[2022] KEHC 15109 (KLR)

Mureithi & another v Republic (Criminal Appeal E030 of 2021) [2022] KEHC 15109 (KLR) (9 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15109 (KLR)

Republic of Kenya

In the High Court at Embu

Criminal Appeal E030 of 2021

LM Njuguna, J

November 9, 2022

Between

Japheth Muteti Mureithi

1st Appellant

Shackrack Mutuku Kayunga

2nd Appellant

and

Republic

Respondent

(Being an appeal against sentence and conviction by Hon. W. Ngumi in SPM’s Court in Siakago in Criminal Case No. 235 of 2020 delivered on 24. 05. 2020)

Judgment

1. The appellants herein were charged with the offence of possession of wildlife trophy contrary to section 92 of Wildlife and Conservation Act, 2013 with the particulars being that on April 28, 2020 at around 1418 hrs at Kiritiri area in Mbeere South Sub County within Embu County, jointly were found in possession of two pieces of wildlife trophy namely elephant ivory tusk weighing 24. 5 kgs without a permit.

2. The appellants filed a petition of appeal on June 4, 2021 containing the grounds of appeal as enumerated on the face of the petition and wherein they have challenged their conviction and sentence by the trial court where they were condemned to pay a fine of Kshs 20,000,000/= million or in default to serve 20 years imprisonment.

3. When the appeal came up for hearing, the court directed that the parties file written submissions which directions both have complied with.

4. The 1st appellant argued that the prosecution failed to prove its case beyond reasonable doubts to sustain a conviction. That the discrepancies and contradictions were so numerous that this court must take cognizant of the same in that it created substantial doubt in its case. It was submitted that his constitutional rights were violated since he was detained at Kiritiri Police Station custody for a period exceeding 24 hours. The 1st appellant submitted that the trial court failed to consider the legal procedure for recovery of the wildlife trophy since the inventory form was never recorded or produced during the trial which procedurally ought to have been done.

5. In the same breadth, it was his case that the communication data record form was never produced before the court; that this was important to prove communication between the appellant, PW1 and PW4. Further, he contested his conviction and sentence by arguing that the prosecution evidence was riddled with contradictions and uncorroborated evidence and as such, the same could not meet the threshold set for a criminal case. In the same vein, it was his case that the prosecution failed to summon witnesses that had allegedly been mentioned in court and further, the charge sheet was defective and as such, the ground upon which his conviction and sentence was found, was shaky. In the end, it was prayed that this court quashes his conviction and thereafter sets aside the sentence meted out by the trial court.

6. The 2nd appellant submitted that the prosecution failed to prove its case beyond reasonable doubt to sustain his conviction. That the evidence adduced by the prosecution was contradictory, inconsistent, insufficient and inconclusive to sustain a conviction. He also submitted that the trial magistrate disregarded his defence without giving cogent reasons for the same. In the end, the 2nd appellant urged this court to quash his conviction and set aside the sentence meted out by the trial court.

7. The respondent submitted that this appeal is devoid of merit and should be dismissed in that the ingredients of the offence were proved beyond reasonable doubt. The respondent however conceded that indeed the charge sheet captured section 92 of the Act instead of section 95 but that notwithstanding, it was its case that the same was cured under section 382 of CPCgiven that the appellants were aware of the offence facing them and that they suffered no prejudice. In regard to whether failure to produce inventory was prejudicial to the prosecution’s case, it was submitted that even though failing to prepare an inventory of recovered exhibits is a procedural step, failure to do so did not prejudice the accused persons or vitiate trial; reliance was placed on the case of Leonard Odhiambo Ouma &others v Republic [2011] eKLR. That PW1 and PW4 may not have prepared an inventory, but their oral testimony cannot be disputed because the chain of possession of the exhibits was consistently explained. As such, it was contended that the appellants did not demonstrate how the same prejudiced them. The respondent denied that its evidence was contradictory and submitted that the same was corroborated in all material particulars.

8. On sentence, it was the respondent’s case that the economic impact of the offence herein on the country and her future generations was taken into account by the court in establishing the appropriate sentence and further, section 95 of theWCM 2013 provides a fine of not less than one million shillings or imprisonment for a term of not less than 5 (five) years or to both such imprisonment and fine. In the end, it was urged that the appeal lacks merit given that the trial magistrate used her discretion to mete out the said sentence.

