[2023] KEHC 24024 (KLR)

Republic v Otieno (Criminal Case E001 of 2023) [2023] KEHC 24024 (KLR) (19 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24024 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Case E001 of 2023

RPV Wendoh, J

October 19, 2023

Between

Republic

Appellant

and

Alex Otieno Otieno

Respondent

Judgment

1. Alex Otieno Otieno, was convicted by the Senior Principal Magistrate Migori for the twin offences, offences of dealing in Wildlife Trophy a specified endangered species without a permit and for being in possession of specified Wildlife Trophies contrary to Section 92 (2) and 92 (4) of the Wildlife Conservation and Management Act 2013.

2. The particulars of the charge are that on 7/2/2021 at Mote Morabu Area in Kuria West Sub County, Migori County jointly with another not before the court, was found in possession and dealing with six pieces of elephant tusks weighing forty two (42. 2) kilograms with a street value of 42 million without a permit / authorised from the Director General of Kenya Wildlife Service.

3. After a full trial where the prosecution called five (5) witnesses and the appellant testified on Oath, the appellant was convicted on both counts and sentenced to Kshs. One Million (Kshs. 1,000,000/=) on each count in default five (5) years imprisonment on each count.

4. The appellant is aggrieved by the trial court’s judgment and through the firm of Kerario Marwa Advocate, the appellant preferred this appeal citing seven (7) grounds of appeal which are as follows:-1. That the trial court erred by not finding that the case was presented by a prosecutor who had no authority under Section 107 of the Wildlife Conservation Act;2. That the court erred by not holding that there was no evidence on how the exhibits were delivered to the National Museums for analysis;3. That the court erred in not finding that the expert evidence failed to reach the threshold;4. That the court erred in not ascertaining that the trophies were indeed trophies in terms of the Wildlife Management Act;5. That the conviction was not based on any evidence;6. That the appellants defence was not considered;7. That the sentence meted is excessive and harsh.

5. The appellant therefore prays that the conviction be quashed and sentence set aside or the sentence be reduced,. The firm of Kerario Marwa filed submissions in support of their case.

6. On the first ground, it was submitted that Section 107 of Wildlife Conservation Act provides that the Director of Public Prosecution (DPP) may designate special prosecutors to prosecute Wildlife offence cases; that the prosecution was conducted by an officer from the office of the DPPMigori where there are prosecutors with general prosecutorial powers; that the prosecutor who prosecuted the case did not have a Kenya Gazette Notice or letter of Appointment produced during the trial. It was submitted that under Section 107 of the Wildlife Conservatory and Malmanagement Actonly designated special prosecutors can prosecute matters under the Act.

7. On the second ground, it was submitted that there was no evidence on record on how the trophies were delivered to the National Museums of Kenya for analysis; that no inventory showing who took possession of the trophies, who stored them and where, when they were released from where they were stored and how were they transported to the Museum; that failure to comply with the said procedure led to a miscarriage of justice as it cannot be ascertained whether what the Appellant was allegedly found with was what was subjected to analysis. Counsel relied on the decision of Kajiado Revision No. 8 of 2017 Director of Public Prosecution vs. Marias Pakine Tenkewa t/a Naresho Bar Restaurantwhere the court held that the preservation and safety of exhibits is an integral part of serving justice and fair play; that the gaps in the prosecution case must be resolved in favour of the appellant as was held inPius Arap Maina vs. Republic (2013) eKLR.

8. On ground 3, relying on Section 48 of the Evidence Act, counsel submitted that the evidence of the expert witness was not detailed and failed the test of reasonable doubt.

9. On ground 4, it was submitted that there was no evidence that the trophies belonged to the Government of Kenya as the expert witness could not tell its origin.

10. On ground 5 and 6 it was submitted that the court failed to take into account the appellants defence which was an explanation as to who had the trophies. Counsel relied on the decision of Jean Wanjala Songoi and Patrick Manyola vs. Republic Criminal Appeal No. 100 of 2014 where the court defined what possession amounts to. Reliance was also made on the case of Obeng Comfort vs. Pubic Prosecutor (2017)1 SLR1 633, cited in Samwel Mlandi vs. Republic (2020)eKLR andCharles Mbaabu Mburi vs. Republic (2018) eKLR.

