https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10121

Mwikali v Republic (Criminal Appeal E001 of 2025) [2026] KEHC 10121 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 10121 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E001 of 2025 RA Oganyo, J July 3, 2026 Between Martha Mwikali Appellant and Republic Respondent Judgment Introduction 1.The Appellant herein, Martha Mwikali, was charged as the 2nd accused person in Makindu Resident Magistrates Court criminal case No. E690 of 2021. She faced one main count of being in possession of a wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act of 2013. 2.The particulars of the offence were as follows;Being in possession of a wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act of 2013On the 10th Day of August 2021 at Kibwei township in Kibwezi sub-county within Makueni county, were found being in possession of 10Kg of wildlife trophy namely Elephant tusks valued at Kshs. 800,000/= without authority from the director general Kenya Wildlife Services. 3.When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged in the offence. She was subsequently sentenced to 7 years in prison. The Appeal 4.The Appellant herein was aggrieved by the conviction and sentence. She filed a Petition of Appeal dated 26th May, 2025 with the following grounds:a.That the learned Magistrate erred in law and fact by convicting and sentencing the Accused/Appellant to serve 7 years imprisonment based on evidence from witnesses who did not positively identify the accused at the alleged scene of crime and whose evidence was not corroborated by any civilian witness(es).b.That the learned Magistrate erred in law and fact by failing to require the prosecution witnesses to produce the call data and signal information they allegedly claimed to have relied on to locate, trace and arrest the Appellant and ended up in erroneously convicting and sentencing the Appellant to 7 years imprisonment.c.That the learned magistrate erred in law and fact by failing to consider proof beyond reasonable doubt as is the principle in criminal law and convicted and sentenced the Appellant to 7 years imprisonment based on a balance of probability.d.That the learned magistrate erred in law by convicting and sentencing the Appellant for 7 years imprisonment without considering and appreciating mitigation of the Appellant.e.That the learned magistrate erred in law by convicting and sentencing the Appellant for 7 years imprisonment without considering and appreciating mitigation of the Appellant. 5.This Court was then urged to allow the appeal. During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions. 6.The prosecution relied on the lower court record. Analysis 7.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 8.This was aptly stated in the case of Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect. 9.Before dealing with the said aspects of the offence, the Court will render a very brief recount of the evidence adduced at the trial. The prosecution called a total of four witnesses in a bid to establish the charge of in possession of a wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act of 2013. PW 1, Naftali Koech, testified that ON 10/08/2021 he got a call from Biglife and David Shedrick who informed him that they got a report from a good Samaritan that there was someone looking for a buyer of trophy at Kibwezi. That he and his colleague travelled to Kibwezi, arriving at 3:00 pm and waited in a concealed vehicle until 7:00 pm. Upon receiving a signal from their in-charge, they alighted from the vehicle and found two people carrying a sack. PW1 stated a lady was holding the sack. He inspected the sack and found two pieces of ivory. Both the Appellant and the 1st accused were arrested and taken to Kibwezi police station. 10.PW2, Dr. Ogeto Mbebi, a research scientist at the National Museum of Kenya, testified that he examined two animal remains brought to him on 18th August 2021. He established they were elephant tusks from the same elephant using comparative anatomy and cross-section analysis. He produced a report dated 24th August 2021. 11.PW3, Lemaboko Kupore, also a Kenya Wildlife Service ranger, corroborated PW1’s account. He testified that they received a report of two people in possession of two green sacks suspected to contain elephant tusks, that they arrived at Kibwezi and waited until 7.00 p.m., and that the woman was walking in front of the man and was the one carrying the sack. He stated that the vehicle they used was hidden away from the scene and that they laid an ambush before arresting the two. On cross-examination, he conceded that he had no prior description of the suspects beyond being told of “a woman and an old man”, that no civilian witness was called, and that no photographs were taken at the scene of arrest. 12.PW4, CPL Lameck Otieno Ogolla, the investigating officer, testified that he was informed by his colleagues that they had arrested two suspects in possession of ivory placed in two manila sacks, and that upon interrogation the 1st accused indicated that he was the owner of the ivory while the Appellant informed him that she was searching for a buyer. He prepared an inventory which was signed by the arresting officers and the Appellant, and thumb-printed by the 1st accused. He produced the inventory, the two manila sacks and the exhibit memo as exhibits. 13.In her defence, the Appellant gave sworn evidence. She stated she was coming from her in-law's place at Kathonzweni on the material day. She arrived at Kibwezi between 6:00 and 7:00 pm and passed through the D.O. path. She was accosted by unknown persons who did not identify themselves, and taken to where there was a sack. She denied knowledge of or possession of any elephant tusks. She stated that many other people were present and ran away, and she was the only one arrested. 