[2022] KEHC 15107 (KLR)

Mereipie v Republic (Miscellaneous Criminal Application E015 of 2022) [2022] KEHC 15107 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15107 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Miscellaneous Criminal Application E015 of 2022

CM Kariuki, J

November 10, 2022

Between

John Leyiani Mereipie

Appellant

and

Republic

Respondent

(ARISING FROM (In The Senior Principal Magistrate Maralal CR NO. 61 OF 2020)

Judgment

1. The 2nd count which now involved the Appellant and subject of this appeal is that he was charged with the offence of dealing in Endangered species Contrary to Section 92(2) as read with Section 105 (a) and 105(b) of Wildlife Conservation and Management Act No 47 of 2013.

2. Particulars of the charge being that on the on 12th day of February 2020 at around at Lpus area along Wamba-Maralal murram Road in Samburu East Sub-County within Samburu County was found transporting suspected endangered tree species namely East African sandalwood (Osiris Lanceolata) weighing approximately 500kgs with a street value of Kshs 1,000,000/= using a motor vehicle registration number KAN 158L make Mitsubishi Pajero blue in colour without permit from Director of General Kenya Wildlife Service.

3. He pleaded not guilty and matter went into full hearing. The prosecution called a total number of six (6) witnesses where after the appellant was placed on his defence and opted to give sworn evidence and did not call any witness. The Appellant was found guilty and was sentenced to serve seven (7) years imprisonment on the 17th May, 2022.

4. Aggrieved by the conviction and sentence of trial court, the Appellant filed a Petition of Appeal dated 13th October, 2022 and filed on the same day and hence this Appeal wherein he has enumerated five (5) grounds of appeal.

5. Grounds of Appeal in Petition Appeala)That the Honourable Learned Magistrate erred in law and fact in holding that the charges against the Appellant had been proven beyond reasonable doubt without corroboration evidence being presented by the prosecution.b)That the Honourable Learned Magistrate erred in law and fact in failing to acknowledge that the evidence presented by the prosecution did not meet the threshold of proof beyond reasonable doubt with the evidence of PW1 and PW2 being contradictory.c)That the Honourable Learned Magistrate erred in law and fact in failing to appreciate that the defence rendered by the Appellant which was not rebutted by the prosecution.d)That the Honourable Learned Magistrate erred in law and fact in failing to consider the weighty defence presented by the Appellant and making proper consideration before arriving at the guilty verdict.e)That the Honourable Learned Magistrate erred in law and fact in failing to consider that a conviction on the charges that faced the Appellant carried a hefty sentence

6. Summary of Evidence Tendered.

7. The prosecution called six (6) witnesses in support of the charges. PW2 Mohammed H. Kelosho and PW3 Benard Moseti are KWS rangers who were stationed at Wamba KWS offices at the material time. Their testimonies together both are similar. According to the two witnesses they had been called by their superior and informed that two vehicles had been seen and it was believed that the same could be involved in criminal activities. The officers were instructed to lay an ambush around Lpus area along Wamba-Maralal Road.

8. The two witnesses told the court that at around 2. 40 a.m. they saw two vehicles approach and ordered them to stop. The lead vehicle was Toyota Land Cruiser registration no. KCU 228H and followed by KAN 158L. The drivers of the two vehicles did not stop as ordered but drove on. A chase ensued and shortly the rangers caught up with them. Upon search on the two vehicles sandal wood was found 1. 2 kg in the first vehicle and 500kg in the next one.

9. The two witnesses acting on instructions from their superior escorted the vehicles and the occupants to Wamba Police station and impounded the two vehicles. The first and 2nd accused were in motor vehicle KCU 228H and the third accused was the sole occupant of KAN 158L.

10. PW4 Titus Lengor Tuwot a resident of Tangulbei in Baringo testified and told the court that he was the owner of the Motor vehicle registration number KCU 228H and that the 1st accused and 2nd were his driver and conductor respectively. He told the court that his vehicle was on a lawful mission to deliver building material to a construction site in Laikipia. He produced a log book to prove ownership as well as an L.S.O to show that he had been lawfully engaged. His testimony was that the two accused person had no authority to transport unlawful cargo and that the two were on a frolic of their own.

11. PW5 No 111854 PC Joto was on duty on 12/2/2020 when he was informed by his OCS of some arrest that had been made by K WS officers. He re-arrested the three accused and booked them after that the two vehicles impounded in connection with the offence had been secured.