11. In opposing the appeal, the prosecution counsel submitted that Article 157 (6) of the Constitution empowers the Director of Public Prosecutions to exercise State powers of Prosecution and may under take any criminal proceedings against any person before any court; that under Article 157 (9) the Directors Powers may be exercised in person or by subordinate officers acting in accordance with general or special instructions. Counsel argued that there is no evidence to show that the prosecutor was incompetent.

12. As regards the chain of custody of the exhibits the form which shows the chain of custody was produced as PEX 6; that PW2 took possession of the exhibits at the scene and they were handed over to the investigating officer and eventually to Dr. Ogote Mwebi (PW4); that after analysis, the exhibits were handed back to the investigation officer who produced them in court.

13. As to proof of the offence, counsel urged that the trophies were on sale and the offence was therefore proved. He relied on the case of Waithaka & Another vs. Republic (2013)eKLR and Hussein Wanjala Wekesa vs. Republic(2021) eKLR.

14. As for the defence, counsel submitted the same was considered and found to be untenable; that it did not dislodge the consistent evidence tendered by the prosecution witnesses.

15. I have duly considered the grounds of appeal, the rival submissions by counsel and evidence on record. As to whether the case was properly prosecuted, Section 107 of the Wildlife Conservation and Management Act provides for prosecution powers as follows:-“Prosecutorial powers1. The Director of Public Prosecutions may, in accordance with the Office of the Director of Public Prosecutions Act, 2013 (No. 2 of 2013) and this section, designate special prosecutors to prosecute Wildlife offences under this Part.2. Notwithstanding the provisions of subsection (1), the Director of Public Prosecutions may, either on his or her own or on application of an authorised officer, delegate his or her prosecutorial powers to such authorised officer to prosecute offences under this Act.”

16. No doubt the case before the trial court was prosecuted by a prosecutor from the DPP’s office. My understanding of Section 107 (1) is that the Office of Director of Public Prosecution has the discretion to designate special prosecutors to prosecute Wildlife offences. The provision is not mandatory. Under Article 157 (a) of the Constitution, the powers of the Director of Public Prosecution may be exercised in person or by subordinate officers acting in accordance with general or special instructions. There is no evidence availed before this court to demonstrate that the prosecutor who presented the case did not have authority to prosecute or was incompetent. I find the said submission to be untenable.

Whether there was evidence on how the exhibits were transmitted for analysis; 17. I do agree that the investigation officer. PW3 in this matter told the court that PW2 handed over the exhibits to him on 7/2/2021 after he had weighed them and that he took them for analysis. PW3 produced the exhibit Memo Form and the Chain Custody Form PEX 5 and 6. The Chain Custody Farm clearly shows that CPL Rodney (PW2) handed over the exhibits to No. 7854 CPL Calvine Bolo on 7/2/2022 who I believe is PW3 No. 7954 Calvine Odhiambo. It is the said PW3 who handed the exhibits to the expert with PW4 and he received the exhibits back. PW4 confirmed that the exhibits were delivered to him on 9/2/2021 by Kenya Wildlife Officer which is supported by the Exhibit Chain of Custody Form and exhibit Memo Form EX1 4 and 5 when the exhibits were surrendered in court they were not challenged. I do agree with the judgment in Kajiado Revision No 8 of 2017 Director of Public Prosecution vs. Marias Pakine Tenkewa t/a Naresho Bar Restaurant where J. Nyakundi observed inter alia that there should be tangible on documentary evidence by the witness who has knowledge of the existence of the seizure, recovery, the one who prepared the inventory report. In this case, PW1, PW2, PW3 and PW4 all testified to how the exhibits were handled supported by documentary evidence. I am satisfied that there was sufficient evidence to demonstrate that what was recovered is what was analysed by PW4.

