[2024] KEHC 11043 (KLR)

Macharia & another v Republic (Criminal Appeal E011 of 2024) [2024] KEHC 11043 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEHC 11043 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal E011 of 2024

SM Mohochi, J

September 23, 2024

Between

Sammy Ikoroi Macharia

1st Appellant

James Macharia Ikoroi

2nd Appellant

and

Republic

Respondent

(Being an Appeal from the Judgment of the Learned Magistrate Hon. Priscah Nyotah in Nakuru Law Courts at Nakuru Chief Magistrate's Court Criminal Case No. 1768 of 2019)

Judgment

1. The Appellant was charged in Nakuru CMCC 1768 of 2019 for the two offences of Being in Possession of a wildlife trophy of endangered species without permit or other lawful exception, contrary to Section 92(4) as read with Section 105 of the Wildlife Conservation and Management Act, 2013; and Dealing in a wildlife trophy of endangered species without permit or any other lawful exception contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013.

2. The particulars of 1st Charge were that, on 6th June, 2019 at around 9:00 am at Ebenezer Estate in Pipeline area within Nakuru County, the 1st and 2nd Appellant were jointly found in possession of sixteen pieces of elephant tusks weighing 53 kilograms valued at Kshs. 5. 3 million on board Motor Vehicle Registration No. KCG 552N Toyota Fielder without a permit from the Director General, Kenya Wildlife Service.

3. The particulars of the 2nd Chargewere that, on 6th June, 2019 at around 9:00 am at Ebenezer Estate in Pipeline area within Nakuru County, the 1st and 2nd Appellant were jointly found dealing in trophy of endangered species to wit sixteen elephant tusks weighing 53 kilograms valued at Kshs. 5,300,000/- using motor vehicle registration no. KCG 552N Toyota Fielder, without a permit from the Director General, Kenya Wildlife Service.

4. The 1st and 2nd Appellant pleaded not guilty on both counts and the matter proceeded to Trial. The prosecution availed four (4) witness in support of its case.

5. PW1, PW3 and PW4 testified that they lay ambush and pursued the vehicle KCG 552N to Ebenezar Estate, upon receiving a tip off that it was ferrying elephant tusks. The vehicle stopped and the police officers also stopped their vehicle, alighted and went to KCG 552N and asked the two male occupants, the Appellants, to identify themselves, which they did by their names.

6. The police officers searched the vehicle and recovered three sacks with certain contents. Two of the sacks had a total of sixteen (16) elephant tasks, and the other sacks had charcoal. Upon asking the Appellants whether they had permits to own elephant tusks and their answer was in the negative. They arrested the Appellants and processed the scene by taking photographs and recording an inventory. The sacks, the sixteen pieces of elephant tusks, photographs of KCG 552 N and the inventory were produced as exhibits.

7. The scene was processed and the Appellant handed over to the police together with the exhibits. PW 4 prepared the inventory, labelled the exhibits and prepared an exhibit memo forwarded the sixteen (16) elephant tusks to the Museums of Kenya for analysis. PW 2, a research scientist at the Museums of Kenya. confirmed that he received the exhibit memo dated 6th June, 2019 and exhibits for analysis. He stated the procedures he followed which led him to a conclusion that the exhibits were elephant tusks. He prepared a report, which he produced as an exhibit. This report was not shaken on cross-examination or controverted in any way. I have no reason to doubt the same. PW 4 confirmed that elephant tusks are the ones he described as elephant trophies. Again, this evidence was not shaken or controverted. The evidence confirmed that the 16 elephant tusks that were actually trophies.

8. At the close of the Prosecution’s case the Court found that the Appellants had a case to answer and were put on their Defence.

9. DW1 the 1st Appellant gave sworn evidence that as a used cloths seller he boarded a private vehicle which he admitted was the vehicle subject to the case on his way to Nairobi together with his son DW2 and the vehicle moved from Eldoret to Nakuru at the outskirts the driver indicated he had luggage to deliver and the Appellants were driven into a compound from whence they were arrested.

