https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/121

Republic v Wambui (Criminal Case E012 of 2026) [2026] KEMC 121 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KEMC 121 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E012 of 2026 FM Mulama, RM May 14, 2026 Between Republic Prosecutor and David Mwangi Wambui Accused Judgment A. Brief Facts. 1.The accused is charged with engaging in hunting for the purpose of subsistence contrary to section 97 of the Wildlife Conservation and management Act. The brief facts are that on 9th January 2026 at around 1700hours in Manda Bay ranch being a protected area in Shella the accused hunted a dikdik for purposes of subsistence. 2.The accused denied the charges and 3 witnesses were lined up to support the prosecution’s case and upon being found to have a case to answer the accused person gave sworn evidence and closed his case. 3.I have considered both sets of testimonies and exhibits produced in this matter. Prosecution’s case. 4.It is the prosecution’s case through the evidence of Pw 1 a ranger at the Manda conservancy that on 9/1/2026 at 1700hours while on patrol alone saw a person and when he called him he tried to escape and in his hands he was carrying a carrier bag. He chased him and managed to arrest him. 5.Inside the bag he retrieved pieces of meat, 1kg wheat flour, sugar, beans and a torch which items he identified in court and thereafter he called for reinforcement from his colleagues. An inventory was later prepared and was witnessed and signed even by the accused person. 6.Pw 2 PC Evans Kipkoech was the officer who was called by Pw 1 when the accused was arrested and who rushed to the scene and found the accused arrested with the items that were identified by Pw 1. Pw 3 PC Katana was the IO who did not witness the incident but rather who prepared the police file and arraigned the accused in court Defence case 7.The accused in his defence stated that on the material date and time he had gone to purchase the foodstuffs which have been produced in evidence to wit wheat flour, beans and sugar and on his way Pw 1 who had the meat in question gave him the meat and he assumed it was a remnant that was being given to him. He denied being a hunter and that he was accused falsely. B. Issues For Determination. 8.Two issues are for determination. Whether the accused person was engaged in hunting and whether the meat in question belongs to a Dik-dik. C. Analysis And Determination. 9.For the accused to be convicted of the offence the 2 issues I have formulated have to be answered in the affirmative. a. Whether the accused person was engaged in hunting. 10.Hunting has been defined under section 2 of the Wildlife Conservation and Management Act in the following terms;“hunt” means and includes—(a)to kill, injure, shoot at;(b)willfully disturb or molest by any method;(c)lie in wait for, or search for, with intent to kill, injure or shoot at, molest a nest or eggs of, any wild animal; 11.The evidence on record does no in anyway suggest that the accused was found in the act of killing, injuring, shooting at, willfully disturbing or molesting by any method or lying in wait, or search for with intent to kill, injure or shoot at any wild life. 12.It is the evidence of Pw 1 that he found the accused with the pieces of meat as captured in the photo and other food stuffs. The accused admits that he was given the pieces of meat by Pw 1 in a bid to frame him with the charges. 13.That notwithstanding, the totality of the evidence on record does not insinuate in any way that the accused person was engaged in hunting of the said animal within the meaning of definition given in Section 2 of the Act. In addition, he was not found with any other evidence to suggest that he had killed the said animal. I say this because the logical thing was that he would have been found with blood stains on him, gadgets/weapons used for hunting and a knife for killing and/or skinning the animal in question. 14.I therefore do find and hold that the accused person was not engaged in hunting of any kind of a wild animal. b. Whether the meat in question belongs to a Dik-dik 15.It is the duty of the prosecution at any given time to prove its case beyond any reasonable doubt and it is trite that where there exists any iota of doubt, the same should as of necessity be resolved in favour of the accused person. 16.Photos of what is said to be meat from Dik-dik were produced in evidence as Pexh 1(a) and (b). In the weighing certificate and inventory by the Kenya Wildlife Service which were produced in evidence, refer to the meat in question as suspected bush meat and the same is repeated in the exhibit memo. The repeated use of the word “suspected bush meat” is not by coincidence. It is the acknowledgement that even the officers themselves were not sure whether it was indeed bush meat. 17.The confirmation of whether the meat was bush meat or otherwise would have come from the government chemist and/or experts from KWS vide a report after analyzing the samples from the meat in question. 18.The court and indeed anyone cannot while looking at the photos Pexh 1(a) and (b) tell with certainty that the meat belongs to a dik dik in the absence of any scientific report confirming the same. It should not be lost on any of us that a look at the said photos one would easily confuse the pieces of meat with that of a goat. 19.Therefore, in the absence of a report from the government chemist and/or KWS the court is unable to ascertain whether the meat is from a wild animal hence bush meat or otherwise. In essence there exists a doubt as to which animal the meat belongs to and as I already said the doubt is resolved in favour of the accused person. 20.Consequently, I do find and hold that there is no proof in evidence that the meat belongs to a dik dik. 21.The totality of the evidence on record does not support the charge facing the accused person and as of necessity he must be acquitted. In my view the proper charges in the circumstances would have been that of dealing in the carcass or meat of wildlife species contrary to section 98(1) as read with section 105(b) of Wildlife Conservation and Management Act,2013 and killing a wildlife species without permit or other lawful exemption contrary to section 95(a) of Wildlife Conservation and Management Act 2013 D. Conclusion And Disposition. 22.The upshot of the aforegoing is that the prosecution’s case is wholly without merit and is dismissed for want of proof for the reasons given in the body of this judgment. 23.The net effect being that the accused is acquitted under section 215 of the CPC. He is at liberty unless otherwise lawfully held. 24.Those shall be the orders of the court. DATED, SIGNED AND DELIVERED AT LAMU LAW COURTS THIS 14TH DAY OF May 2026F.M. MULAMA.RESIDENT MAGISTRATEIn the presence of:Idris Tomno for DPP.Court Assistant:- Vivian Wambui.David Mwangi Wambui