[2023] KEHC 26408 (KLR)

Republic v Kogo (Criminal Appeal E087 of 2022) [2023] KEHC 26408 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26408 (KLR)

Republic of Kenya

In the High Court at Kitale

Criminal Appeal E087 of 2022

AC Mrima, J

December 14, 2023

Between

Republic

Appellant

and

Ali Kipkemboi Kogo

Respondent

(Being an appeal on sentence arising from the conviction and sentence by Hon. J. K. Ng’arng’ar (Chief Magistrate) in Kitale Chief Magistrate’s Court Criminal Case No. E1763 of 2021 delivered on 7th December, 2021)

Judgment

1. The Respondent herein, Ali Kipkemboi Kogo, was charged with two others with offences under the Wildlife Conservation and Management Act, 2013 (hereinafter referred to as ‘the Wildlife Act’).

2. The offences were Dealing in wildlife trophy of a critically endangered species without a permit or other lawful exemption contrary to section 92(2) and Being in possession of wildlife trophy of a critically endangered species without a permit or other lawful exemption contrary to section 92(4).

3. In a ruling on whether the accused had a case to answer, the two co-accused were acquitted under Section 210 of the Criminal Procedure Code whereas the Respondent herein was placed on his defence. He was subsequently found guilty as charged and convicted. He was sentenced to 3 years’ probation.

4. It is that sentence that prompted the State to file the instant appeal claiming that the sentence was contrary to law, hence, ought to be set-aside and an appropriate custodial sentence be meted against the Respondent.

5. This matter came up before Court on several occasions where the Respondent did not appear despite service. Eventually, parties were directed to file written submissions on the appeal. The State complied, but the Respondent did not.

6. This Court is the first appellate Court.

7. The Court in Wanjema v. Republic (1971) EA 493 laid down the general principles upon which the first appellate Court may act on when dealing with an appeal on sentence. An appellate Court can only interfere with the sentence imposed by the trial Court if it is satisfied that in arriving at the sentence the trial Court did not consider a relevant fact or that it considered an irrelevant factor or that in all the circumstances of the case, the sentence is harsh and excessive. However, the appellate Court must not lose sight of the fact that in sentencing, the trial Court exercised discretion and if the discretion is exercised judicially and not capriciously, the appellate Court should be slow to interfere with that discretion.

8. This Court has considered this matter with caution and care. The sentences in respect of one convicted with the two offences herein is provided for in law. The provisions state as follows: -92. (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.92. (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.

9. The term ‘shall be liable’ has been judicially interpreted in many decisions. In all such decisions there is concurrence that the term imposes discretion in a sentencing Court.

10. For instance, the Court of Appeal in M. K. v Republic [2015] eKLR rendered as follows: -19. What does “shall be liable” mean in law? The Court of Appeal for East Africa in the case of Opoya -v- Uganda (1967) EA 752 had an opportunity to clarify and explain the words “shall be liable on conviction to suffer death”. The Court held that in construction of penal laws, the words “shall be liable on conviction to suffer death” provide a maximum sentence only; and the courts have discretion to impose sentences of death or of imprisonment.

11. Similar positions were held in Republic v Regina Wambui Njoroge [2020] eKLR, PMM v Republic [2018] eKLR, NOO v Republic [2019] eKLR, Republic v Elizabeth Mugoywa, Nairobi Criminal Case No. 15 of 2015, among others.

12. Returning to the case at hand, the sentencing Court, therefore, had discretion to sentence on conviction to the minimum sentences imposed under Sections 92(2) and (4) of the Wildlife Act respectively. The guiding word here is ‘discretion’.

13. There is, hence, need to ascertain whether the criteria laid in Wanjema vs. R case (supra) among other decisions applies in this case as to accord this Court the necessity to interfere with the discretionary sentence in place.

14. The sentencing Court considered the nature of the offences, the public interest involved, the Pre-Sentence Report and the health of the accused. The Probation Report did not support a non-custodial offence for two main reasons. First, that the law under which the Respondent was charged vouched for mandatory custodial sentences and, second, that the Respondent was a flight risk having previously jumped bail and he had to be tracked all the way to Somalia where he had escaped to.

15. The issue of the sentence has already been dealt with in this judgment. On the aspect of jumping bail, the record confirms as much although there is no indication on where the Respondent was arrested. His reason that he was ailing was not accepted by the trial Court and he was held in remand.

16. The Respondent denied the allegation of having been to Somali and called for proof. The Court gave the State an opportunity to confirm as much. Later, the State stated that they had no any issue relating to Somalia country. It must have been on that background that the Court disregarded the persuasive recommendation in the Report.

17. Despite the report by the Probation officer, there is no information, 2 years later, that the Respondent had flouted the terms of the probation sentence. Further, there is evidence that the Respondent lives in Nakuru where the Appellant has been serving him with the Court process in this matter.

18. To this Court, on the basis of the foregoing, the sentencing Court had a defined basis to disregard the report which seems to have been smeared with falsehoods. The integrity of the report was, hence, wanting.

19. With the report out of the way, the Court considered other parameters including the public interest in the matter.

20. Sentencing is a crucial part in the criminal process and the administration of justice. It is also discretionary. In exercising the discretion, a sentencing Court is called upon to be guided by a raft of considerations. Such are discussed at length in the Sentencing Guidelines published on 29th April, 2016 vide Gazette Notice No. 2970 by the Hon. The Chief Justice of the Republic of Kenya who is also the Chairperson of the National Council on the Administration of Justice (NCAJ) and in case law including the Supreme Court in Petition No. 15 of 2015 Francis Karioko Muruatetu & another v Republic [2017] eKLR.

21. From the foregoing, this Court does not see how to fault the sentencing Court in how it exercised its discretion. Whereas the State yearned for a custodial sentence, the law allowed the Court to grant a non-custodial sentence. This Court cannot, therefore, substitute its view on the sentence with that of the sentencing Court outside the legal confines discussed in Sentencing Guidelines, Francis Karioko Muruatetu & another v Republic case (supra) and Wanjema vs. R case (supra) among others.

22. Whereas this Court is of a similar position as that of the State, subject to the circumstances of each case, that generally, in offences as those in this matter, there is need for stiffer sentences so as to protect the animal species which are almost extinct world over, that position cannot over run a Court’s direction provided in law and properly exercised.

23. Deriving from the above, this is a matter wherein the Appellant has not satisfied this Court on how the sentencing Court erred so as to interfere with the sentence on record.

24. In the end, the following final orders of this Court do hereby issue: -a.The Appeal against the sentence is dismissed.b.This file is hereby marked as CLOSED.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 14TH DAY OF DECEMBER, 2023. A. C. MRIMAJUDGEJudgment delivered in open Court and in the presence of: -No appearance, for the Respondent.Miss Kiptoo, Learned Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the Appellant.Chemosop/Duke – Court Assistants.