10. DW2 Adopted DW1 evidence and further tendered electronic evidence as Exhibit 2. It is noteworthy that he never expounded on the import of the evidence.

11. The Appellants 's theory in their defence was that they were innocent passengers in the vehicle and that there were other passengers in that vehicle too, suggesting that the alleged other persons were the ones responsible for the trophies.

12. By judgment delivered on 13th February, 2024, the Appellants were convicted on the main count and sentenced on the 28th March 2024 to serve Five (5) years imprisonment on each count to run concurrently.

13. Being dissatisfied with the decision of the Trial Court, the Appellant instituted this appeal against the conviction and sentence on three grounds as follows: -a.The learned Trial magistrate erred both in law and in fact, in failing to find that the charges facing the appellants were defective and could not be prosecuted as distinct charges.b.The learned Trial magistrate erred both in law and in fact, by convicting the Appellants of an offence that was not proved beyond reasonable doubt.c.The learned Trial magistrate erred both in law and in fact, in believing the evidence tendered by the prosecution without exercising reasonable caution in admitting the same despite the existence of glaring discrepancies.d.The learned Trial magistrate erred both in law and in fact, by convicting the Appellants of dealing in trophies without having had evidence of the purported buyer of the said trophies.e.The Trial Court erred both in law and in fact, in shifting the burden of proof to the Appellants.f.That the learned Trial magistrate erred both in law and in fact, by convicting the Appellants on insufficient evidence.g.The Trial Court misdirected itself in the applicable principles in convicting the Appellants.h.The Trial Court erred both in law and in fact, in finding that the accused produced no evidence to support his defence.i.The Trial Court erred in law and in fact, in failing to consider the submissions made on behalf of the Accused Persons.j.The sentence meted out by the Trial magistrate is manifestly excessive, harsh and or punitive

14. The Appeal was canvassed through written submissions pursuant to the direction of 13th February, 2024. The Appellants’ submissions were filed on 21st May 2024, with the Appellants filing their generic written submissions dated 14th July 2024 while the Respondent filed its written submissions 2nd August, 2024.

Appellant’s Submissions 15. The Appellants submitted in their generic written submissions dated 4th July 2024, erroneously that the Appellants were charged with the offence of being in possession of wildlife trophy contrary to Section 95 of the Wildlife Conservation and Management Act 2013 which provides:“Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or Imprisonment for a term of not less than five years or to both such imprisonment and fine."

16. That the following three elements ought to have been proved during Trial for a case of this nature to suffice:-a.Proof that the accused was in possession of a trophy,b.Proof that the items in question are game trophies; andc.Proof that the accused lacked a certificate of ownership.

17. Reference is made to the case of Jean Wanjala Songoi and Patrick Manyola versus Republic Criminal Appeal No 100 of 2014, possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others

18. That, the Prosecution's case was contradictory. The Trial Court did not prove the case to the required standard to warrant a guilty conviction as highlighted hereunder.

Inconsistent Facts: 19. That, the Trial Court failed to observe that, the timelines provided by the Prosecution Witnesses were inconsistent. For instance, PWI in his testimony and cross-examination stated that they departed their office for Kiamunyi at 7:00 am and arrived at Kiamunyi in 20 minutes. He went further and added that upon arrival at Kiamunyi, the alleged vehicle that the accused persons were using arrived 40 minutes after their arrival.

20. That, further, PWI stated that they laid an ambush at Kiamunyi Estate and followed the vehicle, while PW3 mentioned that they followed the vehicle to Lanet Junction and then to Ebeneza Estate, without a clear sequence of events or times.

21. That PW4 mentions mobilizing colleagues at 7am and picking up officers at around 8:30am. However, the timelines and sequences between leaving the station, following the vehicle, and involving Pakawa Police Station are not consistent with other statements that suggested a total of 60 minutes, yet other statements implied a much shorter duration for the entire operation. For instance, PW 3, Corporal Jairus who was deployed together with PWI, stated that from their office to Kiamunyi, one can take about 5 minutes.