14.The trial court found the Appellant and the co-accused guilty and sentenced them accordingly. 15.Having set out the background, this Court has distilled two main issues for determination, 16.namely;a.Whether the Appellant was properly and positively identified as the person found in possession of the wildlife trophy; andb.Whether the prosecution proved its case against the Appellant beyond reasonable doubt. Whether the Appellant was properly and positively identified as the person found in possession of the wildlife trophy; 17.The Appellant’s principal complaint, canvassed under grounds (i) and (iv) of the Petition of Appeal, is that she was not positively identified by the prosecution witnesses as the person found in possession of the wildlife trophy, and that the circumstances of her arrest did not favour a safe identification. 18.This Court is alive to the principle that where a conviction rests on identification, the trial court must satisfy itself that the conditions favoured a correct identification and that the evidence is free from the possibility of error or mistaken identity. This is particularly so where, as here, the witnesses were strangers to the accused and the identification was made in circumstances of urgency and tension. The same was affirmed by the Court of Appeal in Wamunga vs Republic (1989) KLR 426. 19.It is not disputed that PW1 and PW3 did not know the Appellant prior to the date of the offence. They testified that upon receiving word from their in-charge that two suspects, a lady and an old man, were on the road leading to the DC’s office, they alighted from their vehicle and found the Appellant and her co-accused walking together in possession of a green sack, which on inspection was found to contain two pieces of elephant ivory. 20.The Appellant was arrested at that very point, in the act of being found with the trophy, and was the same person arraigned, tried and identified in court by the witnesses as the woman they arrested on 10/08/2021. The evidence of arrest at the scene, as opposed to subsequent visual identification of a suspect picked from a crowd, considerably reduces the risk of mistaken identity that the Appellant complains of. 21.The Appellant made much of the minor discrepancies in the witnesses’ description of the precise spot of arrest, namely whether it was on the road leading to the DC’s office, near the KCB Bank, or next to the DO’s office. This Court finds these to be peripheral matters that do not go to the root of identification. 22.Accordingly, this Court finds that the Appellant was properly and positively identified as the person found in the company of the 1st accused and in possession of the wildlife trophy on 10/08/2021. This ground of appeal fails. Whether the prosecution proved its case against the Appellant beyond reasonable doubt. 23.The appellant was charged with the offence of being in possession of a wildlife trophy contrary to Section 95 of the Wildlife Conservation and Management Act 2013 which provides as follows:“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.’’ 24.Accordingly, elements of the offence to be proved are:a.Possession of a trophyb.Lack of a permit or exemption under the Act 25.The prosecution adduced evidence to establish that the appellant, jointly with others, was found in possession of wildlife trophies, contrary to Section 95 of the Wildlife Conservation and Management Act. On the question of possession, the evidence of PW1 and PW3 was that the Appellant was found carrying the sack containing the ivory at the time of arrest. PW2’s evidence, which was not controverted, established that the items recovered were indeed two elephant tusks from the same elephant, an endangered species. 26.This was further corroborated by the inventory prepared on the material day and signed by 27.the Appellant. No permit or exemption was produced or claimed by the Appellant to justify her possession of the trophy. 28.On this score, this Court finds, that the prosecution established possession and the absence of lawful authority. 29.The Appellant urged this Court to find that the failure by the prosecution to produce call data, photographic evidence, fingerprint or DNA analysis, and the failure to call the informer Limo or any independent civilian witness, fatally undermined the prosecution’s case. 30.While corroborative evidence of that nature would undoubtedly have strengthened the prosecution’s case, its absence is not, on its own, fatal where the direct evidence of the arresting officers, who witnessed the Appellant in physical possession of the trophy at the point of arrest, is found to be credible. This position was adopted by the High Court in a similar case of Mwangi v Republic (Criminal Appeal E143 of 2024) [2025] KEHC 3768 (KLR) (25 March 2025) (Judgment). 31.I therefore find that the trial court properly evaluated the evidence before it and arrived at the correct verdict. The ground of appeal also fails. 32.On conviction, the Appellant was sentenced to 7 (seven) years in prison. During the sentencing, the court considered the pre-sentence report on record, that she was a first offender and the applicable law. 33.For the foregoing reasons, this court hereby declines to interfere with the sentence of the trial court. The appeal is found to be lacking in merit and is dismissed in its entirety.Orders accordingly.Right of appeal 14 days DATED, SIGNED AND DELIVERED VIA TEAMS AT NAIROBI THIS 3RD DAY OF JULY, 2026.………………………..HON. R. A. OGANYO, MRSJUDGE.In the presence of: -Court Assistant…... E, SanaAppellant called…. PresentODPP…. N/AMr. Mwendwa for the Appellant