12. PW 1 Wycliffe Mauta received samples forwarded to him vide exhibit memo exhibit 4(a) dated 3/3/2020 being eleven (11) pieces of wood parked in Brown envelope marked B and seven (7) pieces of wood parked in Brown envelope marked 'A'

13. According to his report exhibit 2(a) and 5(b) both feature of the exhibits were observed to have the same identical features to those of Osiris Lanceolata (Sandal wood) and therefore identified to be Osiris Lanceolala (Sandal wood).

14. PW6 Corporal Guylord Amayamu the investigating officer in this case testified and told the court that he was informed by PC Joto of arrests made by KWS officers and two motor vehicles loaded with what was believed to be sandal wood. The two vehicles were Toyota Land Cruiser KCU 228H and KAN 158L. He took the inventory of the two vehicles which was duly countersigned by the accused person.

15. Samples of the wood was forwarded to Nairobi for examination to ascertain the nature of the wood recovered from the two motor vehicles. The report on the samples submitted for analysis and produced by PW 1 found that the samples were those of East African Sandal wood. The witness produced as exhibits the two motor vehicles, inventory, weighing certificate in respect of the two motor vehicles. He also produced search conducted to establish the ownership of the two motor vehicles.

16. Based on the prosecution case, the trial court ruled that the three accused persons had a case to answer. All the accused elected to give sworn testimonies as summarized herein below.

17. DW3 now the appellant who worked as a nurse in Nyeri County and also does some farming. He told the court that on 11/2/2020 he had travelled to Wamba Town to sell potatoes and cabbages when a lady that afternoon approached him. The lady asked him where he was headed to because she wanted him to help transport some pieces of wood to Nakuru as her vehicle had broken down.

18. They agreed on amount and a deposit of 10,000 paid to him. They went to where the wood was in a heap and loaded onto his vehicle. The lady left for Wamba and he was directed to the road by a boda boda rider. At 2. 00 a.m. they were arrested and escorted to Wamba Police station where the charges were preferred. He told the court that he had never seen the lady before.

19. The parties were given Directions to canvass Appeal via submissions which were filed and exchanged.

Appellant Submissions 20. The Accused person upon taking plea denied the charges prompting a trial. The prosecution proceeded and called a total of six (6) witnesses to prove the charge against the Accused persons.

21. It is the Appellant's submission that the trial court arrived at its decision without taking into consideration the Defence evidence on record and by shifting the burden of proof to the Defence and or reaching its decision without requiring the prosecution to prove its case beyond reasonable doubt as required by Criminal Law Procedure.

22. It is submitted that Appellant only mistake was agreeing to transport the said pieces of wood at the request of the woman who claimed that her motor vehicle had broken down. The Appellant admitted to being in possession of the said pieces though not the exact quantity relied upon during the conviction and sentencing.

23. It is the Appellant's submission that the Prosecution needed to have called evidence to prove that apart from the act of transporting the sandalwood, the Appellant was also involved in the act of dealing with the endangered species by tendering evidence to disapprove the defence of only being in possession of the said woods.

24. Reliance is made on the cases of Republic v Gachanja [2001] eKLR as cited In Republic v Philemon Chemas [2014] eKLR at page 9 (copy annexed for My Lady's perusal) and Ndeka v Republic (Criminal AppealE007 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. ……..”.

25. Additionally, when the appellant was arrested their defence is clear, that they were requested to carry timber for a lady, timber that was meant for the manufacture of toothpicks. The prosecution did not adduce any evidence to show if the lady was ever found, probably she could have cleared the prosecution case.

26. The prosecution's evidence was contradictory from the beginning and as such, the Honourable Magistrate had no business in relying on the same to convict and sentence the Appellant.

27. Apart from PW1, who is a Forest technologist, all the other witnesses are officers from the disciplined forces, whose evidence should be airtight. To point out the contradictions:

28. 6.2. 3. At page 12 paragraph 20 of the record of appeal, PW2. Ranger Mohammed K. Kelosho, during cross examination he states as follows...“We put on uniform depending on the day. The incident took place during a dry season. The suspects stopped when they realized we were rangers. The security in the area is not very good."