18. Whether the evidence of PW4 met the threshold of an expert witness. As properly submitted by the appellant’s counsel, Section 48 of the Evidence Act provides for adduction of evidence by a expert witness. It reads as follows;-48. Opinion of experts(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identify or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identify, or genuineness of handwriting or fingerprint or other impressions.(2)Such persons are called experts.

19. The said section was expounded by the Court of Appeal in Mutonyi vs. Republic (1982) KLR 203 at 210 Potter J. said :Expert evidence is evidence given by a person skilled and experienced in some professional or special sphere of knowledge of the conclusions he has reached on the basis of his knowledge, from facts reported to him or discovered by him by tests, measurements and the like.Section 48 of the Evidence Act (Cap 80) provides that where, inter alia, the court has to form an opinion upon a point “of science, art, or as to identity or genuineness of handwriting or finger or other impressions”, opinions on that point are admissible if made by persons “specialist skilled” in such matters.In Cross on Evidence 5th edition at page 446, the following passage from the judgement of President Cooper in Davie versus Edinburgh magistrates (1933) SC 34,40, as scenting the functions of expert witnesses:“Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgement by the application of these criteria to the facts put in evidence.”So, an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion:1. Establish by evidence that he is specially skilled in his science or art.2. Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved.3. Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness.”

20. Dr. Ogeto of National Museums testified as PW4 and produced his report as PEXNO 7. He told the court that he has worked as Kenya Senior Research Scientist Scout specialised in animals for 31 years. That fact was not disputed. He then went ahead to give his findings in brief, that after measuring and microscopic examination of the exhibits, he found the exhibits taken to him to be elephant tusks which have unique internal structures not found in other tusks. His report is detailed on his findings. He therefore confirmed that what was submitted to him together with the Exhibit Memo were elephant tusks which are endangered or threatened species under the sixth schedule of the Act. This court is satisfied that PW4 did discharge his duties as an expert witness and his evidence was not challenged.

21. PW1 testified on how in company with another, acted on information and confronted one Chacha and the Appellant. The Appellant in his unsworn defence distanced himself from Chacha claiming that he was just visiting Chacha. At first, he claimed to have been at Chacha’s home with Chacha and was leaving when a vehicle arrived. He then attempted to include a third person who allegedly had a bag when he had not mentioned earlier. The trial court preferred the testimony of PW1 and PW2 as to what transpired at the time of arrest and recovery of exhibits.

22. The appellant gave unsworn evidence in his defence were is of little or no probative value in contract to PW1 and PW2’s evidence which was subject to cross examination and was unshaken.

23. As to whether the appellant was in possession of the trophies, the term possession was ably explained in the case of Jean Wanjala Songoi andPatrick Manyola vs. Republic Criminal Appeal No. 100 of 2014 where the court said:-"…… 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. In this case, that aspect of the offences was not established beyond reasonable doubt against the appellant.”

24. In this case, PW1 and PW2 received information that the persons with the trophies were two. According to both, the two men who included the appellant and the Chacha emerged from the bush with a gunny bag and approached their car. From the circumstances in which the appellant was found in a bush together with Chacha and a bag which had the exhibits, he knew what he was carrying and when he was purporting to offer for sale, the court is satisfied that he was in possession of the elephant tusks.

25. It is the appellants submission that there was no evidence that the tusks were obtained from Kenyan elephants. In my view, the law is clear. Possession or dealing with such trophies is an offfence. Whether obtained outside Kenya or not they never arrest in Kenya which has.

26. In the end I find that the prosecution arrived its case to the required standard and I affirm the conviction.

27. Under Section 92 (2) of the Petition, upon conviction, one is liable to a term of imprisonment of not less than seven (7) years. Under Section 92 (4) upon conviction, one is liable to a fine of not less than three million shillings or a term of imprisonment of not less than five years or to both fine and sentence.

28. In the instant case, the court exercised its discretion and did not pay due regard the minimum sentences. Taking into account the seriousness of the offence, and its prevalence which results in depleting of our wildlife. I find no good reason to interfere with the sentence. It was fair in the circumstances. In the end I find the appeal without merit and it is dismissed in its entirety.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 19TH DAY OF OCTOBER, 2023. R. WENDOHJUDGE