[2023] KEHC 25311 (KLR)

Mueni v Republic (Criminal Appeal E014 of 2023) [2023] KEHC 25311 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25311 (KLR)

Republic of Kenya

In the High Court at Malindi

Criminal Appeal E014 of 2023

DKN Magare, J

November 7, 2023

Between

Tabitha Mueni

Appellant

and

Republic

Respondent

(The appeal herein arises from the decision of N C Adalo SRM given on 22/2/2023 in Marikani SPM CR No. 895 of 2019)

Judgment

1. The appeal herein arises from the decision of N C Adalo SRM given on 22/2/2023 in Marikani SPM CR No. 895 of 2019.

2. The appellant was charged together with Charles Mueni for dealing in Wildlife Trophy if an endangered species without a permit or other lawful exception, contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013.

3. The particulars were that on 12/12/2019 at around 1400 at Mwajera area within Kwale County there found dealing in Wildlife trophies namely 10 pieces of Elephant Tusks weighing 73 Kilogrammes that being a trophy of a species that is endangered under the 6th schedule of Wildlife Conservation and Management Act 2013 will a street value of 7. 3 Million without permit of other lawful exemption granted under this Act.

4. The second count was being in possession of atrophy of endangered Wildlife species without a permit of other lawful exemptions contrary to Section 92 (4) of the Wildlife Conservation and Management Act. The parties were found in possession of 73 kg of Wildlife trophy being 10 pieces of elephant tusks weighing 73 kg valued at 73 million without permit of other lawful exemption granted under the act.

5. Section 92 of the Wildlife Conservation and Management Act, 2013 provide as follows: -“Offences relating to endangered and threatened species: -1. A person who kills or injures, tortures or molests, or attempts to kill or injure, a 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 five years.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 years.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.4. 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.5. Any person who without permit or exemption issued under this Act, manufactures an item from a trophy of a critically endangered or endangered species specified under the Sixth Schedule or listed under CITES Appendix I without a permit or exemption issued under this Act, commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings or up to life imprisonment or both such fine and imprisonment.

6. This is a first appellate court as expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. In Okeno vs. Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court 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 vs. Republic (1957) EA. (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 Vs. R. (1957) EA. 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 vs. Sunday Post [1958] E.A 424. ”

7. A first appeal is a retrial. The Court does not review the legality of the evidence to confirm or otherwise deal with the decision of the lower court. it is a relook at the totality of evidence on record, notes of the trial magistrate and a general analytical evaluation of the evidence. this is done bearing in mind that the first Appellate court neither heard nor saw the witnesses. this does not no mean that the court will be blind to the general drift of the evidence. with good recording of evidence, the appellate court can form a fairly clear picture of the events. the court is equally informed by certain presumptions that have developed over time under the Evidence Act. In the case of Kiilu & Another vs. Republic [2005]1 KLR 174, that:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.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 findings and 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.”

8. The duty is however, different when it comes to documents. there is neither magic not gymnastics to be done to elucidate what is apparent on a document. The Court is to bear in now that if need her seen the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses.

9. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth; -“Courts adopt the objective theory of contract interpretation and profess to have overriding view sometimes called Four Corners of an Instrument, which insists that a documents meaning should be derived from the document itself, without reference to anything outside of the document, extrinsic reversed…”

10. The Appellate court and trial court will construct documents in a similar manner as there are no witnesses required to know the content of a document. Therefore, where the findings of the trial Court are consistent with the evidence generally, this Court should not interfere with the same.

11. Therefore, the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

12. The Supreme Court of India in K. Anbazhagan vs. State of Karnataka and Others Criminal Appeal No. 637 of 2015:-“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”

Evidence 13. The charge was read on 13/12/2019 and the Appellant and another accused, herein after referred as the 1st Accused pleaded not guilty. They were each released on 800,000/= bond. The Court declined to reduce bond on application. On 13/2/2020 bond for Charles Mueni was approved. Later Bond for the appellant was approved on 6/8/2020. The 1st accused absconded till 10/9/2021 when he was brought by the surety. The 1st accused was again released on 500,000 bond. It was the time of the Appellant to abscond. This was later dealt with.