9. This being a first appeal, I am mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that:-“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”. [See Pandya v Pandya (1957) EA (336].

10. The main issue for determination in this case, is whether the prosecution proved its case beyond reasonable doubt. It is incumbent upon the prosecution to prove its case beyond reasonable doubt. Put, differently, onus of proof in criminal matters rests with the prosecution. However, in certain circumstances, such as those in section 111 of the Evidence Act, the burden of proof shifts to the accused and in such cases, the standard of proof is the balance of probabilities.

11. The main ingredients of the offence herein is well summarized in the High Court decision in Peter Mwangi Kariuki v Republic (2015) eKLR as;(a)Proof of possession without a permit;(b)Proof that the items in question were game trophies.

12. The offence of being in possession of wildlife trophies contrary to section 95 of Wildlife Conservation and Management Act (WC & MA) of 2013 is described as follows;"Section 95 Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine."

13. The legal concept of possession is defined under section 4 of the Penal Code as:"(a)Be in possession of or to have possession includes having in one's own personal possession but also knowingly having anything in the actual possession custody of any other person or having anything in any place whether belonging to or recapped by oneself or of 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 of possession it shall be denied and taken to be in the custody and possession of each and all of them."

14. Under this section, the definition of possession connotes two elements being in physical control of the items of the offence and it includes joint control with another. Secondly, knowledge or intention of having the article, instruments, thing or items constituting the offence.

15. Therefore, on the question of possession, the same involves having a degree of physical control over the trophies, with the person in control knowing that the trophies are in his control.

16. In Warner v Metropolitan Police Commissioner (1969) AC 256 and Republic v Chatwood (1980) 1 All ER 567, it was held that possession must include knowledge that the item possessed is in control of the person possessing it. In Peter Mwangi Kariuki vs Republic (supra) where Justice Mativo defined possession as follows:“Possession includes two elements; namely being in physical control of the item and to be guilty of possession, an accused person must be shown to have knowledge of two things, namely that the accused knew the item was in his custody and secondly, he knew that the item in question was prohibited. A person has possession of something if the person knows of the presence and has physical control of it or has power and intention to control it.”

17. Further, the scope of the doctrine on common intention as defined under section 21 of the Penal Code as provided for herein is to the effect:“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

18. In the case of Njoroge v Republic1983 KLR 197 and Solomon Munga v Republic 1965 EA 363 where both courts had this to say on the principle of common intention thus.“If several persons combine for an unlawful purpose and one of them kills a man, it is murder in all who are present whether they actually aided or abated or not, provided that the death was caused by act of someone of the party in the course of the endevours to effect the common object of the assembly.”

19. The onus was on the appellants to disapprove possession of ivory tusks as stated under section 111 of the Evidence Act;“When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exception from or qualification to, the operation of the law creating the offence with which he is charged and the burden proving any fact especially within the knowledge of such person is upon him. Provided that such burden shall be discerned to be discharged if the evidence given by the provision, whether in cross-examination or otherwise, that since circumstances of facts exists”.

20. PW1 testified on how together with his colleague PW4 effected arrest on the appellants herein after having received information in relation to the said trophies. He reiterated how the appellants were brought by motorcycle riders and that when the tusks were brought, the same were placed inside a motor vehicle which was meant to transport the said trophies. That the two appellants entered the vehicle and the motor cycle riders left. It was his statement that the two trophies weighed 13. 4 and 11. 10 kgs. On cross examination, he reiterated that the 1st appellant is the one who brought the trophies and thereafter entered the motor vehicle and thereafter, the 2nd appellant also came and entered the same motor vehicle where the transaction was to be concluded.

21. PW2, the investigating officer testified that the appellants were arrested by two KWSofficers for having possession of two tusks and he rearrested them and thereafter charged them. It was his case that the appellants were looking for a market but little did they know that the alleged buyers were officers of KWS. On cross examination, he reiterated that in his investigations, he took the possession of the trophies and forwarded them to National Museum to confirm whether the same were real trophies and via a report dated June 19, 2020, PW3 confirmed that indeed the same were unprocessed ivory probably from one elephant. [See P Exh7].

22. PW3, a researcher at the National Museum of Kenya and who examined the two exhibits to ascertain whether they were elephant ivory, testified that after investigations, she found that the two exhibits were ivory which matched well with one another and thereby reaching a conclusion that the tusks were from one elephant. [See P Exh7].

