https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10844

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CRIMINAL APPEAL NO E027 OF 2025** **MOKI MUTI……………………………………………………APPELLANT** **VERSUS** **REPUBLIC…………………………………………..……..RESPONDENT** ***(Being an Appeal from the Original Judgment of the Hon. Mbicha SPM, delivered on 3rd February, 2025 in Criminal Case no. E258 of 2024 at Makindu).*** **JUDGMENT** 1. This is an appeal against conviction and sentence in criminal case No.E258 of 2024 at makindu.The Appellant, Moki Muti, was charged before the Senior Principal Magistrate’s Court at Makindu with the offence of dealing in wildlife trophy of an endangered species without a permit or other lawful exemption, contrary to section 92(2) of the Wildlife Conservation and Management Act, Cap 376, and in the alternative, with being in possession of a trophy of an endangered wildlife species, contrary to section 92(4) of the same Act. 2. The particulars of the charge were that on the 15th day of March,2024 at around 0030hrs at Kinyambu area, Kibwezi East Sub-County, the accused was found dealing in trophy of endangered wildlife species, namely, Two pieces of elephant tusks weighing approximately 4,2 kilograms in a nylon sack without permit from the Director General, Kenya Wildlife Service, with a street value of Ksh.1.5 million. 3. After the trial, judgment was delivered on 3, February,2025 wherein the Appellant was found guilty and convicted of the alternative count of being in possession of trophy of endangered species contrary to section 92(4) of the Wildlife Conservation and Management Act, Cap 376. The accused was sentenced to five (5) year’s imprisonment. 4. Aggrieved by the trial court Judgment the accused filed his undated memorandum of appeal raising the following grounds: 5. THAT the learned trial Magistrate erred in points of facts and law by convicting the Appellant on evidence that didn’t meet the minimum threshold required in a criminal suit 6. THAT the learned trial Magistrate erred in both fact and law by shifting the burden of proof to the Appellant which is contrary to the provisions of the Evidence Act, Cap 80 Section107. 7. THAT learned trial Magistrate erred in both law and fact by holding that the prosecution evidence had the probative value to sustain a s safe conviction without further corroboration. 8. During the hearing of this case, the prosecution called four witnesses. PW1, David Chomba, was a KWS Ranger attached to Tsavo West Kogoi Plateau. PW2 had spent fifteen years with the National Museums of Kenya and held an MSc in Biology Conservation and a BSc in Environmental Resource Management. PW3, a KWS corporal also attached to Tsavo West, was responsible for animal security and park patrols. PW4, Jackson Muyanga, was a KWS investigator handling wildlife crime. # Evidence in Brief 1. PW1 – Ranger David Chomba, a KWS ranger based at Tsavo West, testified that he received a report from Cpl. Adano Wario at 7:10 p.m. on 14th March 2024 while on duty, concerning intelligence about a suspect who intended to sell an elephant tusk. He left in an unmarked vehicle with his driver, Gichohi, arriving in the Kinyambu area at around 9:00p.m. They obtained a further lead placing the suspect at a club called Smart Choice Lounge, along with a description of him, and learned that two people matching the description were inside. PW1 and the driver took up a vantage point near the entrance. At around 12:30 a.m., they observed two men leaving the club, one of them carrying a beige sack. 1. They arrested the man carrying the sack; his companion fled. After identifying themselves, the officers searched the sack and recovered two pieces of elephant tusk. The suspect could not produce a licence.PW1 took the suspect to KWS headquarters, where he was interrogated and statements were recorded, before being escorted to Kibwezi Police Station for processing before being arraigned in court. 2. **PW2**, a biology conservation specialist of fifteen years’ standing, received two items from Officer Muyanga for examination on 8th April 2024. Using microscopy, she confirmed both were genuine elephant tusks from a single elephant, measuring 50 cm and 78 cm respectively, and produced her findings as P. Exhibit 5. In cross-examination, she clarified that fingerprinting fell outside her role and that she had no prior knowledge of the accused. 3. **PW3**, Cpl. Adano Wario (KWS 6982), testified that he received a call from his superior at 7:00 p.m. on 14th March 2024 briefing him on the operation. The team traced the suspect to Kiliu Bar in Kinyambu and arrested him at midnight as he left the premises carrying a yellow sack containing two tusks; his accomplice escaped. An inventory and weighing certificate were prepared and signed at the scene. In re-examination, PW3 denied harbouring any grudge against the accused and confirmed that the accused had personally been carrying the tusks at the time of arrest. 4. **PW4**, Jackson Muyanga (KWS 7648), the investigating officer, was called out at 1:00 a.m. on 15th March 2024 and proceeded to KWS headquarters at Kamboyo, Tsavo West. He interrogated the accused, recorded his statement, prepared the inventory (P. Exhibit 8), weighed the tusks (P. Exhibit 6), completed a chain of custody form (P. Exhibit 7), and delivered the exhibits to the National Museum for verification. He produced all exhibits in court. 5. After the close of the prosecution case the provisions of Section 211 of the Criminal Procedure Code was explained to the Accused person. The Accused opted to remain silent and wait for the court’s decision 6. The duty of a first Appellate Court was set out in the case of: **Abok James Oderat/a AJ Odera &Associates -V- John Patrick t/a Machira &Co. Advocates [2013] Eklr,** where the Court of Appeal stated as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”*** 1. This Court has the duty to re-evaluate the evidence adduced before the trial court and make own conclusions. In the case of **Selle v Associated Motor Boat Co. [1968] EA 123** the court addressed the above in the following terms: ***“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.*** ***An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.