14. The first witness, Jully Odhiambo testified on 23/2/2022. He was one of the arresting officers. He was told that individuals were selling elephant tusks and were looking for potential buyers. They met and he was one of the buyers. They left Mombasa. They had agreed on the price at 20,000/= per kg for the 73 Kg of Elephant tusks. I must note at this point that the court maintained very meticulous and detailed notes and evidence.

15. The Appellant and the 1st Accused took the witness and his colleagues to the scene of crime. the crime was yet inchoate at that point. on reaching where they had hidden the 10 pieces of elephant tusks, asked the driver to stop the vehicle. They got out and entered a bush where they were came back carrying 3 gunny bags. They retrieved three bags of various colours; basically white with different stripes.

16. The officers weighed these elephant tusks. while doing so, they signaled the arresting team. The witness identified the Appellant as the Woman who was carrying the greenish gunny bag. He stated they found the Appellant with the elephant tusks. The cross examination did not touch on the offence she was charged with.

17. The Second witness Jackline Maiyo testified that she got information of the potential sale and informed Jully Odhiambo and other officers. they agreed on the way forward regarding the potential sale of Elephant tusks. She set up the meeting with purported buyers who turned up to be KWS officials. On cross examination by the appellant, she confirmed that they found the Appellants with 10 pieces of elephant tusks. The appellant wanted to know the source of elephant tusks. it is important for parties to use their time well during cross examination instead of asking incriminating questions.

18. The third witness, Bakari Faiz, testified that he was told to go and meet and effect an arrest. He described how they recovered 10 pieces weighing 73 kg of elephant tusks. On cross examination by the Appellant, he stated that she were arrested on man road while carrying the task. the tusks had earlier been hidden in a bush where the duo, the Appellant and 1st accused retrieved the same.

19. PW4, Damiano Mwaniki described how he received intelligence from Jackline Maiyo on sale of animal trophies. He described how they organized how to get them out of the market. Upon confirming that they had elephant tusks, and it was being weighed an arrest was effected.

20. PW5, PC Linda Were, was the investigating officer. He was called and found KWS officers and 2 Civilian with 3 white bags/sacks with various strips. She described the sacks. the witness testified that PW2 prepared inventory. She stated that they engaged an expert who confirmed the materials were elephant tusks. She ascertained the street value of the elephant tusks.

21. PW6 testified. He was Dr. Ogeto Mwibi. He states that he had 31 years’ experience as a senior researcher specialized in animal remains.

22. He recalled that he was called on 20/2/2020, by a police officer, who wanted him to identify exhibits in which animals they belonged to. They were all complete elephant tusks which had clear stringer lines. Jack Maiyo was recalled for cross examination. The same with other witnesses. They were all cross examined. They placed a market value at Ksh. 7,300,000/=.

The Appellant’s Submissions in the lower court 23. The parties filed submissions. They stated that section 92 (2) was the punishment Section hence it could not stand. They relied on the case of 42. These two sections were the subject of discussion in Voi High Court Criminal Appeal No. 7 Of 2014; Mutisya Kiema –vs- Republic where Justice Kasango expressed herself as follows;“The question then is, shouldn't the Appellant have been charged under Section 92 of the Act only? After a careful reading of Section 92 of the Act, I notice that it is more of a punishment provision rather than a penal provision. In other words, the section only provides for the punishment for the offences in respect of endangered species or their trophies but does not itself create the offence. I say so because section 92 only provides for punishment “where a person commits the offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species” but does not make provision for the circumstances under which a person is deemed to have committed the said offence”. 43. While interrogating the consequences of charging an accused person under both sections, she expressed herself as follows;“What then should have been the consequence of charging the Appellant with an offence under both Sections 92 and 95 of the Act? Should the charge under count one have been rendered defective? I do not think so. Section 179 of the Criminal Procedure Code, Cap. 75 of the Laws of Kenya provides for the conviction of an accused person for a lesser offence than that which the person is charged with. That section provides that:-(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.”Although the Appellant was charged with an apparently more serious offence, it is my view that the Wildlife Conservation and Management Act, 2013 as it is now, does not clearly create the offences relating to endangered species or their trophies.It only provides for punishment for the same. This court shall therefore invoke Section 179 of the Criminal Procedure Code and reduce the offence that the Appellant was charged with under both Sections 92 and 95 of the Wildlife Conservation and Management Act, 2013 to offence under Section 95 only.It is my considered view that unless and until the Act is amended to create the offences restricted to endangered species, suspects should be charged under section 95 of the Act only”.

