[2023] KEHC 26511 (KLR)

Ntemayiai & another v Republic (Criminal Appeal E031 of 2022) [2023] KEHC 26511 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26511 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal E031 of 2022

DR Kavedza, J

December 8, 2023

Between

Jeremiah Leiyo Ntemayiai

1st Appellant

Jeremiah Ntoyai Monkesia

2nd Appellant

and

Republic

Respondent

(Being an appeal against the conviction and sentence delivered by Hon. Nthuku, PM on 14th October 2021 in Loitoktok Magistrate’s Court Criminal Case No. 117 of 2020 Republic vs Jeremiah Leiyo Ntematiai & Jeremiah Ntoyai Mokesia)

Judgment

1. The appellants were charged and after a full trial convicted for the offence of dealing in wildlife trophies without permit contrary to section 92 (2) of the Wildlife Conservation and Management Act, 2013. The particulars were that on 29th August 2020 at around 1600Hrs, the appellants at Enkii area of Loitoktok Sub-county within Kajiado county were found dealing in wildlife trophies namely five pieces of elephant tusks being an endangered species, weighing approximately 30. 5kgs in total with estimated street value of Kshs. 3,050,000/- with motorbike Reg No. KMCJ 158J. They were subsequently sentenced to serve ten (10) years imprisonment.

2. Being dissatisfied with the conviction and sentence, the appellants have filed a petition of appeal in which they have raised 7 grounds. In a coalized form, they are as follows.

3. First, that the trial court erred in finding that the prosecution had proved its case beyond reasonable doubt. Further, that the trial court erred in relying on circumstantial and secondary evidence in convicting the appellants. Lastly, that the sentence imposed against them was against the weight of the evidence adduced.

4. The appeal was canvassed by way of written submissions. The appellants submitted that that the prosecution did not prove that they were in possession of the elephant tusks. Further, that the prosecution failed to prove they were dealing in wildlife trophy as no buyer was found. The appellants further faulted the prosecution for failing to call the informant who reported the incident to Kenya Wildlife Service (KWS).

5. As this is the appellant's first appeal, the role of this appellate court of first instance is well settled. It was held in the case of Okeno vs Republic [1972] EA 32 and further in the Court of Appeal case of Mark Oruri Mose vs R [2013] eKLR that this court is duty-bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that.

6. The prosecution called seven (7) witnesses in support of their case. Nicholas Mumo Kiminza (PW1), a ranger with big life foundation, told the court that on 29/8/2020 at around 1pm, he was at Kimana Sanctuary when he received a report that two men in Kimana Town had elephant tusks and were looking for a buyer. He informed his senior, Joza (PW3), and went to Kimana town in the company of PW2 to search for the two men. On arriving near PEFA church, they found two men on a motorcycle registration KMCJ 158B who fit the description of the suspects and they immediately started trailing them with another motorcycle. On arriving at the junction at Langata road, the suspects stopped to make a call and it is then that the 1st appellant saw the rangers and alighted and ran off. PW2 then jumped and arrested the 2nd appellant while the 1st appellant escaped. He told the court that they directed their colleagues to the area the 1st appellant ran to and soon PW3 arrived with a motor vehicle. PW2 also arrested the 1st appellant who by then had been intercepted by PW3. After arrest, both the appellants led the rangers to the right side of the road where there was a house. The appellants then directed PW1, PW2 and PW3 to an area behind the house where they found sacks with 5 elephant tusks. They photographed the same and took the appellant and the tusks to Loitokitok police station.

7. Stonic Lemora (PW2), corroborated the evidence of PW1 and told the court that they trailed the appellants from Kimana Town to Pipeline area where they arrested the appellants. He further told the court that the appellants led him, PW1 and PW3 to a house where they had buried the elephant tusks and covered them. They dug and removed 5 green sacks with elephant tusks. He stated that the house belonged to the 2nd appellant.

8. Joosa Longutiti (PW3), a ranger with big life foundation told the court that on 29/8/2020 at around 1pm, PW1 informed him that he had received intelligence that two suspects in Kimana Town were looking for buyers of elephant tusks. He allowed him to go and investigate the matter in the company of PW2. He further stated that he assisted to arrest the 1st appellant who had run away and was being chased by PW2 and the appellants subsequently led them to a house by the side of the road where the elephant tusks were recovered.

