https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/111

Republic v Munyao & another (Criminal Case E1165 of 2021) [2026] KEMC 111 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEMC 111 (KLR) Republic of Kenya In the Makindu Law Courts Criminal Case E1165 of 2021 YA Shikanda, SPM May 7, 2026 Between Republic Prosecution and Patrick Maundu Munyao 1st Accused Justus Nzioki Mutuku 2nd Accused Judgment The Charge 1.Patrick Maundu Munyao and Justus Nzioki Mutuku (hereinafter referred to as the 1st and 2nd accused persons respectively) are charged with the offence of Dealing in wildlife trophy without a permit contrary to section 95(b) of the Wildlife Conservation and Management Act. The particulars of the offence are that on 7/12/2021 in Makindu Township, Makindu Sub-county within Makueni County, the accused persons were jointly found dealing in a Python skin approximately valued at Ksh. 100,000/=, without authority from the Kenya Wildlife Service Director General. When the plea was taken, the accused persons pleaded not guilty. The matter was then set down for hearing. On 14/5/2025, the court found that the accused persons had a case to answer and proceeded to place them on their defence. The Evidence The Prosecution Case 2.The prosecution called a total of five (5) witnesses in a bid to prove their case against the accused persons. PW 1 Ranger Samuel Lekatoo, attached to Biglife Foundation, testified that on 7/12/2021 he was at Chyulu National Park when he received a call from their office and was informed that two people had been seen with a snake skin at Makindu. The witness informed his colleagues where after two of them proceeded to Makindu town at about 9:00 pm. While at Makindu, the witness saw a motorcycle with two pillion passengers. The motor cycle stopped then the pillion passengers alighted. That one of the passengers was carrying a bag. PW 1 and his colleague asked them to open the bag and when they did, a python skin was found. 3.The accused persons were arrested and taken to Makindu police station, together with the package. PW 2 Ranger Nicholas Mumo Kiminza also attached to Big Life Foundation gave testimony that was similar to that of PW 2. PW 3 Dr. Ogeto Mwebi testified that he was a Research Scientist at the National Museums of Kenya. That on 29/3/2022 he received an animal skin from a KWS officer for purposes of identification. The witness analysed the skin and established that it was for a python. The witness produced his report in evidence. PW 4 Corporal Shipphira Wanjiru attached to Kenya Wildlife Service testified that on 22/3/2022 she received an animal skin from the investigating officer in this case and on 29/3/2022 the witness took the skin to the National Museums for analysis. The skin was analysed in her presence and on the same day, she returned it to the investigating officer. PW 5 Police Inspector Oliver Mwandonyi testified that he took over the matter from the initial investigating officer who was transferred. That he obtained the python skin from the exhibit store. The witness stated that he did not investigate the matter. He produced the python skin in evidence. The Defence Case 4.Upon being placed on their defence, the accused persons gave a sworn testimony without calling any other witness. The 1st accused person testified that he was a mason. That on 7/12/2021 he left Kitui and travelled to Kiunduani area. The 1st accused person stated that he alighted at the Makindu-Wote road junction and was arrested by two people who claimed to be police officers. The 1st accused person stated that he was carrying his tools of trade. The 1st accused person was taken to Makindu Police station where it was alleged that he had been found with the skin of a snake. The 2nd accused person testified that on the material night, he was walking around Makindu town collecting jerry cans from the people he had supplied water with. That it was during covid-19 period. The 2nd accused person stated that he met police officers who arrested him and took him to Makindu Police station. The following day, he was brought to court. The 2nd accused person stated that he thought he had been charged with flouting Covid-19 restrictions. That he was alone when he was arrested. Main Issues for Determination 5.In my view, and in consideration of the charge, the main issues for determination are as follows:i.Whether the accused persons were found dealing in a wildlife trophy on 7/12/2021;ii.Whether the trophy was a python skin;iii.If (i) and (ii) above are in the affirmative, whether the accused persons had a permit;iv.Whether the prosecution has proven its case against the accused persons to the required standard. Analysis and Determination 6.I have carefully considered the evidence on record as well as the law applicable. Section 95 of the Wildlife Conservation and Management Act provides:“Any person who, without a permit or exemption granted under this Act in relation to a species not specified under section 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; ore.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.” 