24. I only wish to point out that there was an amendment after the above decision is therefore, per incurum. I need not say more. in any case such errors, if they are errors are curable under section 382 of the criminal procedure code, which provides as doth: -“382. Finding or sentence when reversible by reason of error or omission in charge or other proceedings Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”

25. Further, such an error is not fatal. In the case of Kipngetich & 2 others v Republic (Criminal Appeal 20 & 19 of 2019 & 140 of 2017 (Consolidated)) [2021], the Court stated as doth: -“I have perused the charge sheet viz aviz the provisions of section 34 and 136 of the Criminal Procedure Code to see if there are any irregularities. If any they could be of a kind, I consider curable under section 382 of the Code. There is no variance between the particulars of the offence as framed and the evidence by the prosecution witnesses. This is not a case where the appellants were charged and tried with a non-existent offence to occasion prejudicial or a failure of justice as the defence wants this court to belief. There is no misjoinder of parties or defect in the charge-sheet to warrant this court to set it aside. This ground on a charge being defective is dismissed.

Appellant’s submissions 26. The Appellant gave chronology of the events and testimony. she was of the view that the circumstances of arrest were hazy. the state witness no. 1 testified that weighting was being carried when they were arrested at the same time it was said to have been carried out in the police station. it was her case the absence of photos was fatal to the case. to her, it means the offence never occurred.

27. She disputed the colour of the gunny bags and the number of tasks in each. she was of the view that evidence oscillated to between 15 and 20, hence the evidence was inconsistent. further she disputed the value of Ksh 7,300,000/= assigned and there was no valuation.

Respondent’s Submissions 28. The Respondent submitted that the conviction and sentence are proper. it was their case that there was no error in the conviction. The stated decried that the court was being asked to interfere with discretion of the court. Further stated that the evidence was not inconsistent. The stated that the evidence was watertight. they stated that the accused was properly heard and as such there was no breach of the law.

29. They rely on the blow by blow account by 1st and 4th witnesses to state that there was no omission whatsoever.

Appellant’s Evidence 30. Both accused gave sworn testimony. I will concentrate on the Appellant’s evidence. The Appellant testified on oath. She narrated how she was arrested. The parties again submitted. The court analyzed the evidence and submissions. She found both guilty and upon receiving pre-sentencing report, the Appellant was sentenced to 7 years’ imprisonment on Count 1. On the second count, the Appellant was sentenced to 3,000,000/= in default to serve 5-years imprisonment.

31. It is against the conviction and sentence that she appeared when she came before me, she concentrated on the sentence. She indicated to be 55 years old.

Analysis 32. The Appeal is mainly on the question of sentence though there is a feeble appeal on conviction. The aspect of possession is crucial for the counts herein. in the case of Issa Nabongo Wanina v Republic [2021] eKLR, Justice R. Nyakundi, stated as follows: -“There element of constructive possession is also neither here nor there because the circumstances under which the trophies were found and recovered was ambiguous and there is nothing before me capable to credibly ascertain that the same was either in actual or constructive possession of the said trophies. In that regard I find useful guidance in the case of Obeng Comfort v Public Prosecutor (2017) 1 SLR 1 633, where Menon, CJ held that in order to prove the fact of possession, the prosecution has to prove beyond reasonable doubt, that the Accused person did not only have physical control over the item, but the accused person also knew or aware that the was a controlled wildlife trophy. “

33. I have perused the evidence on record. I note from the record that the Appellant the charge very well. the chronology of the events placed her in the locus in quo. when such evidence places the Appellant at the place of arrest section 111 of the evidence act. presumes certain things. The chronology of events from 11/12/2019, up to arrest are consistent. The Appellant did not answer to the case before the court. the officers laid a trap, which ensnared the Appellant. her defence was the most-feeble of defences one can get.

34. The evidence related to her daily job of small time hawking. she did not cover all the issues raised by the prosecution. her evidence was basically evidence in mitigation and on the non-culpability of the Appellant. The submissions by the Appellant are not supported by evidence.