29. Page 13 paragraph 20 of the Record of appeal, PW3. Ranger. Bernard Moseti states as follows:“At around 2. 40 am, we saw headlights of two motor vehicles following each other closely. We tried to stop the motor vehicles but they passed where we were in a high speed. We decided to follow the motor vehicles while honking on motor vehicle horn. We got up with the motor vehicles after about 1Km and stopped the motor vehicles."

30. The two officers were in the same team, executing the same mandate, and they all described two different scenarios. One which paints a picture that the area is insecure and when the suspects realized that they were rangers, they stopped, and the other one that depicts the accused persons to be hardened criminals, who drove past Rangers, despite being stopped, causing the rangers to purse them for one Kilometre.

31. Page 11, paragraph 30, PW2 states as follows....“I can see the weighing certificatePMFI-8. I signed it on 12/2/2020. I did not see the motor vehicle being weighed. I signed the weighing certificate without seeing the motor vehicle being weighed."PW 1, PW 2 & PW3 (a Ranger and one of the officers arresting the appellant) were all not present at the time the said sandalwood was weighed, however, they are certain about the weight, they signed PMF18 weighing certificate yet they were not present at the time the sandalwood was weighed. Upon cross examination, PW3 confirms that the said cargo was not weighed, but estimated, the value was equally assigned by estimation! Yet, there is a certificate of weighing.

32. During cross examination PW2 states....“I have worked with Kenya Wildlife Services for 5years. A person n who has not worked with Kenya Wildlife Service will not identify Sandalwood."The prosecution did not endeavour to establish if for sure the appellant knew what he was carrying as sandalwood, or simply timber for manufacturing toothpicks in Nakuru.

33. At Paragraph 30 of page 13 of the record of appeal, PW3 Ranger Bernard Moseti, prior to the date of this arrest, he had worked for KWS for one year, and in his examination in chief, he states….“The wood was suspected to be sandalwood--- I don't know how sandalwood looks like."This is a Ranger who cannot tell how sandalwood looks like, and yet he has arrested the appellant Who is a nurse, and testifies against him for trafficking of endangered species, which he expects him to have known it to be sandalwood.

34. The evidence of PW5 is of great importance, He stated that he was called by his superior one Inspector Mohamed Okicha at 5. 30 a.m. he is the one who rearrested the appellant and his co-accused persons and detained their motor vehicles. In cross examination, he states that he does not recall the date when the samples were taken, but only recalls that it was during the day and not sure about the time. He is not sure if the sandalwood was weighed as the station does not have a weighing scale.

35. In page 23 paragraph 10 and page 24 paragraph 10 of the record of appeal PW6. The Investigations officer states that the suspected sandalwood was weighed in the presence of other police officers and names Kelesho PW2 who stated in page 1 1 paragraph 30 as follows: "I can see the weighing Certificate —PMF18. I signed it on 12/2/2020. I didn't see the motor vehicle being weighed. I signed the weighing certificate without seeing the motor vehicles being weighed"

36. PW6 states that the value of the sandalwood was given by wildlife officer, however, none of the officers has testified as to the Valuation of the sandalwood, nor was there a certificate of valuation.

37. The statement by the rangers PW2 and PW3 who both state that on 11th February 2020, they were called by their superior and informed them that he had received information that two motor vehicles had been spotted at Nkare Narok, and made arrangements for them to go and lay an ambush and they were briefed on how "to do the work"

38. , the work here involves the following contradictions:a)The cooperation of the suspects when stopped by the rangers, they have both given contradictory recollections.b)The weighing of the sandalwood, to apportion what amount of sandalwood was found in which vehicle. The 10, (PW6) lied on oath, trying to justify how the weighing was done using a borrowed weighing scale, and yet the very officer ( Kelosho, PW2) whom he claims was present, signed the weighing certificate without witnessing the weighing. PW3 did not also sign the weighing certificate without witnessing the weighing. He also contradicts the arresting officer who confirms that he is not sure if weighing was ever done.c)There was never a valuation; the officers did not carry out any valuation of the said sandalwood, for them to apportion any value.

39. The conviction herein, to be set aside the sentence of the Trial court and set the Appellant free as conviction and sentence in Maralal Criminal Case No 61 of 2020 was based on contradictory evidence adduced by the Prosecution and the Learned Magistrate only choose to select part of the evidence to suit the premeditated decision he arrived at.

40. The Trial Magistrate did not consider the Appellant's mitigation and proceeded to impose a manifestly harsh and excessive sentence given that the prosecution's case was not proved beyond reasonable doubt as required in Criminal Law.

41. Further, on page 39 of the record of appeal, the learned Magistrate admits in his judgement that the prosecution's case against the Appellant was that he was transporting the suspected endangered species which position was confirmed by the Appellant in his defence before the trial court wherein he testified that he was requested by a lady he met on that day to transport the wood to Nakuru and he was only caught while transporting the wood, which he had every reason to believe that were firewood and did not have any knowledge that the same was sandalwood. This evidence was not rebutted by the prosecution nor any evidence provided to show that apart from being in possession of the sandalwood, the Appellant was dealing in them as per the contents in the charge sheet.

42. It is trite law that the court cannot set aside the trial court's sentence unless the court is satisfied that the subordinate court acted on wrong principles or overlooked some material factors. Reliance- is made on the case of Ogolla s/o Owuor v Reginum [1954] EACA 270 .

43. It is worth noting that the charge as stipulated Section 92 (2) and 92 (3) of wildlife conservation and Management Act No 47 of 2013 are of great similarity and they read as follows; (2)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

(3)Any person who, without permit or exemption issued under this Act, deals in a live wildlife species of any of critically endangered or endangered species as specified sin the Sixth Schedule or listed 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 three years.a)No explanation whatsoever has been given or any evidence thereof to prove why the prosecution decided to charge the accused person with the offence under section 92 (2) and not 92 (3) despite him having been only found transporting the said woods and having raised a very good defence in his witness statement at the time of booking.b)The charge against the accused person is fatally defective since he was improperly charged under Section 92 (2) as read with section 105 (a) and 105 (b) of wildlife conservation and management act No 47 of 2013 since all the statement of facts and the evidence adduced does not in any way link the Appellant to the said charge.c)It is evident that the statement of offence and particulars are at variance. Further, the prosecution adduced evidence in proof of another offence which evidence has been captured in the judgement of the trial court wherein it is expressly admitted that the prosecution case was that the Appellant was only transporting the sandalwood. The said offence is well provided for in the Act under Section 92 (4) which reads "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 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." The prosecution ought to have amended the charge sheet so as to reflect the correct offence. This cardinal procedure was omitted and the Accused person was tried and sentenced on a wrong offence based on a defective charge sheet.d)There is no doubt that the prosecution was squarely to blame for the premature death of the case. It failed to seize the earliest opportunity to salvage the case by amending the charge sheet. It must shoulder the responsibility of its mistake. Punishing the Appellant on an offence which he was never charged and/or basing on a charge which is defective and was not proved is highly prejudicial to the Appellant and against the principles natural justice.

Respondents Submissions 44. As to whether the learned Magistrate erred in law and fact in holding that the charges against the Appellant had been proved beyond reasonable doubt without corroboration evidence being presented by the prosecution, and submit that the prosecution evidence as well corroborated in that PW 2 and PW 3 are KWS Rangers stationed at Wamba KWS Offices and were informed that there were two motor vehicles seen and were believed to be involved in criminal activities.

45. The officers laid an ambush on the 12th February, 2020 at around 2. 40a.m. and gave chase on the two motor vehicles namely Toyota Land cruiser Registration No KCU 228H which had two occupants namely the 1st and 2nd accused in the lower court and motor vehicle registration No KAN 158L Mitsubishi Pajero and upon searching them, they found 1st motor vehicle ferrying 1. 2kg of sandal wood while the appellant’s motor vehicle which he was driving was carrying 500 Kg of the same sandal wood.

46. Further, PW 1 produced exhibits 2(a) and 5(b) which were reports from the Government Analyst where 11 pieces of wood and 7 pieces were picked randomly and upon examination were found to have identical features to those of Osiris Lanecolata (sandal wood). These were picked form the motor vehicles in which all the accused had been search was also produced by PW 6 establishing ownership of the two subject motor vehicles. he also produced the two motor vehicles as exhibits, inventory and weighing certificate with respect to the said subject motor vehicles.

47. This evidence met the threshold for the offence was well proved and corroborated.

48. The Appellant in his defence placed himself at the scene and confirmed that motor vehicle registration No KAN 158L is his and that a lady contracted him to carry pieces of wood she wanted transported to Nakuru because her motor vehicle had been broken down.