23. Possession is defined in Black’s Law Dictionary as;“The detention and control, or manual or ideal custody, of anything which may be the subject of property, for ones use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons. 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 anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person; 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 and taken to be in the custody and possession of each and all of them.”

24. The prosecution’s evidence points to the fact that the appellants were found in actual possession of the wildlife trophies. The 1st appellant sought a buyer who could purchase the said trophies thus leading them to the awaiting dragnet of the KWS officers. It is therefore my view that despite the 2nd appellant evidence of not having knowledge of what the 1st appellant was carrying and that notwithstanding, the fact that upon alighting from the motor cycle rider and taking himself to the awaiting unmarked vehicle is beyond any natural coincidence even if, he was not the person who literally carried the physical tusks. In my humble view therefore, the blameworthiness was successfully and legally imputed upon the appellants.

25. The court cannot draw a negative inference for the prosecution’s failure to call any person mentioned during the trial. As stated in the Court of Appeal in Roba Galma vs Republic [2015] eKLR where the court stated that;“Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”Furthermore, section 143 of the Evidence Act cap 80 laws of Kenya states that no particular number of witnesses shall be required to prove any fact in the absence of any provisions of law to the contrary. [See Kipngetich & 2 others v Republic (Criminal Appeal 20 of 2019) [2021] KEHC 447 KLR].

26. On whether the appellants’ defences were considered, the trial court found that, the defence evidence failed to convince it and found that the prosecution proved its case beyond reasonable doubt against the appellants herein.

27. The position taken by the Kenyan courts is that contradictions or inconsistencies to merit disturbance of a conviction must be grave and not just any inconsistency. The appellants submitted that the charge sheet read that the offence was committed on April 28, 2020 at around 1418hrs at Kiritiri area while the memo form indicated time, date and place as 1647 hrs, April 28, 2020 at Kiritiri. The Court of Appeal in Richard Munene v Republic [2018] eKLR set the law on what inconsistency or contradiction would sway the court when it said : -“It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it.”(Emphasis added).

28. Further, this court also notes that the section under which the appellants herein were charged is under section 92 of the Act, but I wish to clarify that the said section creates a complete and distinct offence with a distinct penalty and as such, the relevant section under which the appellants ought to have been charged should have been section 95 of the Act. [See section 179 of CPC]. Therefore, it is my humble finding that the same is not material as to prejudice the appellants since the charges and the particulars were read out to them when they took plea.

29. I have carefully gone through their defences and I do agree with trial the court that the defences lacked merit and were baseless. Having found their defences to be evasive, and meant to divert from the real issues herein on how they were seen, found and arrested with the luggage with the ivory pieces, the 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. In my view, therefore, together with all the considerations as already discussed in the judgment herein, I reach an informed conclusion that the convictions of the appellants were safe and the same should not be disturbed at all.

30. On sentencing, it was argued that the trial court meted out a harsh and excessive punishment without taking into account the period the appellants had spent in lawful custody as part of the sentence.

31. The only sentence provided for under section 95 of the Wildlife Conservation and Management Act, 2013 under which the appellants were charged, is a fine of not less than one million shillings or imprisonment for a term of not less than five (5) years or to both such imprisonment and fine.

32. The appellants were first offenders and the court imposed a fine of Kshs 20,000,000/= million or in default to serve 20 years imprisonment. The fine provided for under section 95 is one million and not the 20,000,000/= imposed by the trial court and therefore the said fine is illegal. I also find the sentence of 20 years to be harsh and excessive. Under Judiciary Sentencing Policy Guidelines para 23 being a first offender is a mitigating factor.

33. Thus the court is minded to reduce it and substitute it with a lesser one. Having that in mind, the court makes the following orders;i.The appeal fails on conviction and succeeds partially on sentence.ii.The sentence of fine of Kshs 20,000,000/= (twenty million) and in default 20 (twenty) years imprisonment for each appellant is set aside.iii.Appellants are each sentenced to a fine of Kshs 1,000,000/= (one million) and in default to serve a sentence of 10 years. The period of 391 days that each of them spent in custody be deducted from their sentence term.

34. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 9TH DAY OF NOVEMBER, 2022. L. NJUGUNAJUDGE....................for the Applicant....................for the Respondent