https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11464

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E062 OF 2024** **SAFARI MWARINGA MAE…..….……………………APPELLANT** **VERSUS** **REPUBLIC…………………………………………….RESPONDENT** *(Being an appeal from the original conviction and sentence by Hon.J. Mwaniki, Malindi Chief Magistrate`s Court Criminal Case No.E565 of 2023 delivered on 8/7/2024)* **JUDGMENT** 1. The Appellant herein was tried and convicted for the offence of dealing in a wildlife trophy of an endangered species without a permit or other lawful exemption contrary to section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars of the offence are that on the 10th August 2023 at around 1700 hours at Mwanza area GPS coordinates 37M 05557308 UTM 9659035 in Magarini sub-county within Kilifi County was dealing in a wildlife trophy, namely four pieces of elephant tusks weighing approximately 13 kgs with a street value of Ksh.1,300,000/= and at the time of doing so, did not have a permit or other lawful exemption granted under the Act. 2. The Appellant was sentenced to pay a fine of Ksh.7,500,000/= in default to serve 10 years imprisonment. He was aggrieved by the conviction and the sentence and filed the instant appeal. The grounds of appeal are that: (1) The learned trial magistrate erred in law and fact by convicting the appellant when the prosecution did not prove the case beyond reasonable doubt. (2) The learned trial magistrate erred in law and fact by convicting the appellant on the basis of heresy evidence of an informer who did not testify in the case. (3) The learned trial magistrate erred in law and fact by convicting the appellant on the basis of inconsistent and contradictory evidence of prosecution witnesses. (4) The learned trial magistrate erred in law and fact by failing to consider the defence evidence of the appellant which raised doubt on the prosecution evidence. (5) The learned trial magistrate erred in law and fact in sentencing the appellant without putting due consideration to the pre-sentence report filed by the probation officer. (6) The learned trial magistrate erred in law and fact in passing an excessive sentence on the appellant. **Case for prosecution** 3. The case for the prosecution is officers working with Kenya Wildlife Service at Malindi Marine National Park**,** Cpl Paul Ouma PW2, a ranger PW3, Sgt Bernarrd Koome PW4 and Cpl Isack Nyambora PW5 received information that there were two people at Mwanza area of Shakahola who were in possession of elephant tusks. They set off for Mwanza in an unmarked motor vehicle. They were being directed by an informer. That on reaching Mwanza area they found a person, the appellant, standing near a forest. They talked with him and posed as buyers of elephant tusks. He led them to the bush about 20 meters off the road where he showed them a parcel covered with grass and tied up by use of a binding wire. They found the luggage to contain 4 elephant tusks. They then identified themselves to the appellant as Kenya Wildlife Service officers and arrested him. Cpl Nyambora took photographs of the items and prepared an inventory of the items which the appellant signed. They went back to their station where Cpl Nyambora completed a chain of custody form. They weighed the tusks in the presence of the appellant at 13 kg. Cpl Nyambora prepared a weighing certificate which the appellant signed. The appellant was charged with the offence. 4. Cpl Nyambora then prepared an exhibit memo and took the tusks to the National Museums of Kenya for examination. They were examined by a researcher called Esther Nguthu who identified them to be elephant tusks. She prepared a report to that end. 5. During the hearing of the case in court, the examining officer was unavailable to produce the report and the same was produced by her colleague, a senior researcher and head of detection services, Mr. Ogeto Mwebi, PW1. The report was produced as P.Exh. 2. 6. Cpl Nyambora during the hearing produced the exhibit memo, the 4 tusks, the grass that was covering the tusks, the inventory, the recovery certificate, chain of custody form and the weighing certificate as exhibits, P.Exh.2 - 8 respectively. **Defence Case** 7. The appellant in his defence stated in a sworn statement that he is a farmer at Shakahola. That on the 1/8/2023 at around 3pm he was walking on the road where he was grazing. A Probox motor vehicle went and stopped where he was. Two people he did not know alighted. They asked him his name. They said that they had been looking for him for a long time and they arrested him and handcuffed him. Two other people alighted from the vehicle one of whom was armed with a gun. They drove along the road and the vehicle was stopped at a bush. They went into the bush and the people removed a luggage tied with grass. The luggage was opened and it was found to contain elephant tusks. He was photographed and brought to Malindi. He was taken to an office where some things were written down which he was made to sign down without reading. He was taken to the police station and locked up. He was charged. **Submissions** 8. The appellant submitted that the charge was not proved beyond reasonable doubt. He submitted that the informer who gave the information was not produced in court to testify. That the expert who produced the examination report in court was not the maker of the report and there was no compliance with section 77 of the Evidence Act. He submitted that the sentence imposed was not legal. 9. The respondent on the other hand submitted that the charge was proved beyond reasonable doubt and that the defence could not surmount the overwhelming evidence placed before the court by the prosecution. However, that the trial court erred in sentencing the appellant under the punishment provided in section 92(5) of the Wildlife Conservation and Management Act instead of the punishment provided in section 92(2) of the Act under which the appellant was charged. **Analysis and determination** 10. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of **Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR** where the Court of Appeal held that: - “**On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”** 11. The appeal is based on the grounds that the appellant was not found in possession of the exhibits; that the informer was not called to testify in the case; that the evidence of the prosecution was inconsistent and contradictory; that the trial court failed to consider the appellant`s defence and that the trial court failed to consider the pre-sentence report and imposed an excessive sentence. 