49. They agreed at a fee of Kshs 30,000 and was given a deposit of Kshs 10,000 for fuel.

50. He confirms that the wood was loaded onto his motor vehicle and confirms he was arrested 2. 00a.m.

51. The court to find that the Appellants defence was an admission in that ignorance of law is not admitted.

52. The court then appreciated the defence rendered by the Appellant in that it was one of admission and ignorance of law cannot be aiding the Appellant who in his testimony stated he is a nurse who is expected to know and distinguish between a wrong and correct act or deed. Hence the conviction and sentence were proper in the circumstances for the seven (7) years imprisonment is a lawful sentence based on the charge he faced in the lower court.

53. Based on the observations above, the respondents submit that the prosecution was able to prove its case beyond reasonable doubt and that the appellant’s appeal be dismissed as it is unmerited and support the finds the trial court fully and plead with this court to upon conviction and sentence.

54. Section 92(2) with which the accused person is charged provides as follows:“Any person who without permit or exemption issued under this Act, deals in Wildlife trophy of any critically endangered or endangered species as specified in the 6th schedule or listed under CITES, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than 7 years.

55. The accused is charged under section 92(2) as read with section 105(b). It is the prosecution case that the first two accused persons were dealing in endangered species while the appellant person was transporting suspected endangered species.

56. It is the prosecution case that on 12/2/2020 at around 2. 00 a.m. in Lpus area along Wamba Maralal Road, the three accused persons were arrested and a search established that they were carrying what was then suspected to be Sandal Wood. The samples were taken to Government Labs in Nairobi an examination established that indeed the wood recovered from the accused persons was that of endangered species to wit Sandal Wood. The exhibits were produced in court. The accused persons do not deny in their respective sworn testimonies that they were found with the Sandal Wood but that they did not know that what they were carrying was the prohibited wood.

57. The 1st Accused in his defence told the court that he had transported cement to an ongoing construction site in Laikipia County and while on their return back a lady approached him. She told him that her vehicle had Mechanical Problems and sought his assistance to transport some wood from Wamba area. The 2nd accused who was a conductor and bears little responsibility in decision making corroborated the evidence of DWI.

58. D W3 on his part told the court that he too was requested by a lady he met on that day to transport the wood to Nakuru. He accompanied the lady to where the wood had been stored agreed on the amount and was paid Kshs 10,000/= as deposit to enable him buy fuel.

59. On his way back, they were stopped by Kenya Wildlife Service officers, arrested and escorted to Wamba Police Station.

60. All the accused persons in one way or the other in their respective defences admit to having been found transporting the prohibited Sandal Wood pleading that they did not know that it was illegal. Ignorance of law is no defence. The 1 st and appellant are the authors of their own misfortune. The two agreed to 'help' the lady transport the wood for a consideration of Kshs 30,000/= without carrying due diligence on the mission ahead.

61. Issues, Analysis And Determination 62. After going through the evidence tendered and the submissions on record, I find the issues are; whether the prosecution its case any beyond reasonable doubt? Was appellant defence considered? Whether the sentence was excessive in the circumstances?

63. It is trite law that the 1st Appellate Court must reconsider the evidence, evaluate it and draw its own conclusion. See Kerumpoti Leiyan v Republic [2016] eKLR. 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 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

64. Section 92(2) with which the appellant was charged provides as follows:“Any person who without permit or exemption issued under this Act, deals in Wildlife trophy of any critically endangered or endangered species as specified in the 6th schedule or listed under Cites, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than 7 years.

65. The standard of proof placed on the prosecution at trial is to prove the guilt of the accused persons beyond reasonable doubt and this was stated in the case of Republic v Gachanja [2001] eKLR as cited in Republic v Philemon Chemas [2014] eKLR the court held that;the Cardinal principle of law is that the burden of proof of guilt of the Accused person lies on the prosecution and that an accused person assumes no burden to prove his innocence. Such burden of proof must be beyond any reasonable doubt, a standard the Prosecution in the trial court failed to meet.