9. No. 236155 C.I James Kiprotich (PW4) testified that he is based at DCI Headquarter Nairobi performing crime scene investigations duties.He stated that on 4/9/2020 while at DCI Headquarter he received a compact Disk accompanied by exhibit memo form from one KWS Officer Sgt Daudi Mohamed. He was requested to process the photos in the CD and write a report. He produced a total of 6 photos. In the picture, there was motorcycle reg. no. KMCJ 158B blue, elephant tusks wrapped in green gunny bag. he certified the photos and prepared a report. He produced the photos and report as exhibits.

10. Dr. Ogeto Mwebi (PW5), of national museums of Kenya as a researcher testified that they deal with analysis of animal parts to establish which animal they belong to. He stated that on 4/9/2020 KWS officer Daudi Mohamed presented to him 5 pieces of animal parts and sought to have me establish the animal they came from. They were marked NM A1, NM A3, NM B, NM C. On analysis he found they were all elephant tusks. They belonged to three elephants. The big ones came from 2 different elephants and the three broken pieces were from one elephant. He prepared a report on 4/9/2020 and signed it. He produced it as an exhibit.

11. Smoire Leapa (PW6) of Inkii sub-location and balozi Nyumba Kumi told the court that on 9/2020 he was visited by KWS officer by the name Daudi. He told the court that the 1st appellant was a good person who used to work as a clerk at KAG church and his father was a bishop in the said church. On the other hand, he said that the 2nd appellant was not well known to him and thus he did not know his character.

12. KWS No. 7359 Sergeant Daudi Mohamed (PW7), the investigating officer, told the court that on 29/8/2020 at around 5pm he received a call from Lenga of big life foundation informing him that they had arrested 2 people in Inkii area with elephant tusks in a sack tied with rubber bands. They had also recovered a motorcycle. He photographed the exhibits and prepared an inventory which was signed by the rangers and the suspects. He visited the scene the following day. One tusk was big and 4 were small. He produced the same as exhibits.

13. The appellants were found to have a case to answer and put on their defence. The 1st appellant (DW1) tendered sworn evidence and called one witness. He stated that he stays at kuku and he is not employed. He further stated that on 29/8/2021, he spent the spent the day in the shamba until 3pm when KWS vehicle came and officers arrested him and took him to Loitokitok police station. The following day they forced him to sign inventory and the following day he was charged with this offence. He said he has never seen ivory in his life. He only saw it in court.

14. Kasaine Pasieko (DW2) told the court that he is a farmer and the 1st appellant was his neighbor. He stated that on the material date, he was with the 1st appellant among other people at the shamba. However, at around 2pm the 1st appellant was arrested and they thought it was because he did not have a face mask. He further stated that the 1st appellant was an orphan and a university student. On cross examination, he stated that his name was Isaiah and he was also called Isaac. He maintained that there were many people in the shamba and he did not know the rest despite hiring them. He further told the court that the 1st appellant’s mother was aged and that the 1st appellant was about to join the university.

15. The 2nd appellant stated that on 29/8/2021 he was at a function in Kimana. He had borrowed a motorbike so he went to see his cows drinking water in pipeline area. He further stated that there was a motorbike which was trailing him. It hit his motorcycle and the appellants beat him up and handcuffed him. He stated that the rangers took him to his house where they alighted, searched the compound and returned to the motor vehicle with a sack. He was later taken to Loitoktok police station and charged with the offence.

16. Paul Maningu (DW2) told the court that the 2nd appellant was his neighbor and he borrowed his motorcycle to go see his cows. He later heard that he had been arrested.

17. Joyce Nanginyu Jeremiah (DW3) stated that on the material date, she was at home when she saw a motor vehicle approaching their compound. It was her father’s house and she went outside to found her children screaming. Her husband had been arrested and was beaten together with another man.

18. The court in determining this appeal is to satisfy itself that the ingredients of the offence of dealing in wildlife trophies without permit was proved as required in law, beyond any reasonable doubt. Needless to say, I have carefully read and understood the proceedings and the judgment of the trial court as well as the record before this Court and also the submissions by the parties.

Issues for determination 19. The issues for determination area.Whether the prosecution proved its case against the appellants beyond reasonable doubt.b.Whether the sentence is excessive

Analysis and determination 20. Section 3 of the Wildlife Conservation and Management Act No.47 of 2013 defines “dealer” as any person who in the ordinary course of business or trade carried on by him, whether on his own behalf or on behalf of any other person –a.Sells, purchases, barters or otherwise in any manner deals with any trophy, orb.Cuts, carves, polishes preserves, cleans mounts or otherwise prepares any trophy orc.Transports or conveys any trophy.