22. That, another glaring fact concerns the Motor Vehicle Registration Discrepancies. There was inconsistent information between the vehicle seen in the video i.e. KCB 552N and the vehicle involved in the arrest i.e. KCG 552N, moreover, still on the video evidence, PWI: Could not verify if the tusks in the video were the same as those presented in Court. On the other hand, PW3 expressed distrust in the video clip and entities people who were not present at the crime scene. Further, PW4 noted that the officer in the video provided incorrect information and was not present during the incident.

23. That, it is worth noting that, the Trial Magistrate did not take cognizant of the inconsistencies and irregularities regarding how the evidence was handled, marked, and stored. PWI claimed that the inventory was prepared at the crime scene whilst PW3 stated the inventory was prepared at the police station, not at the scene.

24. On the other hand, PW4 stated that the photographs were taken at the scene but acknowledged discrepancies in the inventory preparation timeline and location. This discrepancy casts a seed of doubt on the integrity and admissibility of the evidence.

25. That, the chain of custody of the evidence was equally contentious and suspicious. Both PW3 and PW4 mentioned the handling and transfer of the elephant tusks. However, there are inconsistencies regarding who had possession of the tusks and when. This inconsistency raises questions about the integrity of the evidence.

26. Additionally, PW2, Benjamin Nyakundi a research Scientist at National Museum, the scientist, indicated that the tusks were brought to him, but he couldn't recall the name of the officer who delivered them. This gap in the chain of custody is extremely critical, as the evidence could have been tampered with at that point.

27. That, the inconsistencies in handling, transferring, and documenting the tusks from the crime scene to the National Museum suggests that the evidence may have been tampered with or improperly handled, hence affecting its admissibility.

28. The upshot is that the evidence of the prosecution witnesses could not be said to have been corroborative. Moreover, from the evidence on record, it cannot be said with certainty that the alleged materials found in the vehicle with the accused persons are the same ones that were processed and further examined. The chain of custody and integrity of the evidence is very questionable.

29. The Appellants invited this Court to find that the learned Trial magistrate erred both in law and in fact in believing the evidence tendered by the prosecution without exercising reasonable caution in admitting the same despite the existence of glaring discrepancies.

30. Reliance was placed on the case of Martipei Parmaya v Republic [2017] eKLR where Judge C. Kariuki when faced with similar issues held that;“the prosecution did not prove its case to the required standard and allowed the appeal, quashed the conviction and set aside the sentence on that basis”.

31. The Appellants urged the Court to consider the decision by Justice Reuben Nyakundi in Issa Nabongo Wanina v Republic [2021] eKLR where the duty Court quashed the original conviction and sentence in Mpeketoni PMCRC No. 24 of 2018 delivered by Hon. R. G. Mundia (SRM). In the aforementioned case, the Learned Judge held that that;“the prosecution failed to prove as case beyond reasonable doubt. The essential elements of an offence of this nature, to wit. possession and proof that the items were indeed wildlife trophy”.

32. As highlighted earlier, the chain of custody of the evidence was equally contentious and suspicious. Therefore, that coupled with the other discrepancies and inconsistencies render the Prosecution's case weak and unsustainable in a case of such magnitude.

33. On the issue of sentencing, the Appellants submit that, the sentence was excessive. The Trial Magistrate failed to consider that the appellants were first offenders thus the mandatory sentence of 5 years for both Courts was excessive in the circumstances of this case. That, additionally. the pre-sentence report revealed that the appellants were sole breadwinners of their families.

34. That under Judiciary Sentencing Policy Guidelines paragraph 23 being a first offender is a mitigating factor, which the Trial Magistrate ought to have considered when exercising its discretion in meting out the sentence.

