa Township. The appellants did not have a permit to deal with the wildlife trophy found in their possession and they did not have an explanation as to how they came by the wildlife trophy other than by an unlawful manner. The applicants were aware it was prohibited for one to have wildlife trophy and that is why they concealed the same in the bags.

27. The applicants were together at the time that the exhibits were recovered from them. They claimed they were arrested when selling traditional medicine, bracelets and shoes which were not recorded in the inventory but a look at evidence of prosecution witnesses does not reveal that anything else was recovered from the appellants other than the elephant tusks and hippo tooth. The prosecution witnesses PW1, PW2 and PW3 were cross examined but no question arose as to whether appellants were found in possession of traditional medicine, shoes or bracelets.

28. This court therefore finds that the trial court magistrate properly arrived at the finding that the appellants were guilty of the offence charged.

29. On sentence, this court finds that the trial magistrate was at fault to sentence the appellants to 5 years jail term in Count III in which penalty is provided as a fine of not less than one million shillings or a term of not less than 12 months jail term or both.

30. The trial magistrate did not also explain how the appellants’ mitigation had affected the sentence passed and why the minimum sentence was meted other than any other and there is therefore evidence of lack of exercise of discretion as a result of mandatory nature of the penalty prescribed by the statute. In that regard and in consideration of the value of the elephant tusks and hippo tooth, this court renders itself as follows: -In regard to sentence in Count I, sentence of 7 years is set aside and substituted thereof with imprisonment of 5 years.Sentence in Count II is set aside and the appellants discharged under Section 35 (1) of the Penal Code.In Count III, sentence of 5 years is set aside and substituted thereof with imprisonment for 12 months.The sentences in Count I and Count III to run concurrently from the date of arrest i.e. 29th July 2021. Right of appeal of 14 days explained.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 11TH DAY OF DECEMBER, 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentMr. Amadi Advocate for the AppellantAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE