https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8252

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CRIMINAL APPEAL NO E024/2024** **MASHUBA IVUTI……………………………………………1ST APPELLANT TITO MUNGUTI……………………………………………2ND APPELLANT MUEMA KAMUTI…………………………………………3RD APPELLANT** **VERSUS** **REPUBLIC……………………………………………………RESPONDENT** *(Being an appeal against both conviction and sentence by Hon.Benson Ireri (SPM) delivered on the 7th March 2024 at Makindu law courts criminal case no.520 of 2017)* **JUDGMENT** 1. On 19th June 2017, the Appellants were charged in Makindu Criminal Case No. 520 of 2017 with the charge of being in possession of wildlife trophy without a permit contrary to section 92(4) of the Wildlife Conservation and Management Act of 2013. The particulars were that on the 18th day of June,2017, at Kibwezi Township, in Kibwezi Sub-county, they were found in possession of a wildlife trophy namely Elephant tusks with a street value of Kenya Shillings 1.6Million without a permit. 2. The Appellants pleaded not guilty to the charges and a plea of not guilty was entered. 3. The matter was set for hearing and the prosecution called 3 witnesses. Upon the closure of the case for the prosecution the appellant s were each put to his defence. 4. By a judgement delivered on the 7th March, 2024, the trial court found the appellants persons guilty as charged and convicted them accordingly. Each was sentenced to pay a fine of Kshs.1,000,000/= and in default each accused person to serve 5 years imprisonment. 5. Aggrieved by the decision of the trial court the Appellants lodged this appeal on the following grounds: 6. *THAT, the learned trial magistrate erred in both law and fact when he convicted and sentenced the appellants without considering that the case was not proved beyond reasonable doubt.* 7. *In addition, the appellants set out their mitigation* 1. *THAT, they did not plead guilty to the charge, however they humbly beg the Honourable court to allow them to mitigate as far as the sentence is concerned* 2. *THAT, they humbly beg this honorable court to consider them for leniency as the sentence was harsh and excessive as a whole.* 3. *THAT, they are the sole bread winners of their family hence their continued stay in prison will ruin the lives of their family.* 4. *THAT, they humbly beg the Honourable Court to have leniency on them and allow them join back the society as currently to abide by the rule of law in society.* 5. *THAT, given the opportunity of going out there they promise to remain as law abiding citizens and an ambassador ensuring that other citizens will also abide by the law.* 6. *THAT, they pray this honorable court to consider their plea for leniency over the long term imprisonment as far as the mitigation factors are concerned.* 8. The appellants seek that the appeal be allowed in totality the conviction be quashed and the sentence set aside and they be set at liberty. 9. The appeal was canvassed by way of written submissions. **The Appellants** 1. It is the appellants’ position that had the learned trial magistrate subjected the prosecution evidence to an exhaustive examination and scrutiny, he would have found that there were fatal doubts and gaps in that case: That the key ingredients of the offence were not sufficiently established. They rely on [Omar Guyo Omar v Republic [2021] KEHC 755 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/755/eng%402021-12-30) 2. On the duty of this court as a first appellate court they rely on PANDYA VS R 1957 E.A 336. 3. They submit that on a first appeal they are entitled to a reevaluation of the evidence as a whole and for the court to draw its own conclusion from the same. 4. On the issue of inconsistence and contradiction of prosecution evidence the appellants review the evidence placed before the trial court thus: That pw 1 stated that he arrived with his 3 colleagues at Kibwezi at around 8.00pm, yet his other **colleague stated** that they arrived at Kibwezi at around 6.00 pm. That PW 1 stated that the accused were four in number, three were short and one was tall, while PW2 stated that there were the two short ones, and the two tall ones. That their statements are an indication that their case was crafted, choreographed and fabricated and the court ought not to have relied upon it to convict them. 5. That PW2 stated that he could not remember whether any photographs of the exhibits were taken at the scene. The appellants query this how could the investigating and arresting officers, complete the whole arresting and investigation process without having taken photographs the exhibits in question? 6. It is their case also that the time between the arrest and the time the alleged elephant tusks were received by the Research Scientist in Nairobi for analysis raises eyes brows. That according to the prosecution evidence, the elephant tusks were confiscated on 18th June,2017, they were received by the Research scientist on 27th July,2017 a difference of one month and eleven days. They argue that article 50(c)(j) of the Constitution was totally violated in that all exhibits should be given to the government analysts immediately after the accused person arrested and the accuse served with the report. 7. They argue that there was a possibility the ivory which was before the court was from police stores and not from the appellant and the case was a premeditated plan from a cartel of people having been organized to victimize appellants . 