[2023] KEHC 25856 (KLR)

Muchemi v Republic (Criminal Petition E010 of 2021) [2023] KEHC 25856 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25856 (KLR)

Republic of Kenya

In the High Court at Narok

Criminal Petition E010 of 2021

F Gikonyo, J

November 21, 2023

Between

Daniel Karanja Muchemi

Applicant

and

Republic

Respondent

(Revision from Original Conviction and Sentence in Narok CMCR No. 1220 of 2014)

Judgment

Sentence re-hearing 1. By a notice of motion received in court on 20. 05. 2021, the applicant is seeking to have this court revise the trial court’s order on the fine of one million and in default to serve 6 months imprisonment to a reasonable fine and imprisonment term.

Brief Background of this Case 2. The applicant was charged with three counts.

3. Count I: being in possession of wildlife trophy contraRy To Section 95 as read with section 92 of the Wildlife Conservation and Management Act, 2013.

4. The particulars were that on 30. 07. 2014 at Narok town within Narok County was found in possession of a wildlife trophy namely 9 pieces of elephant tusks weighing 84 kgs with a street value of Kshs. 8. 4 million without a permit.

5. Count II: Dealing in Wildlife Trophy Contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act 2013.

6. The particulars were that on 30. 07. 2014 at Narok town within Narok county was dealing in a wildlife trophy namely 9 pieces of elephant tusks weighing 84 kgs with a street value of Kshs. 8. 4 million without a permit.

7. Count III; keeping a wildlife trophy contrary to section 95 as read with section 92 of the Wildlife Conservation and Management Act, 2013.

8. The particulars were that on 30. 07. 2014 at Narok town within Narok county kept a wildlife trophy namely 9 pieces of elephant tusks weighing 84 kgs with a street value of Kshs. 8. 4 million without a permit.

9. The applicant was charged, convicted, and sentenced to pay a fine of Kshs. 1,000,000 in default to serve three years imprisonment and in addition, to serve three years imprisonment.

Directions of the Court. 10. The application was canvassed by way of written submissions. Both parties have filed.

Applicant’s Submission 11. The applicant submitted that the sentence imposed on him was too harsh and excessive. He prayers that it be reduced.

12. He submitted that he is a first offender, remorseful, is a family man and a sole breadwinner, he has reformed and undergone rehabilitative programs in a prison institution.

13. The applicant prayed for a noncustodial sentence.

14. The applicant urged this court to find that the time already spent is enough for rehabilitation.

15. The applicant prays that the 3 years without a fine run concurrently with 3 years with a fine.

Respondent’s Submissions. 16. The respondent submitted that the trial court imposed the sentence as was provided by the law. The respondent relied on section 95 of the Wildlife Conservation and Management Act.

17. Thus, according to the respondent, the sentence was legal and within the law, as the trophy was from an endangered species. The court has discretion in sentencing. Possession of trophies of endangered species is an aggravating factor that was put into consideration during the sentencing of the suspect. The respondent relied on the case of James Makere Dullu Vs Republic[2020] eKLR

Analysis And Determination 18. The application herein and the rival parties’ written submissions raise one issue;i.Whether the sentence was harsh and excessive.

Sentence 19. The trial court found that the applicant was a first offender. It also considered his mitigation.

20. The appellant was convicted for the offence of being in possession of a wildlife trophy contrary to section 95 of the Wildlife Conservation and Management Act, 2013. The sentence provided for the offence is; a fine of not less than one million shillings (Kshs 1,000,000) or a term of not less than five (5) years or both such fine and imprisonment. The sentence imposed is a fine of Kshs. 1,000,000 in default to serve 3 and in addition to serve 3 years imprisonment. That sentence is therefore lawful.

21. The number of tasks subject of these proceedings suggests at least 5 elephants were killed. This is a serious offence for it is a threat to endangered species as well as is wildlife tourism in this country. It appears from the record that he also faced another criminal case number 1513 of 2019 at Kibera Law Court for possession of rhino horns. The court is in total agreement with the trial court that the circumstances of this case and the kind of offence involved call for a deterrent sentence. The invitation to impose a non-custodial sentence is declined. There is nothing that makes the sentence herein harsh or excessive in the circumstances of the case.

22. In respect of section 333(2) CPC; was on bond but the trial court observed that the applicant had absconded at some point, and was in custody because of the Kibera Case. The sentence herein is also very lenient. Accordingly, the purport of section 333(2) of the CPC has been met.

23. Consequently, the application is dismissed and the sentence upheld.

24. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 21ST DAY OF NOVEMBER, 2023. HON. F. GIKONYO M.JUDGEIn the presence of:-1. Mr. Muraguri C/A.2. Ms. Kerubo for Appellant3. Appellant.