66. The appellant case is that, the Prosecution's evidence did not meet the threshold to warrant a conviction on the charge that was levelled against the Appellant. On the other hand the respondent submitted that the prosecution evidence met threshold as it was well corroborated in that PW 2 and PW 3 KWS Rangers stationed at Wamba KWS Offices on being informed that there were two motor vehicles seen and were believed to be involved in criminal activities laid an ambush on the 12th February, 2020 at around 2. 40a.m. and gave chase on the two motor vehicles namely Toyota Land cruiser Registration No KCU 228H which had two occupants namely the 1st and 2nd accused in the lower court and motor vehicle registration No KAN 158L Mitsubishi Pajero and upon searching them, they found 1st motor vehicle ferrying 1. 2kg of sandal wood while the appellant’s motor vehicle which he was driving was carrying 500 Kg of the same sandal wood.

67. Appellant counsel submits that the appellant only mistake was agreeing to transport the said pieces of wood at the request of the woman who claimed that her motor vehicle had broken down. The Appellant admitted to being in possession of the said pieces though not the exact quantity relied upon in evidence.

68. The appellant defence was that, on 11/2/2020 he had travelled to Wamba Town to sell potatoes and cabbages when a lady that afternoon approached him. The lady asked him where he was headed to because she wanted him to help transport some pieces of wood to Nakuru as her vehicle had broken down.

69. They agreed on amount and a deposit of 10,000 paid to him. They went to where the wood was in a heap and loaded onto his vehicle. The lady left for Wamba and he was directed to the road by a boda boda rider. At 2. 00 a.m. they were arrested and escorted to Wamba Police station where the charges were preferred. He told the court that he had never seen the lady before.

70. The appellant thus he was in possession of the timber being a cargo of a lady hirer though not necessarily that he knew the nature of timber.

71. The ingredients of offence to be established are for dealing under section 92(2) beyond reasonable doubt as analysed in evidence on record which seem to tilt into the realm of the ingredients of the offence of possession under section 92 (4) of the Act.

72. It is noted that the Wildlife Conservation and Management Act No 47 of 013 does not define the term possession, thus definition is sought from the Penal code and other sources.“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”“Possession is defined under Section 4 of the Penal Code in the following languages.Section 4 of the Penal Code defines 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 are the elements of dealing and possession as per the provisions employed in the two categories of the offences 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 recognizable 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 but the ODPP 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? Finger print evidence may be necessary, and continuity of exhibit handling will be vital.

73. The aforesaid analyzed evidence and law puts 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.

74. In the case of Ndeka v Republic (Criminal AppealE007 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 appellnt 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. ……….”.

75. The court finds that the ingredients of offence of dealing the charge sheet was 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 appellant was charged. Thus, the consequence is whether the offence of possession under section 92(4) is lesser cognate offence to dealing under section 92(2).Section 179 of the Criminal Procedure Code provides as follows:“179. (1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and the combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.(2)When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence 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 offence, even though he was not charged with that offence. 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 convict the appellant of an offence with which he was not charged. An accused person charged with a major offence may be convicted of a minor offence if the main offence and the minor offence are cognate; that is to say, both are offences that are related or alike; of the same genus or species. To sustain such a conviction, the court must be satisfied on two things. First, that the circumstances embodied in the major charge necessarily and according to the definition of the offence imputed by the charge, constitute the minor offence. Secondly, that 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) EA 171 and Wachiras/oNjenga v Regina (1954) EA 398). Spry, J. explained the essence of the first consideration as follows in Ali Mohammed Hassani Mpanda v Republic [1963] EA 294, 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 offence charged, finds one or more not to have been proved, finds that the remaining ingredients include all the essential ingredients of a minor, cognate, offence (proved) and may then, in its discretion, convict of that offence. “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 offence. It is a decision premised on the discretion of the court based on the evidence adduced at the end of the trial.” [Underlining mine].

76. The appellant in his defence told the trial court that he was requested by a lady he met on the material day to transport the wood to Nakuru. He accompanied the lady to where the wood had been stored agreed on the amount and was paid Kshs 10,000/= as deposit to enable him buy fuel. On his way back, they were stopped by Kenya Wildlife Service officers, arrested and escorted to Wamba Police Station. He was arrested while in possession of the prohibited Sandal Wood though pleading that he did not know that it was illegal. It is necessary to prove knowledge of possession of an article, not necessarily the nature of the article seeWildlife, forestry and Fisheries Offences in Kenya supra.(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 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 10TH DAY OF NOVEMBER 2022. ........................................CHARLES KARIUKIJUDGE