8. That their right to be informed in advance of the evidence the prosecution intends to rely on and have reasonable access to that evidence as expressly provided for in our Constitution was violated. They rely on **THOMAS PATRICK GILBERT CHOLMONDELEY VS REPUBLIC 2008[eKLR]** 9. On the issue of a harsh sentence, they submit that the evidence by the prosecution witnesses lacked credibility and the sentence of 5 years in this case was harsh and excessive. 10. In the event that the court agrees with the trial court the appellants submit for a lenient sentence; that they have engaged themselves with the rehabilitative programs within the Prison facilities and have learnt skills like tailoring and carpentry which may be of help to them when they leave prison. They pray to be given a favorable sentence considering the following mitigation factors namely:- * 1. *The appellants come from a very humble background and the 1st appellant was elderly man at the time of the incidence.* 2. *The applicants are first offenders.* 3. *The appellant were un-armed and did not commit the offence against multiple complainants* 4. *The appellant have been remorseful even up to now.* 5. *The appellant seek for re-integration with the society.* 6. *The appellants are well rehabilitated.* 11. Further on this issue of the sentence the appellants urge the court to be guided by the decision of the Supreme Court in **FRANCIS KORIOKO MURUATETU VS REPUBLIC** and others for instance **STATE VS OSCAR PISTORIOUS, (citation) the holding of** (MASIPA J) where the High Court of South Africa held that the court is bound to take into consideration the main purpose of punishment, namely prevention and rehabilitation and which must be accorded due weight in the sentence. 12. The court was also referred to the judiciary sentencing policy guidelines. It is submitted that the Supreme Court endorsed the four tier methodology for determination of custodial sentence and that the court must consider both the aggravating and mitigation circumstances cataloged in paragraph 23.7 and 23.8 of the sentencing guidelines. **The Respondent** 1. The respondent submits that this Appeal raises three issues for determination: 2. *Whether the prosecution proved its case beyond reasonable doubt* 3. *Whether the sentence is fair and proportionate* 4. *Whether this Court should review or vary the sentence* 5. On Whether the prosecution proved its case beyond reasonable doubt, it is submitted that a per the evidence of PW1 and PW2, the Appellants were found at the scene of crime, they were looking for someone to buy two elephant tusks which were in their possession at the time of arrest. That PW1 and PW2 posed as buyers and managed to arrest who did not have a permit to deal with wildlife trophies . 6. That the evidence of PW1 was consistent with that of PW2. That their evidence was corroborated by the evidence of PW3 and PW4. That the Appellants did not deny being at the scene or having been in possession of the two tusks at the time of arrest. They argue that the Appellants gave inconsistent testimonies in their defence which the trial court rejected as being untrue. 7. The Respondent urges the court to reject the Appellant’s’ evidence. The respondent relies on [James Makere Dullu v Republic [2020] KEHC 5279 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5279/eng%402020-05-05) where the court rejected similar version of uncorroborated evidence in a similar case. 8. On whether the sentence was fair and proportionate, the respondent argues that Section 92 (4) of the Wildlife Conservation and Management Act provides as follows: *“…Any person who 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…”* 23.They submit that sentence imposed by the trial court was the minimum sentence provided by law. The respondent relies on [Jackson Lochibal v Republic [2022] KEHC 939 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/939/eng%402022-04-21) where the minimum sentence in a similar case was upheld by the High Court as follows: *“…Once the trial court decided, as it did, that the Appellant deserved a custodial sentence, its hands were tied by the law as to the minimum number of years it could award him. In this case it was seven (7) years imprisonment, and that is what he got!...There is absolutely no reason for this court to interfere with that minimum term of imprisonment (by law) that the Appellant was awarded. I find no merit in this appeal against sentence. It is hereby dismissed. It is so ordered…”* 1. It is submitted that the trial court into account all relevant factors including the fact that elephants are generally endangered species therefore ought to be protected. The court was referred to **James Makere Dullu v Republic [supra]**. **Benson Nkaramata Sakita v Republic [supra]** where the court reiterated the principles to be considered in determining whether or not to review a sentence. 2. It is submitted that the Appellants have failed to establish that they deserve the prayers sought in the Appeal. **Analysis and Determination** 1. I have considered the grounds of appeal, the entire record and the submissions made by both parties. **The issues for determination are as follows:-** 2. ***Whether the prosecution proved the charge beyond reasonable doubt.