[2022] KEHC 11827 (KLR)

Ouma v Republic (Criminal Appeal E011 of 2021) [2022] KEHC 11827 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11827 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal E011 of 2021

KW Kiarie, J

July 21, 2022

Between

Jeniffer Akoth Ouma

Appellant

and

Republic

Respondent

(From the original conviction and sentence in Criminal Case No 44 of 2019 of the Principal Magistrate's Court's Court at Ndhiwa by Hon Mary A Ochieng - Principal Magistrate)

Judgment

1. Jeniffer Akoth Ouma, the appellant, was convicted of the offence of possession of wildlife trophy contrary to section 92(4) [sic] of the Wildlife Conservation and Management Act, 2013.

2. The particulars of the offence were that on the February 13, 2019 at Ndhiwa Township, Ndhiwa Sub County within Homa Bay County jointly with others were found in possession of four pieces of elephant tusks with a street value of Kshs 600,000/= without a permit.

3. The appellant was fined Kshs 20 million or serve twelve life imprisonment. She was dissatisfied and has appealed against both conviction and sentence. She was in person and raised grounds of appeal as follows:a.That the trial magistrate erred in law and facts by sentencing the appellant to serve life imprisonment for the said offence without taking into consideration that life imprisonment is harsh and excessive hence a violation of the provision of the provision in article 50 (2) (p) of the Constitution.b.That the trial magistrate erred in law by relying on the evidence of the investigation officer who did not conduct any investigation and if there was any then it was shoddy.c.That the trial magistrate erred in law and facts by not considering that the present case was marred with a lot of malpractices by my co-accused who were released before the case was terminated in order to defeat justice.d.That the trial magistrate erred in law and facts by not taking into consideration that the appellant was a visitor in the said house where the trophies were found and the people who ought to have been held responsible were the owners of the house but instead they were discharged living me to carry the burden.e.That the trial magistrate erred in law and facts by not considering defence evidence.f.That the trail magistrate erred in law and facts by imposing a mandatory life sentence without consideration of mitigation on the age, marital status sex and that the appellant was the sole bread winner.g.That the trail magistrate erred in law and facts by relying on the sole evidence of PW1 & PW3 who are wife and husband without taking notice that there was no any eye witness or and independent witness to corroborate their evidence.h.That the trial magistrate erred in law and facts by not taking into consideration that the said wild life trophies were not in appellant’s possession.

4. The state conceded the appeal through Mr Ochengo, the learned counsel. He contended that it was a mistrial and therefore requested for an order for retrial.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32.

6. Section 92(4) of the Wildlife Conservation and Management Act, 2013 does not exist. The accused was therefore charged under a non-existent law. Though this was the case, the particulars of the offence were clear and disclosed an existing offence. This error is therefore curable under section 382 of the Criminal Procedure Code.

7. The evidence against the appellant was by her co-accused in whose house the game trophy was found. This is therefore evidence of an accomplice. In the case of Karanja & another v Republic [1990] KLR 589 the Court of Appeal stated:The corroboration which is required of an accomplice’s evidence is in the nature of some independent additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon.The rationale is to avoid a shrewd co-accused from shifting the blame to his weaker co-accused.

8. In the case of Martin Mwenda Murega v Republic [2021] eKLR the court held:Evidence given by a co-accused person against another should only made a basis of conviction if it is found credible and when corroborated in some material particulars by independent evidence pointing to the guilt of the accused and only when it implicates the person giving the evidence of the crime.

9. The co-accused in this case were a husband and wife. They blamed the appellant and exonerated themselves. Though the trial court said she believed them, I find their contention to be hollow. The game trophy was recovered in their house inside one of the rooms. They contended that the appellant had just entered into their house when police officers went knocking at their door. Their contention sounded hollow for it did not explain when and how the appellant accessed their inner room. There being no other evidence by the prosecution against the appellant, the evidence by the co-accused was unsafe to base a conviction on.

10. In the case of Stephen Twanze & another v Republic [1998] eKLR the Court of Appeal stated:Apart from the evidence of the two co-accused incriminating the second appellant in the crime there is no other evidence against him and we fail to understand why his appeal to the superior court was dismissed. We allow his appeal, quash the conviction, set aside the sentence and order that he be set at liberty forthwith unless otherwise lawfully held.

11. I would say the same in this case and allow the appeal. The appellant is set at liberty unless if otherwise lawfully held.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE