[2023] KEHC 24955 (KLR)

Muindi & another v Republic (Criminal Appeal E011 & E012 of 2022 (Consolidated)) [2023] KEHC 24955 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24955 (KLR)

Republic of Kenya

In the High Court at Voi

Criminal Appeal E011 & E012 of 2022 (Consolidated)

GMA Dulu, J

November 7, 2023

Between

Daniel Wambua Muindi

1st Appellant

David Mutua

2nd Appellant

and

Republic

Respondent

(From the conviction and sentence in Voi Magistrate’s Criminal Case No. 132 of 2018 delivered on 20th September 2019 by Hon. Khapoya S. Benson (PM) in Taveta Law Courts)

Judgment

1. The two appellants herein were charged in the Magistrate’s court with two counts.

2. Count 1 was for possession of wildlife trophy contrary to Section 95 of the Wildlife Conservation and Management Act 2013, the particulars of offence being that on 28th February 2018 at around 0003hours at Naekana stage in Taveta town within Taita Taveta County jointly were found in possession of wildlife trophy namely 40 pieces of Pangolin scales without permit.

3. Under Count 2, they were charged with dealing in wildlife trophy contrary to Section 84(1) as read with Section 92 of the Wildlife Conservation and Management Act 2013, the particulars of which being that on 28th February 2018 at around 0003hours at Naekana stage in Taveta town within Taita Taveta County jointly were dealing in wildlife trophy namely 40 pieces of Pangolin scales without a permit.

4. They denied both charges. After a full trial, each was convicted on both counts and fined Kshs. 1,000,000/= in default to serve jail period for 5 years under count 1, and fined Kshs. 20,000,000/= each in default to serve jail for life in respect of count 2.

5. The two have now come to this court on separate appeals which have been consolidated. The grounds of appeal can be summarized as follows:-1. The trial Magistrate erred in convicting them yet he did not resolve material contradictions in the prosecution evidence in their favour.2. The Magistrate erred both in law and in facts when he convicted them yet he failed to observe that nothing was recovered from them.3. The learned Magistrate erred in not considering the mode of arrest.4. The trial Magistrate erred for not finding that no data communication were produced as evidence before court to prove that the two appellants knew each other and that the one had phone number of the other.5. The trial Magistrate erred in not finding that the two were not arrested at the same place.6. The Magistrate erred in disregarding the defence of alibi.7. The sentence was harsh and excessive.

6. The appeal was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by each of the two appellants as well as the submissions filed by the Director of Public Prosecutions.

7. This being a first appellate court, I have to bear in mind that I am duty bound to evaluate all the evidence on record afresh and come to my own independent conclusions and inferences – see Okeno v Republic [1972] EA 32.

8. At the trial, the prosecution called three (3) witnesses. On their part, each of the two appellants tendered sworn defence testimony.

9. In determining these appeals, I have to bear in mind that the prosecution had the burden to prove all the elements of the two offences beyond any reasonable doubt. The appellants had no burden to prove their innocence. I also take note of the fact that the Director of Public Prosecutions conceded to the conviction on count 2, but have to state that I am not bound to agree with such conceding.

10. Having considered the charges, the evidence on record, and the submissions, I am of the view that these appeals will have to succeed.

11. The first reason for the appeals succeeding is the manner in which the items were recovered and the evidence to support that allegation. In this regard PW1 Patrick Lesalaoni stated that they went to the scene with two NGO colleagues Kashamboi Mtokoi and Mpapai Longonot.

12. From the evidence on record however, none of these other two companions tendered evidence. Instead a KWS Ranger Reuben Juma was the person who testified as investigating officer, and stated that no inventory of the items was made either at the scene of recovery nor at the point of reporting to KWS.

13. In addition, thereafter, the evidence on record is that the suspects were taken to Taveta Police Station, but there was no evidence to show whether the recovered items were also taken to the police station or any document filed with the police in respect of the recovery of those items.

14. In my view, the evidence of the chain of events from the time the appellants were restrained, to the time they were handed over to the police, and the handling of the items alleged to have been recovered within the law enforcement agents, leaves a lot of gaps, the benefit of which should have been given to the appellants.

15. The other reason why the appeals will succeed is with regard to the chain of handling the items sent to the expert witness in Nairobi and back. I note that though the Exhibit Memo Form is a police document and the report from the National Museums of Kenya was addressed to OCS Taveta Police Station, no police officer appeared in court to own the documents in order to complete the items handling chain, so as to prove that the items sent to the expert were the same items which were listed in the Exhibit Memo Form. On that account also these appeals will succeed, because of glaring gaps in handling of the items and the expert reports.

16. Consequently, and for the above reasons I allow the appeals, quash the convictions and set aside the sentences imposed. I order that each of the two appellants herein be set at liberty unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED THIS 7TH DAY OF NOVEMBER 2023 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantBoth appellantsMr. Sirima for State