[2017] KEHC 3738 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL NO 25 AND 25A OF 2017

[From the original conviction and sentence in the Chief Magistrate’s Court at Narok in Criminal Case No. 1447 of 2014, R. v. Tiapukel Kuyoni and Munyao Nzusyo]

TIAPUKEL KUYONI ….………...........1ST APPELLANT

MUNYAO NZUSYO …..………..........2ND APPELLANT

VERSUS

REPUBLIC ………………..…...........….RESPONDENT

JUDGEMENT

1. The appellants have appealed against their conviction and sentence of a fine of Shs.20 million in default life imprisonment in respect of each of the following offences namely keeping of 6 pieces of elephant tusks contrary to sections 95 as read with 92 of the Wildlife Conservation and Management Act of 2013, being count 1, being in possession of 6 pieces of elephant tusks being count 2 and dealing in 6 pieces of elephant tusks being count 3.

2. The state has supported both the conviction and sentence imposed upon the appellants.

3. The appellants were convicted on the direct evidence of No. 8025 Ranger Evans Odhiambo (PW1) and No. 76603 PC Diba Chachu (PW3). The 2 officers as a result of information received from an informer posed as buyers of the 6 pieces of elephant tusks and in the process of negotiations in respect of the price they arrested both appellants. The defence of the appellants is that they were framed by the police.

4. The 1st appellant through his counsel has raised 13 grounds of appeal in his amended/supplementary petition of appeal. In ground 1, he has faulted the trial court for convicting him on defective charges. I have considered the charges as filed and I find that in the statement of the offences it is alleged that the appellant together with his co-appellant were charged in count 1 with keeping 6 pieces of elephant tusks contrary to section 95 as read with 92 of the Wildlife Conservancy and Management Act of 2013. The provisions of the law alleged to have been infringed in all the 3 counts are the same namely; section 95 as read with section 92 of the Wildlife Conservancy and Management Act of 2013. I find that there is merit in this submission.

5. Section 95 of the Wildlife Conservancy and Management Act of 2013 is self-regulating. The provision of section 95 create the offences of keeping or being found in possession of a wildlife trophy or deals in wildlife trophy or manufactures any item from a trophy without a permit. It then proceeds to provide for a fine of not less than one million shillings or imprisonment of not less than five years or to both such imprisonment and fine. It therefore follows that the reference to section 92 of the same act in the statement of the offence is superfluous. It is irrelevant. However, the particulars in support of each of the 3 counts charged against the appellants leave no doubt as to what the appellants are alleged to have done. In other words the particulars of the 3 counts are not defective in any way. I therefore find that the reference to section 92 of the Wildlife Conservancy and Management Act of 2013 in the statement of the 3 offences charged is a curable defect in terms of section 382 of the Criminal Procedure Code (Cap 75) Laws of Kenya.

6. Furthermore, the advocate for the appellants has submitted that the appellants should have been charged with one main count and the other 2 counts as alternative counts. He has further submitted that the reason for this is that the 3 counts are based on the same facts. He has further submitted that possession and keeping as filed amount to the same thing since those 2 terms are similar. I find that there is merit in this submission. I do not see how a person can be in possession of game trophies without keeping them. The problem that the trial court is faced with is that in our system of criminal justice all offences whether misdemeanours or felonies are summarily tried and finalized. In such a situation it is difficult for the court to know whether the evidence is going to disclose the offence of possession or dealing in wildlife trophies. The offences that the prosecution intends to prove will only become clear at the stage of the close of the prosecution case. In terms of section 214 of the Criminal Procedure Code, it is then open to the court to amend the charges as filed either on his own motion or upon application by the prosecutor. In the circumstances of this case, what the prosecution has done is to split one charge into 3 charges. In view of the prosecutorial independence, the court can only make a determination at the close of a trial. If it finds that the prosecutor has split the charges in the sense that they arise out of the same set of facts, the court is bound to impose a punishment in only one of them but not on all the 3 charges. In the instant appeals, I find on the evidence that the offence proved is one of possession. I further find that in the instant appeals the evidence shows that the 2 appellants were in possession of the 6 elephant tusks, and for that reason sentence may only be imposed in respect of possession and not in keeping and dealing in 6 pieces of elephant tusks.

7. In the instant appeals the prosecution has split the charges by charging the appellants with 3 offences namely keeping, possession and dealing. The evidence clearly indicates that both appellants were in possession of the 6 pieces of elephant tusks, which they had kept in the homestead of the 1st appellant. It is the 1st appellant who led the team of the game rangers to a specific location in his homestead where he dug up the 6 pieces of elephant tusks and put them in a nylon sack. In doing so, he was assisted by the 2nd appellant. This is clear from the evidence of PW1 and PW2. This mode of charging by way of splitting charges does not amount to a defect in the charges. It only affects the issue of sentencing if all the 3 charges are proved by evidence. This would become clear in the paragraphs that deal with sentence. In the circumstances of these appeals, this ground of appeal is lacking in merit and is hereby dismissed.