7.Section 3 of the governing Act defines the term “deal” as follows:a.to sell, purchase, distribute, barter, give, receive, administer, supply, or otherwise in any manner deal with a trophy or live species;b.to cut, carve, polish, preserve, clean, mount or otherwise prepare a trophy or live species;c.to transport or convey a trophy or live species;d.to be in possession of any trophy or live species with intent to supply to another; ore.to do or offer to do any act preparatory to, in furtherance of, or for the purpose of, an act specified above; 8.In my view, the key ingredients for the offence with which the accused person are charged and which the prosecution ought to prove are:1.The accused person were found in possession of an animal skin;2.The skin was that of a python;3.The accused person were found dealing in the python skin;4.The accused person had no permit or exemption allowing them to deal in the python skin. 9.The offence of dealing in wildlife trophy cannot suffice unless possession of the wildlife trophy by the accused persons is proven. The Wildlife Conservation and Management Act does not define the term "possession." The definition is to be found in section 4 of the Penal code which provides as follows:(a)“be in possession of” or “have in possession” 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;(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 or possession, it shall be deemed and taken to be in the custody and possession of each and all of them.” 10.The animal skin was produced in evidence and according to the report by PW 3 Dr. Ogeto Mwebi, a Research Scientist, the skin was that of an African rock python. Under the sixth schedule of the Act, the rock python is listed as an endangered species. This implies that the accused persons were charged under the wrong provision of law. They were to be charged with the offence of dealing in a wildlife trophy of an endangered species contrary to section 92(2) of the Wildlife Conservation and Management Act which provides that:“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.” 11.Alternatively, and depending on the circumstances, the accused persons would have been charged under section 92(4) of the same Act, which provides that:“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.”Nonetheless, the error was not fatal to the prosecution case. 12.The testimonies of PW 1 and PW 2 were generally consistent and corroborative on the fact that the accused persons was found in Makindu area and in possession of the skin in issue. There is also sufficient evidence to prove that the skin which was produced in evidence was that of a python. Is there positive proof that the accused persons were found in possession of a python skin and that it was the same skin that was produced in evidence? Before delving into the aspect of possession, there is a worrisome fact that the court needs to address. The evidence on record indicates that the accused persons were arrested by Rangers attached to Big Life Foundation. That it is the same Rangers who searched and seized the python skin then escorted the accused persons to Makindu Police station. 13.Big Life Foundation is not one of the law enforcement agencies in Kenya. It is a non-governmental international organization that partners with local communities and government agencies in the protection and conservation of wildlife. Section 6(1) of the Wildlife Conservation and Management Act establishes the Kenya Wildlife Service as a uniformed and disciplined Service. According to section 7 of the same Act, one of the functions of the service is to undertake and conduct enforcement activities such as anti-poaching operations, wildlife protection, intelligence gathering, investigations and other enforcement activities for the effective carrying out of the provisions of the Act. 14.Section 110 of the Wildlife Conservation and Management Act provides in part as follows:(1)An authorized officer may—a.demand from any person the production of an authority, license or permit for any act done or committed by that person in relation to wildlife resources for which an authority, permit or license is required under this Act or under any rules made thereunder;b.require any person found within or outside wildlife conservation areas who has in his possession any wildlife specimen, to produce authority, permit or licence authorizing him to possess such wildlife specimens, where no such proof is produced, arrest and take such person before a magistrate;c.search any person suspected of having committed an offence under this Act or of being in possession of any wildlife specimen in respect of which an offence has been committed, arrest and detain the person, seize and detain any baggage, parcel or house being used to carry or hide such wildlife specimen by the person or his agent; ord.search any vehicle or vessel and seize and detain any wildlife specimens in respect of which there is reason to believe that an offence has been committed, together with any tools, equipment, vessels or vehicles used in the commission of the offence.Provided that the authorized officer detaining the person and seizing such property shall forthwith take the person and the seizure to the magistrate having jurisdiction over the area where the offence takes place within twenty-four hours;e.confiscate any equipment or receptacle placed for purposes of capturing, harming or killing wildlife animals; andf.conduct investigation and undertake intelligence gathering as appropriate on any land, premises, vessels and vehicles to apprehend suspected offenders of this Act.” 15.The foregoing means that only an authorized officer may stop, search, demand the production of any permit or licence, seize items, arrest and detain a person suspected of having committed an offence under the Act. Are Rangers employed by Big Life Foundation authorized to gather intelligence, stop and search, demand production of a permit, seize items, arrest and detain suspects? The answer to this simple yet pertinent question is found in section 3 of the Wildlife Conservation and Management Act which defines the phrase “authorized officer” to include a member of, the Service, a forest officer, a fisheries officer, a police officer, a customs officer, an administrative officer, or any person so designated under the Act. Big Life Foundation and its officers are not designated to carry out such activities. They are thus not authorized officers under the Act. 16.Furthermore, section 25 of the Criminal Procedure Code provides:“Whenever a person is arrested—a.by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail; orb.without warrant, or by a private person under a warrant, and the person arrested cannot legally be admitted to bail or is unable to furnish bail, the police officer making the arrest, or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search that person and place in safe custody all articles, other than necessary wearing apparel, found upon him.” 17.My interpretation of the above provision is that where a suspect is arrested by a private person, the private person has no authority to conduct a search on the suspect. Such private person ought to hand over the suspect to the police who will then conduct the search. Moreover, section 26 of the Criminal Procedure Code provides that only a police officer, or other person authorized in writing in that behalf by Inspector-General of the National Police Service, may stop, search and detain any aircraft, vessel or vehicle in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found or any person who may be reasonably suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained. 18.There is no evidence to show that Big Life Foundation Rangers were authorized to stop, search, seize items and detain the accused persons. The court wonders why they went on a mission without involving KWS officers or even the police. What were they hiding? The duty of prevention and detection of crime, the apprehension of offenders and the enforcement of laws is vested in the Police and other authorized officers. The court is alive to the fact that wildlife crime is a menace to the society and has far-reaching adverse effects to the country. In as much as we appreciate the efforts being made by particular organizations and institutions such as Big Life Foundation in the fight against the scourge of wildlife crime, it has to be borne in mind that we are all governed by the law and the law must be obeyed regardless of the circumstances. 19.Members of the public are expected to be vigilant in the fight against crime but they should not usurp the powers exclusively conferred on selected institutions such as the police and KWS officers. Such practices bring into disrepute the administration of justice and the rule of law. The Constitution affords every citizen the right to access justice in the manner provided for by law. Where action is taken contrary to the law, such action violates the cardinal principles of the rule of law and cannot be condoned no matter the outcome. It is my finding that the purported search and seizure by PW 1 and PW 2, if at all it happened, was unlawful and cannot be allowed to stand in any open and democratic society based on human dignity, equality and freedom. 20.The other issue that made me anxious was the chain of custody of the python skin. In the case of Annie Butoyi Ciza v Republic [2017] eKLR, the court made the following observation:“Another important entity in this case is Corporal Violet Khalayi, who PW4 said he handed over all the evidence collected by him. Having been in possession of the drugs over the weekend until when PW8 was given the drugs for testing and sampling, her testimony was crucial in ensuring that that the chain of custody was sound. But this was not the case because she neither recorded a statement nor testified in court. Courts of concurrent jurisdiction and higher have delivered themselves that the failure to call crucial witnesses heavily weakens the prosecution case. In fact, when it is clear that there was deliberate failure to call the witness(es), an inference may be drawn that had the witness been called he would have adduced adverse evidence for the prosecution. See Bukenya v Uganda (1972) EA, 549. I draw a similar inference in the instant case particularly in view of the discrepancies in the evidence of the witnesses pointed above......................................The chain of custody of the drug is so crucial to a case because it confirms where they were recovered and that they did not change hands as to cast doubts that they were recovered from the accused. In the present case, the chain of custody was not full proof, ultimately casting doubt as to the culpability of the Appellant.” 