35. The Appellants further relied on the case of Kipngetich& 2 others v Republic (Criminal Appeal 20 & 19 of 2019 & 140 of 2017 (Consolidated)) (2021] KEHC 447 (KLR) (4 March 2021) (Judgment) where the High Court set aside the sentence of the Trial Court of the appellants who faced similar charges as the one before this Court. The learned Judge in that instance considered the fact that the appellants were first time offenders.

Respondent’s Submissions. 36. On the first issue, as to Whether there were material inconsistencies in the prosecution case? it was submitted by the Respondent that, the Appellants point out the discrepancies with regard to the timelines when the KWS officers PWI, PW3 and PW4 departed from their office and to head to Kiamunyi to lay an ambush in pursuit of the appellants. The Respondent submits that, the differences were not material to the substance of the case as it is not disputed on who effected the arrest and how it was done.

37. Reference is made to the case of Richard Munene v Republic (2018) eKLR the Court addressed the issue of contradiction or inconsistency in the evidence of the prosecution witness and stated;“It is a settled principle of law however, that it is not every trifling contraction or inconsistency in the evidence of the prosecution witness that will be fatal to its case.It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the Trial Court that an accused person will be entitled to benefit from it."

38. The Respondent submit that, the prosecution evidence as to the sequence of events was cogent, consistent and well corroborated.

39. That the prosecution proved that, there was a report received by KWS officers that the occupants on board motor vehicle KCG 552N were in possession of elephant tusks and were transporting the same from Eldoret heading to Nakuru through the Eldama Ravine route.

40. PW1, PW3 and PW4 being officers from KWS swung into action to lay ambush on the occupants of the said the motor vehicle at Kiamunyi area on the morning hours of 6 June. 2019. They traced the vehicle and followed it to Ebenezer estate where the arrest was affected.

41. The Appellants were on board the motor vehicle KCG 552N at the time of the arrest by PW1, PW3 and PW4 and in the said vehicle were the exhibits which included 2 sacks with a total of 16 elephant tusks which were later confirmed to be game trophy. The fact that they were on board the said vehicle was not disputed by the appellants.

42. That the Appellants were thus in possession of game trophy and the possession in this instance is within the meaning of Section 4 of the Penal Code which provides;a."be in possession of" or "have in possession" includes not only having in one' own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other persons;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 of their custody or possession, it shall be deemed and taken to be in the custody and poste of each and all of them.

43. The scene was processed, photographs were taken of the exhibits and the motor vehicle of the scene and an inventory. All the processing at the scene was done in the presence of the appellants and they signed the inventory.

44. The exhibits, particularly the elephant tusks were secured by police who labelled them and filled them in inventory. The labelled exhibits were then forwarded to the research scientist, who testified as PW2, at the Kenya National Museum for analysis and he wrote a report confirming that they were game trophy from the elephant tusks.

45. The Respondent submit that, there was no break in the chain of custody in the handling of the exhibits.

46. On the issue of video evidence, the same was produced as a defence exhibit. The video evidence did not shake the credible, cogent and consistent evidence failed by the prosecution, Infect, the appellants confirmed in their defence that they were in the said motor vehicle KCG 552N, at the time of their arrests which vehicle was shown in the video. In the application dated 24th June, 2019 by Stephen Gachanja, he confirmed to have leased the motor vehicle to the appellants, he availed the car hire agreement and driving license as proof. The agreement and the license were not disputed by the Appellants. They were therefore not innocent passengers as alluded to in their defence.

47. The sequence of events from the time of receiving the report, to effecting of the arrest and handling of the exhibits from the scene to the expert was cogent. The appellant's first ground of appeal therefore fails.

48. As to whether the sentence was excessive? the Respondent submit that the Appellants were handed a custodial imprisonment sentence of 5 years’ imprisonment.

49. That they were sentenced under the provisions of section 92 (4) in Count 1 and 92 (2 in Count II) of the Wildlife Conservation and Management Act of 2013. The sections concern offences relating to endangered or threatened species.

50. Section 92 (2) provides:“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.”

51. Section 92 (4) provides:“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 1. commits an offence 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.”