8. In ground 2, the appellants have faulted the trial court for convicting them of offences that were not proved beyond reasonable doubt. In this regard, I find that there was ample evidence to support the offences of keeping or possession of the 6 pieces of the elephant tusks. I further find that the offence of dealing in 6 pieces of elephant tusks was not proved by evidence. There was no evidence to show at what price the 2 appellants were selling the elephant tusks. There was also no evidence that PW1, PW2 and PW3 had negotiated and agreed to buy the elephant tusks from the 2 appellants. In the circumstances, I find that count 3 which charged the appellants with dealing was not proved beyond reasonable doubt. I further find that the offences of keeping in count 1 and possession were proved. It therefore follows that this ground of appeal only succeeds in relation to count 3 which charged the appellants with dealing.

9. In ground 3, the appellants have faulted the trial court in failing to call key and essential witnesses to complete the chain link of possession in order to sustain the conviction. In their submission, counsel for the appellants has submitted that the informer was not called as a witness to provide evidence on negotiations in respect of the price of the 6 pieces of elephant tusks with the 1st appellant. He further submitted that there is in place in Kenya a witness protection programme which I take judicial notice of as being section 3C of the Witness Protection Act (Cap 79) Laws of Kenya. According to counsel this was an essential witness and lack of his evidence left a gap in the prosecution case. It is settled law that the identity of the informer should not be disclosed unless such disclosure is done to establish the innocence of the accused person. The case of the English Court of Appeal namely Marks v. Beyfus (1890) 25 QBD 494 is an authority in this regard. The principle pronounced in Marks v. Beyfus was recognised by the Supreme Court of Kenya (now) the High Court in Bishen Chand Mahindra v. Mathira Dass (1941) 19 (2) LRK 67. In that case the Supreme Court upheld the obligation of the police in refusing to disclose the identity of the informer because the production of the police file in court would have been contrary to public policy. The Supreme Court judgement in that case is still good law. The principle pronounced therein in regard to the informer privilege now has statutory basis in section 132 of the Evidence Act (Cap 80) Laws of Kenya whose provisions direct that “No public officer shall be compelled to disclose communications made by any person to him in the course of the duty, when he considers that the public interest would suffer by the disclosure.”

10. In the circumstances, the prosecution was justified to withhold the identity of the informer. I therefore find that the evidence of the informer was not going to assist the appellants in establishing his innocence. In this regard the unsworn statement of the appellant is that the 6 pieces of the elephant tusks were planted on him and the 2nd appellant. The evidence of the prosecution witnesses was that these were elephant tusks. It was common ground that these were elephant tusks. The trial court was entitled to find from this evidence that the prosecution exhibit PMFI 1-6 were 6 pieces of elephant tusks. I therefore find that the exhibits produced as PMFI were elephant tusks and therefore it was unnecessary to call for further verification evidence. In the circumstances, I find that this ground of appeal is without merit and is hereby dismissed. This finding applies to grounds 5 of the petition of appeal in which the appellants had faulted the trial court that the exhibits were not scientifically proved to be 6 elephant tusks.

11. In ground 4, the appellants have faulted the trial court in convicting them in the absence of the inventory and lawful chain of possession of the recovered exhibits. In this regard the evidence of PW1 and PW2 is that they packed the 6 pieces of elephant tusks in a nylon sack. The evidence of No. 76603 PC Constable Diba Chachu is that they recovered the 6 elephant tusks, put them in a sack and carried them into their car. These were the same exhibits that were produced in court. It is therefore clear that there was established a chain of possession from the point of recovery to the point of them being produced in court. In the circumstances, I find no merit in this appeal and hereby dismiss it.

12. In ground 6, the appellant has faulted the trial court on account of lack of evidence in respect of the ownership of the homestead where the exhibits were recovered. He has further faulted the court for failing to find a nexus between the photographs that were produced and the appellant. In this regard the evidence of No. 46623 Cpl Paul Kiilu (PW4) is that he was taken to the scene of crime by PC Diba Chachu and while there he took photos of the home of the appellant and the pit from where the elephant tusks were dug from. These photographs were put in evidence as prosecution exhibit P exh 9A – E – 5 and P exh 9f was the report. In view of the evidence of PC Diba Chachu it is clear that the photos taken at the scene of crime clearly show the place where the 6 elephant tusks were dug out. It is also clear that that was the homestead of the 1st appellant. In view of the combined evidence of PW 3 and PW4 I find that this ground of appeal lacks merit and is hereby dismissed.

