[2018] KEHC 8844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 47 OF 2017

STEPHEN MUKALA JOHN..................................APPELLANT

VERSUS

REPUBLIC...........................................................RESPONDENT

(From original conviction and sentence in Criminal Case Number 409 of 2015 in the Principal Magistrate’s Court at Taveta delivered by Hon W.K. Kitur (RM) on 14thSeptember 2016)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Stephen Mkala John, was jointly charged with Ismael Macharo Idi (hereinafter referred to as “his Co-Accused”) on two (2) Counts. Count I was dealing in wildlife trophy contrary to Section 84(i) as read with Section 92 of the Wildlife Conservation and Management Act, 2013 (hereinafter referred to as “the Act.”) The particulars of this charge were that on 11th September 2015 at about 1100 hours at Taveta Town within Taita Taveta County, they were found dealing in wildlife trophy namely two (2) pieces of elephant tusk (sic) to wit 7 kgs without a permit.

2. In Count II, they were charged that on the aforesaid date time and place, they were found in possession of wildlife trophy contrary to Section 95 of the Act.

3. The Learned Trial Magistrate Hon W.K. Kitur, Resident Magistrate, acquitted the Appellant and his Co-Accused on Count I as the Charge Sheet was defective and the Prosecution failed to take advantage of Section 214(1) of the Criminal Procedure Act Cap 75 (Laws of Kenya) to amended the Charge Sheet. He acquitted the Appellant’s Co-Accused on Count II but convicted the Appellant. As the Learned Trial Magistrate had been transferred from Taveta Law Court, Hon G. Kimanga (RM) fined the Appellant Kshs 1,000,000/= or in default to serve five (5) years imprisonment.

4. Being dissatisfied with the said judgment, on 29thJune 2017, the Appellant filed a Notice of Motion application seeking leave to have his Appeal heard out of time, which application was allowed and his Appeal was deemed to have been duly filed and served. He relied on six (6) Grounds of Appeal. The issue he had placed before this court was whether or not the Prosecution proved its cases beyond reasonable doubt.

5. When the matter came up on 19th December 2017, the State informed this court that it would not be filing its Written Submissions because it was conceding to the Appeal herein.

LEGAL ANALYSIS

6. Despite the State conceding to the Appeal herein, this court found it prudent to consider if the reasons it gave for conceding to the appeal were fair and reasonable. Appreciably, an appellate court should consider the facts of a case even where the State has conceded to an appeal to establish if such a concession should be granted.

7. In the case of Mwanguo Gwede Mwarua vs Republic [2015] eKLR,the Court of Appeal made a similar observation when it stated as follows:-

“The concession notwithstanding, it is still our duty as a second appellate Court to consider the issues of law raised by the respondent as grounds for conceding the appeal in order to determine whether the said concession is merited.”(SeeNORMAN AMBICH MIERO & ANOTHER VS REPUBLIC, CR.APP.NO.279 OF 2005 (NYERI)).”

8. The State submitted that it had conceded to the Appeal herein because the Prosecution although the Prosecution had contended that the elephant tusks were found under the seat the Appellant was said to have been seating in the Motor Vehicle KW S officers hired for the informer, it had failed to prove that he was in possession of the said elephant tusks.

9. It was also its contention that the Prosecution did not present an inventory of the said elephant tusks that had been filed by the Appellant, his Co-Accused, KWS No 6022 Corporal Bernard Kiprono (hereinafter referred to as “PW 1”) and KWS No 8847 Ranger Kiplangat Talam.

10. Further, it averred that despite the Prosecution having contended that the Appellant had confessed to having been found in possession of the elephant tusks, no Confession statement was presented before the Trial Court. It added that the registration number of the Motor Vehicle he had been ferried in together with the informer was not given to the Trial Court.

11. It was its further averment that although the Prosecution has the discretion to decide the number of witnesses it ought to call during trial as contemplated in Section 143 of the Evidence At Cap 80 (Laws of Kenya), it failed to call crucial witnesses such as the driver of the aforesaid Motor Vehicle and the informer who was already known to the Appellant as they had sat together in the same Motor Vehicle.