*** 3. ***Whether the prosecution’s case was marred with inconsistencies and or contradictions and if at all it affected the prosecution’s case.*** 4. ***Whether the sentence was lawful and commensurate to the offence*.** 5. As a first appellate court the duty is to analyse and evaluate afresh all the evidence adduced before the lower court. See **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****.”* 1. More recently in **Kiilu & Another vs. Republic [2005]1 KLR 174**, that: *1. 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.* *2. 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.* 1. The prosecution called four (4) witnesses. 2. **PW 1, No. 7511 Athman Kassim Ibrahim**, a KWS prosecution officer based at the Nairobi headquarters testified that on 17.06.20217 at around 5.00 p.m. he was at the KWS headquarters when he received an intelligence report about people in Kibwezi area who were in possession of elephant tusks and were looking for a buyer. He told the court that he immediately left for Kibwezi in the company of three other officers including one Hassan Maroa. He told the court that he travelled with the other three officers in unmarked motor vehicle and arrived in Kibwezi at around 8.00 p.m. He told the court that according to the intelligence report he received; the tusks were to be sold at Kibwezi East View Hotel the following day at 11.00 a.m. He told the court that at around 11.00 a.m. he was at the aforementioned hotel in the company of the other three officers when he saw the Appellant in the company of three other people carrying two heavy white sacks. He told the court that he inspected the contents of the two sacks and found two elephant tusks. He further told the court that none of them had a permit. He told the court that with the help of the other officers, he arrested the four people, escorted them to the Kibwezi Police Station and later had them charged in court with dealing in wildlife trophy without a permit. 3. **PW 2, no. 8917 Hassan Maroa** testified that he was the KWS investigations officer and that he was previously attached at the KWS Headquarters. That at the time of the alleged offence he was based at Nairobi . He said that on the 17th June,2017 his colleague, Ibrahim called him and informed him that there were people in Kibwezi who were in possession of ivory. That they agreed to meet at the office and they planned an operation. The three of them left Nairobi using an unmarked vehicle and arrived at Kibwezi at around **6:00p.m**, at the time, he was in communication with the informer where they were informed that the trade was scheduled for the following day. He said that they spent the night at Kibwezi and that they were given the description of the people whom they were informed were four male adults. 4. He said that at around 10:00a.m, they laid an ambush at Eastview Hotel when four men appeared and they identified them as per the description they had been given and the men were carrying sacks and they appeared suspicious. They intercepted them and identified themselves as KWS officers, the 1st and the 2nd accused persons were carrying one sack while the 3rd and the 4th accused were carrying the second sack. He said that they searched the two luggage’s and found 2 pieces of ivory inside the two sacks, they asked them to produce the permit but they did not have. He said that they arrested them and they escorted them to Kibwezi police station. He prepared the inventory dated 18th June,2017 which indicated that 2 elephant tusks and two manila sacks were recovered. The inventory was signed by himself and his colleague and the four accused persons. PW 2 identified the two ivory and the inventory and the exhibits herein, he identified the four accused persons in court. 5. PW3 **Esther Nguta** was a Research Scientist at the National Museums of Kenya . On 27th July 2017 she received from Kibwezi police station exhibits which she was to ascertain whether they were wildlife trophies. They were accompanied by an exhibit memo. she examined the same and found that they were elephant ivory, they were a pair from the same African elephant. she produced the report . She said that the tusks had not been recently removed from the elephant but she could not tell when that removal had happened. 6. **PW 4, no. 83964 CPL Rama Mosui** attached to Kibwezi Police Station, was the investigating officer . He testified that he took over the file from one PC Cyrus Kati who had been transferred. He perused the police file and found that on 17th June 2017 Cpl Ibrahim PW1 had received intelligence about the four accused selling elephant tusks. That KWS officers posed as buyers of the tusks near East View Hotel and met with the four accused persons who had two elephant tusks. That the accused persons did not have permits and they were arrested. He was handed over the tusks which he marked as a and b and the inventory was prepared on the 18th June 2017. He produced the tusks and the inventory as evidence. 