21.Similarly, in Benard Omondi Odullo v Republic [2000] eKLR, the Court of Appeal had this to say regarding the chain of custody:“The report of the Government Analyst which was produced by Inspector Mohamed Dida (P.W.1) appears ex-facie to be genuine in so far as what it purports to say. But the lacunae in the chain of evidence which led to the production of the report as an exhibit by P.W.1 are that there is no evidence to show who took the allegedly recovered drug to the Government Analyst; Why it took nearly two months to reach him" Who had the custody of the envelope containing the drug wrapped in polythene paper from 7th March, 1998 to 5th May, 1998" Why did it take the Government Analyst 22 days to prepare the report" These factors point out that the chain of evidence as to custody of the heroin was not complete. That being so there is a doubt as to whether what was recovered from the appellant was the heroin which was referred to in the Government Analyst's report. We must point out that greater care should be taken in future in proving the custody of exhibits and in case of drug related offences the custody of the drug itself. This issue of the break in the chain of evidence as regards the custody of the offending drug was not gone into by the learned magistrate; nor was it gone into by the superior court. On this issue alone, we have no alternative but to allow the appeal. Having reached this conclusion, we need not address our minds on the other grounds of appeal.” 22.The foregoing illustrates the importance of the chain of custody in such cases. Although the authorities relate to narcotic drugs, the same principle would apply in the circumstances of this case and in any case where the exhibit is a key ingredient of the offence. PW 1 testified that he took custody of the python skin from the scene to the police station. That at the police station, he handed over the python skin to a police officer at the report office, but could not recall his name. According to PW 2, it was the 1st accused person who had custody of the skin from the scene to the police station. That when they reached the police station, PW 1 took the skin then handed it over to a police officer. From the prosecution evidence, by the time the skin was being handed over to a police officer whose identity is not clear, it had not been marked for purposes of identification. 23.The evidence of PW 3 was that he received the skin from PW 4 and upon analysis, he returned it to her. PW 4 confirmed that she was the one who took the skin to PW 3. Her evidence was that she received the skin from one Police Constable Matara. This was on 22/3/2022. By the time PW 4 took custody of the skin, the same had not been marked by the investigating officer. That it was PW 4 who marked the skin on 22/3/2022. Police Constable Matara was not called to testify. It is not known how and when he took custody of the skin and from whom. Furthermore, it is also not known who had custody of the skin from 7/12/2021 to 22/3/2022. 24.PW 5 stated that he took over the matter after Police Constable Matara was transferred. This was in early 2024. His evidence was that the skin was not handed over to him but he only obtained it from the exhibit store. When PW 5 was examined by the court, he stated that he received the skin from the OCS, whose name he did not give. It is therefore not clear who had custody of the skin after Police Constable Matara was transferred, and further, how the OCS got into possession of the skin. No record of the chain of custody of the skin was produced in evidence. The chain of custody is unclear and was broken. That raises reasonable doubt as to whether the skin produced in evidence was the same one that was allegedly recovered from the accused persons. 25.The duty is on the prosecution to prove its case against the accused person beyond reasonable doubt. In Philip Nzaka Watu v Republic [2006] eKLR, it was held that to find a conviction in a Criminal case, the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt. On proof beyond reasonable doubt, the court stated in Stephen Nguli Mulili v Republic [2014] eKLR:“It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP v Woolmington, (1935) UKHL 1 where the court eloquently stated that the “golden thread” in the “web of English common law” is that it is the duty of the prosecution to prove its case. The Kenyan Courts have upheld this position in numerous cases. See Festus Mukati Murwa v R, [2013] eKLR.” 26.In the famous case of Miller v Ministry of Pensions [1947] 2 All ER 372, Lord Denning stated with regard to the degree of proof beyond reasonable doubt:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 27.In Bakare v State (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability.” (Emphasis mine) 28.It matters not that the accused persons may not have told the truth in their defence. What matters is whether there is sufficient evidence against them. The evidence of the prosecution witnesses is highly discredited. I have no reason to disregard the defence put forth by the accused persons. Reasonable doubt has been cast on the prosecution case and as a matter of law, the doubt must be resolved in favour of the accused persons. Disposition 29.The upshot of the above considerations is that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Consequently, I find both accused persons not guilty of the offence of Dealing in a wildlife trophy without a permit contrary to section 95(b) of the Wildlife Conservation and Management Act and proceed to Acquit them of the offence accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 7TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.