12. The trial court in convicting the appellant of the offence stated that there was no reason for the Kenya Wildlife Officers to falsely implicate the appellant with the offence. That there was no coincidence that he was found near where the tusks were found. That the prosecution witnesses proved possession and control of the elephant tusks by the appellant. 13. The appellant was facing a charge of being in possession of a wildlife trophy. It is therefore important to define what the term “possession” means. 14. Section 4 of the Penal Code defines “possession” in the following terms: **(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.** 15. The Black`s Law Dictionary 10th Edition defines the term “possession” to mean – **The fact of having or holding property in one’s power, the exercise of dominion over property. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of the claim to the exclusive use of a material object. Something that a person owns or controls.”** 16. The definition of possession connotes two elements – (1) being in physical control of the items of the offence and or in joint control with another (2) knowledge or intention of having the article, instruments, thing or items constituting the offence. **17. In Peter Mwangi Kariuki v Republic** (2015) eKLR, Mativo J. held as follows on the subject: **In my view, possession includes two elements; namely being in physical control of the item and knowledge of having the item. To be guilty of possession, an accused person must be shown to have knowledge of two things, namely, that the accused knew the item was in his custody and secondly he knew that the item in question was prohibited. A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention** 18. The three arresting prosecution witnesses gave evidence that they were acting on information that a certain person was in possession of elephant tusks. They were directed to the place the person was. On reaching there the person saw their vehicle and stopped them. They posed as buyers of elephant tusks and the person, the appellant, led them to where the tusks were in the bush. They thereupon identified themselves as Kenya Wildlife Service officers and arrested him. 19. The appellant on the other hand alleged that he was grazing at the place he was arrested. That the evidence that he was found with elephant tusks was a fabrication by the officers who arrested him. 20. I have examined the evidence of the three arresting prosecution witnesses and the defence evidence. Though the appellant said in his defence that he was grazing at the place where he was arrested, he did not lead any evidence to demonstrate so. He was represented by an advocate during the hearing. No question was put to the prosecution witnesses during cross-examination that the appellant was grazing at the place where he was arrested. If the appellant had given his advocate such instructions, the advocate would not have failed to ask such a question. The appellant raised the issue at the tail end of the case. I find that his defence that he was grazing at the place he was arrested was an afterthought. 21. The prosecution witnesses said that they did not know the appellant before the date of his arrest. It is not possible that the prosecution witnesses found a stranger on the road, proceeded to arrest him for no reason and fabricated the evidence of him being found in possession of elephant tusks. The Appellant admitted that the tusks were found in the bush where they were tied up with grass. I do not believe the evidence that the prosecution witnesses fabricated the evidence of the appellant being found with elephant tusks. It is the appellant who led the prosecution witnesses to where the tusks were hidden in the bush. He had Knowledge of the presence of the tusks in the bush and exercised control over them. He was thereby found in possession of the same. 22. The tusks were examined by a researcher at National Museums of Kenya who identified them as elephant tusks. The examining officer was unavailable to produce her report in court and the examination report was produced in court by her colleague PW1 who was conversant with her hand writing and signature. The report was properly admitted in court. 23. The officer who examined the tusks found them to be elephant tusks. The elephant is classified under the CITEs as an endangered species. The appellant was unlawfully found in possession of a trophy of an endangered species without a permit or lawful exemption. 24. The appellant agued that the informer was not called to testify in the case. There is no law that requires an informer to testify in a criminal case. In any case the trial court did not rely on the information given by the informer to convict the appellant. The court relied on the evidence of possession as given by the arresting officers which fact was proved beyond reasonable doubt. 25. The appellant argued that the evidence of the prosecution was inconsistent and contradictory. He did not pin point any of such in the evidence of the prosecution witnesses. I have perused the record of the trial court and I have not seen any material contradiction. 26. In the final end, I find that the charge against the appellant was proved beyond reasonable doubt. He was rightly convicted of the offence. The conviction is thereby upheld. 27. The appellant was charged under section 92(2) of the Wildlife Conservation and Management Act that provides as follows: ### 92. Offences relating to endangered and threatened species **(1) A person who kills or injures, tortures or molests, or attempts to kill or injure, a 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 five years.** **(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.** 28. The appellant was under the section he was charge liable to imprisonment for a period of not less than 7 years. The trial court instead fined him Ksh.7,500,000/= in default to serve 10 years imprisonment. Section 92(2) does not provide an option of a fine. A court cannot grant an option of a fine where the law provides for a minimum sentence. The sentence imposed by the trial court was illegal and is thereby set aside. 29. I have considered that the appellant was a first offender. I consider the minimum sentence of 7 years to be appropriate for the offence committed and I so sentence him. 30. The upshot is therefore that the conviction of the appellant is upheld but the sentence imposed by the trial court is set aside and substituted with a sentence of 7 (seven) years imprisonment. Sentence to commence from date of sentence by the trial court, i.e, 8/7/2024. **Delivered, dated and signed at GARSEN this 24th day of July 2026** **J. N. NJAGI** **JUDGE** **In the presence of:** **Mr. Oluoch for Respondent** **Appellant- present virtually at G.K. Prison Malindi** Court Assistant - Rahm