7. On cross examination he told the court that he was not aware of the identity of the accused persons and that he did not interrogate them . That even the initial I.O did not interrogate them. 8. The Prosecution closed its case and the appellants were put on their defence. **The DEFENCE CASE** The first appellant Mashumba Ivuti testified that at the material time he was a watchman at Neema Private School. That while from there he met the 1st 3rd and 4th appellants who were from his home area. While talking some people came and asked them to assist them to carry luggage and look for buyers . He said they assisted the men. That the 1st appellant was going to buy them tea when they were arrested and taken to the police station where they were told that they were ferrying tusks . He denied that he was working at the stage ferrying luggage for people The second appellant Tito Munguti testified that he was the 3rd accused. He denied committing the offence. he told the court that he , and his co appellants were ferrying luggage for two men who were going to the stage. They had no idea what was in the luggage . They were shocked when they were arrested. he confirmed that they met DW1 who had offered to buy them tea. That DW1 was not carrying anything. The third appellant Muema Kamuti also confirmed the testimony of the 2nd appellant that they were just ferrying luggage for customers at the stage ; that those who arrested them did not follow the owners . That upon arrest they were taken to the police station where they were told that what they were ferrying were elephant tusks. 1. **It is evident from the testimony of PW1 and PW2 that they state different times of arrival on the previous night. It is also evident that that it is not in dispute that the 4 appellants were found within the place where the two bags which turned out to contain the elephant tusks.** 2. **The defence of the 1st appellant is that he was not a luggage carrier at time of the offence, but a watchman at a nearby school. However, he was among those who assisted to carry the luggage.** 3. **Though they were all found together , it is the evidence of the PW1 and PW2 that they had a description of the people who were having the tusks . According to PW1 they were expecting four persons. The description was that two of the persons would be elderly and one was tall.** 4. **The appellants were placed at the place where the tusks were found by the PW1 and PW2. They also accept to being found ferrying the luggage that ended up having the tusks in them .** 5. **Does the fact that they were hired or requested to carry luggage by other persons make a difference?** 6. **There is no evidence that these appellants were hired as they allege or that they were assisting anyone.** 7. **The duty to peeve a charge against an accused person lies squarely on the Prosecution. However, when an accused person puts out a defence it needs to be believable. The trial magistrate heard the appellants and found their defence inconsistent and unbelievable..** 8. **The Appellants on their part raised the issue that the prosecution’s case was marred with inconsistencies/contradictions.** 9. the court in [Cyrus Maina Gakuru v Republic [2016] KEHC 4144 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/4144/eng%402016-07-21)**, cited the Nigerian Court of Appeal case of David Ojeabuo vs Federal Republic of Nigeria {2014} LPELR-22555(CA) where it was stated;-** ***"Now, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains."*** 1. **In Philip Nzaka Watu v. Republic [2016] e KLR, the Court of Appeal held:-** ***“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses.*** ***Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question*”.** **See also Twehangane Alfred vs Uganda (Cr.App.No.139 of 2001(2003) UGCA** 1. **In the above cited cases, it was held that contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. I did not find that to be the case in this case.** 2. **Section 95 of the** Wildlife Conservation and Management Act [Cap. 376](https://new.kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04) *Any person who, without a permit or exemption granted under this Act in relation to a species not specified under*[*section 92*](https://new.kenyalaw.org/akn/ke/act/2013/47/eng%402025-11-04#part_XI__sec_92)*—* *(a)kills or injures, tortures or molests, or attempts to kill or injure, any wildlife species;* *(b)deals in a wildlife trophy;* *(c)deals in a live wildlife species;* ***(d)is in possession of a wildlife trophy or live wildlife species****; or* *(e)manufactures an item from a wildlife trophy, commits an offence and shall be liable on conviction to a fine of not less than* ***one million shillings or a term of imprisonment of not less than twelve months or to both such fine and imprisonment*** 1. **Section 92 Offences relating to endangered and threatened species states ;** *(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.* 1. **According to the** SIXTH SCHEDULE [s. 47.] of the Act which provides for NATIONALLY LISTED CRITICALLY ENDANGERED, VULNERABLE, NEARLY THREATENED AND PROTECTED SPECIES **the *Loxodonta Africana* or the African elephant is in that list.** **As such the sentence is a s provided for under s. 92(4 ) of the Act.** 1. **The prosecution established the case against the three appellants** 2. **The trial court did not issue a harsh sentence but issued the sentence as per the law.** 3. **From the foregoing I find that the appeal by the appellants has no merit . The same is dismissed.** 4. **The conviction and sentence of the subordinate court is sustained.** **Judgment dated signed and delivered virtually this 29th May 2026** **MUMBUA T MATHEKA** **JUDGE** **Appellants present in open court** **CA Chrispol** **Musyoki for State**