35. The Appellant was with the witnesses in a vehicle from Mombasa to Samburu. this was enough to recognize the Appellant. she had no reason to camouflage. They raised the issue of sacks. The issue of the colour of gunny bags are not a real issue in controversy. the state placed them in the scene of crime. they did nothing to explain their presence in the locus in quo.

36. Where evidence is circumstantial, which in this case was not, test is that the evidence must be inconsistent with the accused’s innocence. in this case, the Appellant was in the locus in quo. there was no explanation of their presence there. the only explanation is that they sell food several km Away. In Chiragu & another v Republic (Criminal Appeal 104 of 2018) [2021] KECA 342 (KLR) (17 December 2021) (Judgment), the court stated as doth:-“Alternatively, did the prosecution prove beyond reasonable doubt that it was the appellants and nobody else who committed the unlawful act that led to the death of the deceased? From the evidence tendered before court it is clear that none of the prosecution witnesses actually saw or witnessed the appellants or indeed any other person kill the deceased.

37. The conditions for the application of circumstantial evidence in order to sustain a conviction in any criminal trial have been laid down in several authorities of this court. Suffice to mention Abanga alias Onyango v. Republic CR. App NO. 32 of 1990(UR) in which this court held as follows:“It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests:(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established,(ii)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;(iii)the circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.”

38. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, the Court of appeal had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.’”

39. The courts have relied on the case of Sawe Vs. Republic [2003] KLR 364 where the Court of Appeal stated as doth regarding circumstantial evidence in criminal cases: -“In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remain with the prosecution. It is a burden which never shift to the party accused.”

40. The evidence place, the appellant at the scene she does nothing to remove her from the scene. it is not that the burden is on her but, the evidence is inconsistent with her innocence. if you are hawking in Mombasa, you don’t find yourself with Elephant trophies without stating how you were placed there. in Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR, the court stated as doth: -“It is the law in Kenya as entrenched in the constitution under Article 50 (2) (a) that an accused person is presumed to be innocent until the contrary is proved. The evidence Act Cap 80 of the Laws of Kenya at section 107 (1) provides thus: “whoever desires any court to give judgement as to any right or liability dependent on the existence of facts which he asserts, must prove those facts exist.”As to what constitutes the burden of proof beyond reasonable doubt the case of Miller v Minister of Pensions [1947] 2 ALL ER 372 – 373 provides as flows in a passage alluded to me considered the greatest jurist of our time Lord Denning:“That degree is well settled. It needs not reach certainly, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of doubt. The law would prevail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility of his favour which can be dismissed with the sentence of course it is doubt but nothing short of that will suffice.”

41. It should be recalled that once someone is placed on their defence, the burden of proof does not shift to them. It remains throughout. however, there needs to be more than surmises to dislodge a prima facie case lodged. in the n the landmark case of R.T. Bhatt v Republic [1957] EA 332 – 335 where the Eastern Court of Appeal stated as follows:“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one, which on full consideration might possibly be thought sufficient to sustain a conviction. This is perilously near suggesting that the court will fill the gaps in the prosecution case. Nor can we agree that the question whether there is a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It may not be easy to define what is meant by a prima facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”

42. The evidence on record was overwhelming. it was not some run off the mills evidence but consistent evidence. The issue was the elephant tusks I am satisfied on the prosecution provided both counts. The number and weight of elephant tusks was settled by the experts. he stated that some of the tusks were cut into two but the expert witness, stated that they knew which ones can from which part.

43. The issue of experts has been settled in law. in The court will treat the expert report as part of the evidence and analyst its soundness. The court of appeal, quoted with approval a high court decision on expert evidence in the case of“Also taken into consideration among numerous others is the case of Stephen Kinini Wang'ondu vs. The Ark Limited [2016] eKLR from which the Judge drew out four tests to be applied by a court when considering admission and acting on expert evidence as more particularly set out in the ruling and which we also find prudent not to rehash and expressed himself thereon, inter alia, as follows: -“In my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative or manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable. It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court “of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence.” An expert report is therefore only as good as the assumptions on which it is based.An expert gives an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.”