*** ***In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. The above was also the holding in the case of **Okeno v Republic [1972] EA 32** where it was held as follows; **“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. Republic (1957) E.A. (336) and the appellate court's own decision on the evidence. The first appellate *court must itself weigh* conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v. R. (1957) E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses*, See Peters V. Sunday Post, (1958) E.A. 434).”*** 1. Having carefully considered the present Appeal, the memorandum of appeal, the record of appeal and submissions on record, I find that the following issues would arise for determination in this appeal: 2. Whether the prosecution proved its case beyond reasonable doubt. 3. Whether there were any material contradictions in the prosecution’s case. 4. Whether the sentence imposed was lawful and proper. **Whether the prosecution proved its case beyond reasonable doubt** 1. The case of **Miller v Ministry of Pensions [1947] 2 All ER 373** remains instructive on what it entails to prove a case beyond reasonable doubt: It states that, ***“It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt…”*** 1. This principle was applied in **Republic v Edward Kirui [2014] eKLR,** where the court held that a trial court may properly convict once a prima facie case has been established and the defence offers nothing to displace the weight of that evidence. 2. The evidence of possession of elephant tusks by the prosecution witnesses was not displaced. The Appellant was, of course, entitled to remain silent once placed on his defence, but where the prosecution has already made out a prima facie case, that silence leaves the evidence on record standing and unchallenged. 3. It is settled law that the burden of proof in a criminal charge, rest on the prosecution, to the required standard of proof.The Respondent submits that this burden was duly discharged. 4. The prosecution’s case rested on the testimonies of PW1, PW2, PW3, and PW4. PW1 and PW3 were the arresting officers, who intercepted the Appellant at the Kinyambu area following intelligence reports. They recovered the two pieces of elephant tusks from a sack the Appellant was carrying at the time. 5. The exhibits arising from that recovery were handled properly throughout. An inventory was prepared and signed by the Appellant himself (P Exh.3), and a weighing certificate was tendered in evidence as P.Exh.6. ***Whether there were any material contradictions in the prosecution’s case*** 1. The Appellant points to two discrepancies between the accounts of PW1 and PW3. The precise location of the arrest (Smart Choice Lounge as against Kiliu Bar) and the colour of the sack recovered (beige as against yellow). 2. These, in the Respondent’s submissions, are minor inconsistencies of the kind that naturally arise from independent recollection, and they do not touch the substance of the charge. What is not in dispute, and what both witnesses agreed on, is that the Appellant was intercepted within the Kinyambu area in physical possession of the two tusks. 3. This distinction was addressed in the case of **David Ojeabuo v Federal Republic of Nigeria [2014] LPELR-22555(CA),** where the court held that a contradiction must amount to: ***“A patent incongruity on a material issue, not minor discrepancies in descriptive details that are due to normal human errors of observation over time.”*** On that basis, the Respondent submits that the prosecution’s evidence was consistent on every particular that matters.This court agrees with that submission and finds that any such minor discrepancies noted do not affect the substance of the evidence on record. ***Whether the sentence imposed was lawful and proper*** 1. The Appellant received the minimum sentence available under the law. Section 92(4) of the Wildlife Conservation and Management Act provides that a person convicted under this section: ***“…shall be liable upon conviction to a fine of not less than three million shillings or to imprisonment for a term of not less than five years, or to both such fine and imprisonment.”*** 1. Five years imprisonment was therefore the minimum sentence prescribed by statute, not a discretionary figure selected by the trial court. The trial Court had no room to impose any other sentence other that the one prescribed by statute. 2. The above finding is consistent with the holding in the case of Fatuma **Hassan Salo v R [2006] eKLR,** where the court confirmed that a mandatory minimum sentence binds the trial court, which cannot depart from it under the guise of exercising discretion. 3. The Appellant separately raises the period he spent in remand. He was arrested on 15th March 2024 and sentenced on 5th February 2025, a period in custody of ten months and twenty-one days. Section 333(2) of the Criminal Procedure Code (Cap 75) requires that this period be taken into account: ***“In directing the maximum period of imprisonment that may be imposed for an offence, the court shall take into account any period of time that the person has spent in custody in connection with the offence.”*** 1. The Respondent does not resist a review of the sentence for the limited purpose of crediting this period, in line with section 333(2) of the Criminal Procedure Code and in line with the approach taken in **Ahamad Abulfathi Mohammed & Another v Republic [2018] eKLR.** 2. The Respondent submitted that the offence carries a mandatory custodial minimum sentence under the Wildlife Act, and general decongestion guidelines cannot override that statutory baseline. The Court agrees and finds that the sentence imposed by the trial court not only lawful but mandatory. 3. In the foregoing this court makes a finding that the three issues raised and found to be relevant in determining whether the trial court erred in the impugned judgment, in convicting and sentencing the accused person have been discharged to the satisfaction of the court. The conviction rests on sound evidentiary foundation and should stand. **Disposition** 1. a) The Court therefore finds that the appeal herein is devoid of merit and consequently the same is dismissed, both on conviction and sentence save that the sentence must take into account the period the Appellant remained in custody before conclusion of the trial b) The judgment of the trial court delivered is upheld **DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 17TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **APPELLANT FROM MAKUENI PRISON** **MUTHANGU FOR THE STATE** **COURT ASSISTANT: JAEL NOSIM**