12. It stated that this was necessary as No 51829 Evans Ombongi (hereinafter referred to as “PW 3”) had testified that he never saw the driver of the Motor Vehicle and the informant thus rendering this case as being the KWS Officers’ word against that of the Appellant herein.

13. A perusal of the evidence that was adduced before the Trial court showed that at about 9. 00am on the aforesaid date and place, PW 1 and PW 2 were alerted by an informer that there were two (2) people from Kitobo who were selling two (2) elephant tusks. They hired a Motor Vehicle for the informer and requested him to bring the sellers to them.

14. The informer and the two (2) sellers arrived near Tripple J Hotel at about 11. 00am and when they tried to sell to them the elephant tusks which had been packed in a gunny bag, they arrested them. The Appellant’s Co-Accused came riding a Motor Cycle, the registration number which neither PW 1 nor PW 2 knew and only entered into the said Motor Vehicle when negotiations of the sale of the elephant tusks began.

15. There, however, appeared to have been contradictions in the evidence that was adduced by PW 1, PW 2 and PW 3. According to PW 1, the Appellant was carrying the elephant tusks and that the informer had told him that the Appellant was the one who loaded the elephant tusks in the said Motor Vehicle. On his part, PW 2 stated that the elephant tusks were under the seat the Appellant was seated.

16. PW 3 did not allude to the said Motor Vehicle. He stated that he was not aware of the Appellant and his Co-Accused having entered a private motor vehicle. He merely stated that the Appellant and his Co-Accused were riding a Motor Cycle and were carrying ivory. He was not sure who was riding the said Motor Cycle.

17. Notably PW 3 was the Investigation Officer. It was his responsibility to present a cogent case without contradictions. He did not even know the circumstances relating to how the Appellant and his Co-Accused were arrested. He also made reference to a third person who was arrested, a fact that was never alluded to by PW 1 and PW 2 as they had only made reference to the Appellant and his Co-Accused.

18. These contradictions raised doubt in the mind of this court leading to ask itself as to what really transpired on the material date and time. As was rightly pointed out by the State, it was the KWS officers’ word against that of the Appellant. As PW 1, PW 2 and PW 3 did not see the Appellant load the elephant tusks in the said Motor Vehicle, it was risky to convict him as they relied on hearsay evidence of the informer who was never called to testify in court.

19. Appreciably, the Prosecution was entitled to protect the identity of the informer due to the serious nature of the offence. The fact that he became physically known to the Appellant and his Co-Accused on the material date and time, they did not necessarily know that he was an informer. The driver of the Motor Vehicle may have been called as a witness herein. However, save for confirming that he had carried the Appellant and the informer, it could not have proved to whom the elephant tusks belonged. The elephant tusks could have belonged to the informer but were loaded in the said Motor Vehicle by the Appellant.

20. Further, PW 1 stated that the driver of the said Motor Vehicle was known as Jones. On the other hand, PW 2 stated that the said driver was called Samuel James. These contradictions made this court hesitate in finding that the Prosecution proved its case beyond reasonable doubt,

21. Notably, inconsistencies and/or contradictions in testimonies in a trial are expected because each witness will normally testify as to what he perceived and/or observed at any given time. However, these inconsistencies and/or contradictions must not be so glaring as to lead a trial court to entertain doubt as to what really transpired at any given time. The version of unfolding events must more or else be similar so as to render the inconsistencies and/or contradictions immaterial and irrelevant.

DISPOSITION

22. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 29th July 2017 was successful and there was merit in the State conceding to the said Appeal. The same is hereby allowed.

23. Doubts were raised in the mind of this court lending it to give the Appellant benefit of doubt. This court therefore hereby quashes the conviction and sets aside the sentence that was meted upon him by the Trial Court as it would be clearly unsafe to confirm the same. The court hereby orders that the Appellant be set free forthwith unless held or detained for any other lawful reason.

24. It is so ordered.

DATED and DELIVERED at VOI this 17th day of January 2018

J. KAMAU

JUDGE

In the presence of:-

Stephen Mukala John - Appellant

Miss Anyumba - for State

Susan Sarikoki– Court Clerk