44. In Shah and Another vs. Shah and Others [2003] 1 EA 290 wherein Ombija, J. expressed himself on this issue, inter alia, as follows:“One of the special circumstances when witnesses may be called to give evidence of opinion is where the situation involves evidence of expert witness and this is an exception to the general rule that oral evidence must be direct…The expert opinion is however limited to foreign law science or art; including all subjects on which a course of study or experience is necessary to the formation of an opinion and handwriting is one such field…However as a rule of practice, a witness should always be qualified in court before giving his evidence and this is done by asking questions to determine and failure to properly qualify an expert may result in exclusion of his testimony…The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so…If there is a conflict of expert opinion, with experts appearing for both parties, resolution of conflicting evidence or the acceptance of the evidence of one expert in preference to the opinion of the other, is the responsibility of the court…Properly grounded expert evidence of scientific conclusion will be extremely persuasive in assisting the court to reach its own opinion.”

45. I have seen the expert witness’s qualification. No issue arose as to his qualification. Secondly, the court considered the evidence available. The evidence is consistent to a largest possible extent to the state evidence and all evidence on record.

46. The Appellant raised the issue of the weighing certificate. The expert report gives the weight at 73 kg. It was not contested as not dealing with the same elephant tasks. Though the appellant prayed for the 7 years to be reduced.

47. The conviction was sound and based on the evidence that was credible. all the witnesses stated how the Appellant was led from the point she was selling ivory to the time she led the Witnesses to recover the ivory. I was facing difficulties, whether the conduct was getting a confession. however, this was not a confession .it was the Appellant engaging in trade in elephant trophies without a license. the people she was dealing with were undercover. she had absolutely no reason to think that show was being coerced. I find that the conviction on both courts is safe.

48. The same were proved beyond reasonable doubt. in Republic v Ismail Hussein Ibrahim [2018] eKLR, the court, R. Nyakundi, stated as doth as regards reasonable doubt: -“To give meaning to this concept of burden of proof of beyond reasonable doubt in criminal cases the Federal Court of United States in the case of United States V Smith, 267 F. 3d 1154, 1161 (D.C. Cir. 2001) (Citing In re Winship, 397 U. S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring) the court stated:“The burden is upon the state to prove beyond reasonable doubt that the defendant is guilty of the crime charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt. A reasonable doubt is a fair, actual and logical doubt based upon reason and common sense. A reasonable doubt may arise either from the evidence or from a lack of evidence. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the state to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The state does not have to overcome every possible doubt. The state does not have to overcome every possible doubt. The state must prove each element of the crime by evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance. If you find there’s a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration.”Therefore, whether one is referring to the English Criminal Law or the American Criminal Justice System the prosecution has the duty to proof all the ingredients of the offence beyond reasonable doubt and there is no burden on the part of the accused to proof his innocence at any one given time. The law only permits very few statutory exceptions where an accused person can be called upon to give an explanation in rebuttal. However, this does not shift the burden of proof from the prosecution. It is not in dispute that our Criminal Law jurisprudence is based on this definition as articulated by the above decisions”

In Analysis 49. On ground 1, the state stated that the evidence was cogent. I have read the evidence of all the witnesses, and I do not see any inconsistence. Further though raising the issue the right to fair hearing, there were no material before there court to show the breach of those rights. Upon evaluating all the evidence, I have come to the inevitable conclusion that there was no error in the conviction.

50. In the circumstances, I dismiss in limine the Appeal on conviction since all ingredients were proved. the lower court did not err in its conviction of the Appellant on both counts. the same was properly proved.

Sentence 51. On Count 1, the appellant was sentenced to 7 years imprisonment whereas the counter part was sentenced to 4 years the first Accused was sentenced to 4 years imprisonment. This was taking into consideration the one year and 7 months. The effect was that the is a disparity in sentencing between the two Accused persons. There was no reason for marked departure from the norm. This Court has for the umpteenth time noted that there should be no disparities of unequal treatment for equal people. There should thus be near a possible in the sentencing.

52. There are several principles governing sentencing. one of them is Proportionality. the sentence meted out must be proportionate to the offending behavior. the offending behaviour is weighted in view of the actual, foreseeable, and intended impact of the offence as well as the responsibility of the offender this is lost when the impact or harm the same and the culpability is equally the same but the two offenders received different sentences.