13. In ground 7, the appellant has faulted the trial court for failing to find that all the ingredients of the offence were not proved. He has further faulted the trial court for not cautioning itself on the reasonable limit in the exercise of police powers in relation to the appellant’s right to a fair trial. The evidence of the prosecution at this point is that PW1, PW2 and PW3 were acting on a tip off from an informer. They then posed as buyers of the 6 pieces of elephant tusks and in the process arrested the 2 appellants. Entrapment is not a defence under the common law which is codified in section 3 of the Judicature Act (Cap 8) Laws of Kenya. I find from the prosecution evidence that they did not induce the appellant to commit this offence, all that they did was to provide an opportunity and incentive for the appellant to produce the 6 pieces of elephant tusks. In the circumstances, I find that this ground of appeal is without merit and is hereby dismissed.

14. In ground 8, the appellant has faulted the trial court for failing to find that there was no proof of communication between the informer and the police officers who posed as buyers on the one hand and the appellant on the other hand. In particular the appellant has faulted the court for failing to call the telephone mobile service providers to give evidence in court to show that there was communication between the informer and the police officers on one hand and the appellant on the other hand. I have dealt with this ground of appeal in ground 3 in the foregoing paragraphs and for that reason this ground of appeal is without merit and is hereby dismissed.

15. In ground 9, the appellant has faulted the trial court in finding that the appellant traded in ivory and yet on the evidence no money was produced in court to support that finding. In this regard the evidence of PW1 is that while they were in the booth of the motor vehicle they overheard 2 of their colleagues negotiating over the price of the 6 elephant tusks. As a result they came out of the booth and immediately arrested the 2 appellants in court. They found the 6 elephant tusks packed in a nylon sack, which tusks were put in evidence as exh PMFI 1 – 6. In view of this evidence, the finding that the appellants were dealing in elephant tusks is not proved. There were negotiations in respect of the prices which did not end up in a completed sale transaction. In the circumstances, I find that his ground of appeal has merit and I hereby uphold it.

16. In ground 10, the appellant has faulted the trial court for finding that the appellant was in actual possession of the ivory when the prosecutor failed to discharge the onus and standard of proof. I find from the evidence that the appellant and his co-appellant dug out the 6 elephant tusks from the ground in the home of the 1st appellant. I find that the appellant had knowledge where the elephant tusks were hidden. They dug them up and took them to the car in which they were arrested. In the circumstances, I find that the 2 appellants were in possession of the elephant tusks. I therefore find no merit in this ground of appeal and is hereby dismissed.

17. In ground 11, the appellant has faulted the trial court for failing to consider the defence of the appellant. I find that the defence of the appellant was that the case against him was framed. In the light of the totality of the evidence produced during trial, I find that this ground of appeal is lacking in merit and is hereby dismissed.

18. In ground 12, the appellant has faulted the trial court for shifting the burden of proof to the appellant. I find that the trial court considered the evidence of the defence that they were framed by the police and rightly rejected it. In the circumstances, I find that this ground of appeal is lacking in merit and is hereby dismissed.

19. In ground 13, the appellant has faulted the trial court for imposing a sentence that was unconstitutional, unlawful, harsh and excessive. In this regard, I find that count 3 which charged the appellant with dealing with 6 elephant tusks was not proved. I therefore allow the appellant’s appeal in respect of this count. The conviction and sentence are hereby set aside.

20. I find that both counts 1 and 2 were proved beyond reasonable doubt. The two counts arose out of the same transaction. In the circumstances, the appellant cannot in law be punished twice for the same offence. I find that punishing them for both offences would amount to double punishment. Double punishment is prohibited by the constitution in Article 50 (2) (c). It is also prohibited in section 138 of the Criminal Procedure Code (Cap 75) Laws of Kenya. In view of my findings in paragraph 3, I find that the sentence imposed in both count 1 and 2 are unconstitutional and unlawful. They are hereby set aside.

21. This is a first appeal. As a first appeal court, according to Okeno v. R (1972) EA 32, I am required to reassess the entire evidence produced at the trial court and make my own independent findings. I have done so and found that the appellants were convicted on sound evidence.

22. I hereby impose a sentence of 5 years imprisonment and a fine of one million shillings (Ksh.1,000,000/=) in default to serve 12 months imprisonment in respect of count 2, which charged the appellant with being in possession of 6 pieces of elephant tusks. The conviction and sentence is count 1 is hereby quashed.

Judgement delivered in open court this 11th day of July 2017 in the presence of both the appellants and Ms Nyaroita for the state.

J. M. Bwonwonga

Judge

11/7/2017