52. In Count I, the Appellants were sentenced to a custodial sentence of 5 years’ imprisonment, Section 92 (4) provides for a custodial sentence of 5 years’ imprisonment as the minimum sentence.

53. In Count II, the Appellants were sentenced to a custodial sentence of 5 years’ imprisonment, Section 92 (2) provides for a custodial sentence of 7 years’ imprisonment as the minimum Sentence.

54. That, both sentences of 5 years imprisonment in each count was to run concurrently and were lawful sentences. The Trial Court had the discretion to mete out a fine and/or custodial sentence. The discretion of the Trial magistrate was for custodial sentence. The appellants have not demonstrated that discretion was improperly exercised nor that the sentence was illegal.

55. Much as the Appellants submit that, they are first offenders, the Judiciary Sentencing and Policy Guidelines (2023) recognizes wildlife as a significant contributor to the country's Gross Domestic Product through tourism. Offences such as the ones committed by the appellants should be discouraged and the sentence meted by the Court should reflect on the seriousness of the offence and a deterrent to other likely offenders. This was achieved by the Trial Court.

56. On whether the Appellant’s sentence was excessive, it was submitted that the sentence was awarded on mandatory terms and although the Respondent, recognized the jurisprudence in the Philip Mueke case, it was of the view that the sentence was adequate and proportionate in the circumstances.

Duty of the Court 57. The duty of the first Appellate Court is to carefully and critically examine and analyze afresh the evidence presented in the Trial Court and draw its own individual conclusion on the evidence. (See Pandya vs. Republic (1957) EA 336).

58. This Court is equally alive to the fact that it has not heard or seen the witnesses who testified in the subordinate Court and has scrutinized the evidence tendered, corroborated and scientifically proven by the prosecution against the solo defence by both Appellants arguing they were in the vehicle as travelers who were arrested after their driver left them briefly only for the police to pounce and arrest them.

Analysis and Determination. 59. I have refined the issues into two issues,:i.firstly, whether the Prosecution did prove their case beyond reasonable doubt?ii.Secondly whether the sentence imposed was manifestly excessive?

60. On the 1st issue, Appellants anchor their entire Appeal on faulting the Prosecution’s case and pinpointing the contradictions and inconsistencies.

61. The trite law with regards contradictions and discrepancies of evidence is that, inconsistencies unless satisfactorily explained, would usually but not necessarily result in the evidence of a witness being rejected. (See Uganda vs Rutaro {1976} HCB; Uganda vs George W. Yiga {1979} HCB 217). In trying to shade light as to why there might be minor discrepancies between two witnesses testifying on the same case, the High Court of Kenya in Philip Nzaka Watu v Republic (2016) CR APP 29 OF 2015, had this to say:“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the Trial Court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a Court needs to be satisfied beyond reasonable doubt.However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”

62. Again the Court, in Joseph Maina Mwangi versus Republic Criminal Appeal No. 73 of 1993, held, inter alia, that: -“In any Trial there are bound to be discrepancies. An appellate Court in considering those discrepancies, must be guided by the wording of section 382 of the criminal procedure code viz whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences”

63. This Court is bound by the Court of Appeal decision in Erick Onyango Odeng’ v. Republic [2014] eKLR citing with approval the Uganda Court of Appeal case of Twehangane Alfred v. Uganda Criminal Appeal No. 139 of 2001, [2003] UGCA, 6 in which it was held as follows:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The Court will ignore minor contradictions unless the Court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”

64. The role of an Appellate Court in the circumstances as spelt out in numerous cases is to assume the role of the Trial Court, reconcile these and then determine whether they were prejudicial to the appellant and therefore fatal to the prosecution case or were inconsequential to the appellant’s conviction and sentence. See the case of Josiah Afuna Angulu versus Republic, Nakuru CR Appeal No.277 of 2006 (UR) and Charles Kiplang’at Ngeno versus Republic Nakuru CR. Appeal No.77 of 2009 (UR).