53. This also affects the principle of Uniformity, Parity, Consistency or Impartiality. we are called upon to impose same sentences for same offences committed by offenders in similar circumstances, this then brings about transparency in sentencing. the Raison d’etre, the court gave was taking into consideration section 333(2) of the Criminal Procedure Code. the section provides as follows: -“333. Warrant in case of sentence of imprisonment.(1)A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death.(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”

54. The reason does not fly. This is because, the section is a mathematically precise provision. any sentence pronounced, is by that same pronouncement reduced by the days already spent. this are actual days and not approximation. for purposes of Accountability and Transparency, the has to be clarity on the reasoning behind the determination of sentence should be clearly. there should be no off hand treatment of conflicts.

55. The sentence in court one greatly differs with accused one. when I see the mitigation, personal circumstances, culpability, harm, and other personal circumstances, there was no great difference between them, accordingly. a more differentiated system or result cannot be lawful.

56. The second aspect is the totality of the Sentence. the sentence passed does not consider the personal circumstances of the Appellant and co-Accused. The sentence passed for these offenders who had 2 counts should be just and proportionate, taking into account the offending behaviour as a whole. From the proceedings, other than covid-19 time, the Appellant was of good behaviour. she did not abscond. the reason the 1st accused was in custody more was because he absconded and the trial had to stall. for that he was rewarded for bad behaviour.

57. That is not just. in any case the Appellant had issues raising bond. How could she raised a fine that is more than 4 times the amount of bond she was unable to raise. When it was apparent that the Appellant could not raise fine, it was the duty of the court to have regard for the personal circumstances of the Appellant.

58. There were no extenuating circumstances that led to her been treated difficulty. The court shall therefore substitute the sentence of 7 years with a sentence of 4 years starting from the date of arrest, excluding days she was on bond.

59. Further, the offence in Count 2 was in committed at the same time in the same circumstances as Count 1. There are no circumstances to have the sentence run concurrently. This helps the court to have a look at the totality of sentence.

60. In the circumstances given the age of the Appellant was 55 years, she must have learnt her lesion. I note that she cannot raise a fine of 3,00,000/=. she could not even raise bond of 800,000/=. There is no use imposing fine that there is no possibility of being paid. the sentence is also disproportionate and does not take into consideration the totality of the evidence.

61. The sentence in count 2 is therefore harsh. it ignores the reality that the particular accused or the Appellant herein was a fist offender aged 55. the probation report was not had regard to. I am equally aware that the aspect of poaching and sale of trophies has a constraint on both the inter and intra generational equity. there is a need to punish.

62. In Kipngetich & 2 others v Republic (Criminal Appeal 20 & 19 of 2019 & 140 of 2017 (Consolidated)) [2021] KEHC 447 (KLR) (4 March 2021) (Judgment), the court, Charles Kariuki stated as doth:

63. It found that the prosecution proved its case against the appellants herein in the first count to the required standard of beyond reasonable doubt. The prosecution having discharged its burden of establishing facts that prove to the required standard of beyond reasonable doubt that the appellants were found in actual possession of the luggage with the ivory pieces herein, by carrying the same and later being found while with them in a closed store, the burden of disproving knowledge that the items were not ivory pieces, or the existence of the ivory pieces therein, were on each of the appellants herein as the same was especially within their own knowledge and as required under section 111 of the Evidence Act.

64. Having found their defence to be evasive, and meant to divert from the real issues herein on how they were seen, found and arrested while with the luggage with the ivory pieces herein, trial court found that they failed to discharge their part of the burden of proof, especially as far as the knowledge component of possession is concerned.