21. It was the prosecution evidence that the appellants were dealing with wildlife trophy. PW1 testified that on 29/8/2020 while at Kimana Sanctuary he received a report from KWS that there were two men in Kimana Town with elephant tusks looking for a buyer. He promptly informed his senior, PW3, and proceeded to the area in the company of PW2 to investigate. They found two men with a motorcycle who fit the description of the suspects and trailed them with another motorcycle to Langata where the appellants had stopped to make a phone call. He stated that the 1st appellant, on seeing them, alighted the motorcycle and ran off. The 2nd appellant was however immediately arrested by PW2 who then coordinated with PW3 to intercept and arrest the 1st appellant. The appellants then led PW1, PW2 and PW3 to a homestead at the side of the road where they found 5 green sacks with 5 elephant tusks buried behind the house. The report by PW5 confirmed that indeed the recovered exhibits were elephant tusks.

22. The appellants denied committing the offence they were charged with and submitted that the prosecution did not prove that they were in possession of the tusks. According to the case of Jean Wanjala Songoi and Patrick Manyola versus Republic Criminal Appeal No 100 of 2014 possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others.

23. The evidence before me is that after the appellants were arrested, they took the officers to the home compound of the 2nd appellant where the 1st appellant showed them where they had buried the elephant tusks. DW3, the 2nd appellant’s wife, further confirmed in exam in chief and cross-examination that on the material date, a KWS vehicle went to their compound and the 2nd appellant and another man alighted. A search began and she later learnt that the appellants were arrested for dealing in ivory. It is therefore clear that the second man she was referring to is the 1st appellant herein and that the search was conducted in the 2nd appellant’s compound when she was also present. PW7 produced the inventory which was signed by PW1, PW2 and PW3 as well the suspects upon their arrest indicating that they had been found in possession of 5 elephant tusks, among other items. In that regard, I find that the prosecution proved the element of possession to the required threshold of proof beyond reasonable doubt.

24. As regards the evidence of Kasaine Pasieko (DW2), I find the same to be unreliable for several reasons. First, the 1st appellant stated that his witness was called Isaac and that he was arrested in his shamba. However, when the witness took the stand, he said that his name was Kasaine Pasieko. On cross examination, he said that his other name was Isaac and that he is also Isaiah. Further, he told the court that the 1st appellant was an orphan and was a student in the University. On cross-examination, he maintained that the 1st appellant’s mother was aged and that the appellant was about to join university. Evidently, he is a liar whose testimony cannot be relied on.

25. The appellants submitted that the prosecution evidence did not prove dealing. It is further submitted that neither the prosecution nor the investigating officer proved to the court that the appellants had put in place plans to look for a buyer or prove who the buyer was. As stated above, the prosecution evidence does prove that the appellants were indeed arrested with the elephant tusks. The operating words under the definition of “dealer” include sells, purchases, barters or otherwise in any other manner deals with any trophy. It is not necessary that the transaction must be complete. PW1 told the court that he received a report that men in Kimana Town with elephant tusks looking for a buyer. The appellants were later arrested with the trophies without a licence. The terms “in any manner deals with any trophy” covers what the appellants were doing. If one is found with a wildlife trophy without a licence, he would be in one way or another dealing with that trophy.

26. From the evidence on record, I am satisfied that the prosecution proved its case beyond reasonable doubt. The appellants were found dealing in wildlife trophy without a license. The contention by the appellants is that they were convicted on circumstantial and secondary evidence is not correct. They were arrested with those trophies and the evidence of PW1, PW2 and PW3 were consistent with the events of 29/8/2020.

27. The upshot is that I uphold the conviction.

28. As regards the sentence, section 92(2) of the Wildlife Conservation and Management Act, 2013 provides that upon conviction for this offence, a person shall be liable to a term of imprisonment of not less than seven (7) years. The trial court imposed a sentence of ten (10) years imprisonment. That sentence is therefore lawful.

29. I also find that the offence is a serious one as it portends a threat to wildlife tourism in this country. I agree with the trial court that the circumstances of this case and the kind of offence involved calls for deterrent sentence. I also do not see anything that makes the sentence herein harsh or excessive in the circumstances of the case.

30. Consequently, the appeal succeeds. I hereby resentence the appellants to five (5)years imprisonment from the date of their arrest.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF DECEMBER 2023________________D. KAVEDZAJUDGEIn the presence of:Nyaroita for the StateAppellant presentMateli C/A