65. “Contradiction” was defined by the Court of Appeal of Nigeria in the case of David Ojeabuo vs Federal Republic of Nigeria {2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA. Where the Court stated as follows: -“Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains."

66. In light of the above decisions I am not persuaded that the contradictions and inconsistencies were substantial to the main issue or fatal to the entire case, in fact, the Appellants evidence that, there were other individuals was uncorroborated, the 1st Appellant’s evidence of boarding an unknown vehicle to Nairobi had been debunked by the fact that 1st Appellant had hired the motor vehicle in his own name all in all the defence evidence was an afterthought, totally weak, unbelievable and could not displace that of investigating and arresting officers that the Appellants were the only ones in that vehicle. The 2nd Appellant confirmed that they travelled together with the 1st Appellant and were arrested while inside the vehicle.

67. On the last issue as regards sentence, it is clear that the Court cannot hear an appeal on the severity of sentence. However, the Court can hear an appeal on sentence if it is erroneous in law. An error of law can arise, inter alia, from the manner in which a Trial Court exercises its discretionary jurisdiction on sentencing. If in imposing the sentence the Court acted on the wrong principle of law or committed some errors of law or misdirected itself in some respect, or the exercise of discretion is plainly wrong in the sense, inter alia, that no reasonable Court could exercise its discretion in such a way an appellate Court can interfere with the exercise of judicial discretion on the principles stated in Mbogo v Shah [1968] EA 93. )

68. In Evans v Bartlam [1937] AC 473, a decision of the House of Lords cited by Sir Clement De Lestang V.P. in Mbogo v. Shah, (supra) Lord Atkin said in part at p. 480-481:“..and while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that it will not interfere with the exercise of the judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and duty to remedy it.”

69. Lord Atkin’s dictum to the effect that the power of an Appellate Court to interfere with the exercise of discretion by a Trial Court is not limited to only consideration of the ground of error of law and can interfere on other grounds to avoid injustice, has often been cited as representing the modern thinking.

70. The severity of imposition of sentence must be argued with clarity showing how excessive the sentence is as is imposed by the Trial Court is, the same was lacking in this instance.

71. Courts must prioritize considering fines as a sentencing option before resorting to custodial sentences. If a fine is deemed unsuitable, the Court should clearly state the reasons.

72. The sentence provided for the offence Section 92 (2) and 92 (4) of the Wildlife Conservation and Management Act of 2013 is;Section 92 (2) provides;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.Section 92 (4) provides;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 1. commits an offence 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.

73. In this instance I find that, the Trial Magistrate was in err, by not affording the Appellants who were 1st time offenders, a fine and an alternative to imprisonment with regards to the conviction on count two and not recording her reasons for this deprivation.

74. This Court accordingly finds the Appeal on conviction to be without merit and the same is accordingly dismissed.

75. The Conviction is confirmed and find Partial Success on the Appeal against sentence thus basis to vary and set aside the sentence only to the extent that the Appellant were not afforded the penal sanction of fine as is provided for under Section 92(4).

76. The Sentence imposed on the Appellants on Count One of Imprisonment for 5 Years remains unaffected.

77. In the end, I exercise my revisionary jurisdiction and substitute the sentences as follows: -Count 2a.The 1st Appellant, is Ordered to Pay a fine of Kshs 3,000,000/= upon default, he shall serve 5-year imprisonment sentence.b.The 2nd Appellant, is Ordered to Pay a fine of Kshs 3,000,000/= and upon default, he shall serve 5-year imprisonment sentence.c.The default Sentence in Count No, 2 shall run concurrently with the Imprisonment Sentence in Count No, 1.

78. The Sentence shall run from the 6th June, 2019. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 23RD DAY OF SEPTEMBER 2024. ...............................MOHOCHI S.M.JUDGEOndabu & Co. Advocates, for the AppellantsMs Jackline Kisoo Snr Prosecution Counsel, for the state