65. I therefore set aside the sentence of fine of Ksh. 3,00,000/= and in default 5-years imprisonment. what then is the proper sentence. I am alive that the sentence is expressed as a minimum one. it has been stated that a minimum sentence takes away the court’s discretion. a maximum sentence on the other hand is legitimate. In addressing minimum sentences the Court has stated as doth in the case of Maingi & 5 others v Director of Public Prosecutions & another (Petition E017 of 2021) [2022] KEHC 13118 (KLR) (17 May 2022) (Judgment), the court, GV ODUNGA, J, as he then was stated as doth: -“This Court also had occasion to weigh in on the same matter in Yawa Nyale vs. Republic [2018] eKLR where it expressed itself as hereunder:“It is now clear that certain provisions of the Sexual Offences Act, are a cause of concern in this country. The effect of the harsh minimum sentences imposed under the said Act on young people in this country is a serious cause of concern. Our jails are overflowing with young people convicted courtesy of the provisions of the said Act. While I appreciate that sexual offences do demean the victims of such crimes and ought not to be taken lightly, the general society in which we operate ought to be taken into account in order to achieve the objectives of punishment. Penal provisions ought to take into account the objectives intended to be achieved and should not just be an end in themselves otherwise they may end up being unjust especially where the penalties imposed do not deter the commission of crimes where both the victim and the offender do not appreciate the wrongdoing in question.”116. Having said that the ultimate decision as to what ought to be done must remain that of the legislature. Ours is simply to align the legislation that were in existence before the promulgation of the Constitution of Kenya, 2010 with the letter and spirit of the Constitution.117. In the case R vs. Scott (2005) NSWCCA 152 Howie J Grove and Barr JJ stated: -“There is a fundamental and immutable principle of sentencing that this sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed in the circumstances of the crime committed…”

66. The Court in Maingi & 5 others v Director of Public Prosecutions & another (Supra) continued as follows: -“At the risk of being repetitive, I must make it clear that my finding herein does not mean that the court ought not to mete out what appears as prima facie mandatory minimum sentence. What it means is simply that the circumstances of the offence must be considered and having done so nothing bars the court from imposing such sentences as are appropriate to the offence committed. I gather support from the opinion held by the Court of Appeal in Dismas Wafula Kilwake vs. Republic [2019] eKLR that: “In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”

67. In the case of Dismas Wafula Kilwake vs. Republic [2018] eKLR where this Court stated as follows:“We hold that the provisions of section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing. Those provisions are indicative of the seriousness with which the Legislature and the society take the offence of defilement. In appropriate cases therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand. On the other hand, the court cannot be constrained by section 8 to impose the provided sentences if the circumstances do not demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.”

68. In the case of Director of Public Prosecutions v Justine Kadzomba Charo [2020] eKLR, the court, R. NYAKUNDI stated as follows: -“Apart from that, I am guided by Justice Odunga in Simon K Kimori v Republic, where the Judge cites and says:“The approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S v Malgas 2001 (2) SA 1222 SCA 1235 paragraph 25 as follows:“What stands out quite clearly is that the Courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature’s view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”In view of the foregoing, I find that the Learned Magistrate was well within his discretionary powers to impose an appropriate sentence depending of the peculiar circumstances of the instant matter. I therefore, find no misdirection in terms of sentencing on the part of the Learned Trial Magistrate and neither did I find any other plausible reason to vacate the sentence in question.

69. In Julius Chacha v Republic [2015] eKLR, Justice D. O. P. Nyamweya, stated as follows: -“As a general principle, the practice is that if an Accused person commits a series of offences at the same time in a single act and/or transaction, a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment. In Ondiek – v- R (1981) KLR 430, it was also stated by the Court that the practice is that if a person commits more than one offence at the same time in the same transaction save in exceptional circumstances, the sentences imposed ought to run concurrently. Likewise in Nganga – v- R, (1981) KLR 530, the High Court held that concurrent sentences should be awarded for offences committed in one criminal transaction.”

Determination 70. I therefore make the following orders: -a.The Appeal on conviction lacks merit and is accordingly dismissed in limine.b.The sentence of 7 years in respect of count 1 is set aside. In lieu, I substituting with a sentence of 4 years from the date of arrest excluding days she was on bond.c.the sentence for count 2, being fine of Ksh. 3,00,000/= and in default 5 years imprisonment is hereby set aside. In lieu thereof I substitute with a sentence of 4-years imprisonment for Count 2. d.Both sentences shall run concurrently, given that they arise from some circumstances. The sentences shall start from the date of arrest, excluding the days she was on bond.e.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Inspector HalimaAccused/Appellant presentMiss Mutua for the ODPPCourt Assistant - Brian