REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CRIMINAL APPEAL NO 87 OF 2016

FEISAL MOHAMED ALI ALIAS FEISAL SHAHBAL......APPELLANT

VERSUS

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

(Being  an appeal from the judgment and sentence made by the Principal Magistrate’s court at Shanzu ( Hon. D Mochache) on 22^nd day of  July, 2016 in Mombasa Chief Magistrate’s criminal case No 1098 of  2014, Republic  Versus Abdul Halim Sadiq Omar & 5 Others)

JUDGMENT

1. The Appellant herein FEISAL MOHAMED ALI Alias FEISAL  SHAHBAL and five others were charged with offences under the  Wildlife Conservation and Management  Act, 2013  comprising of  two  (2) counts  namely;

In Count I, they were charged with possession of wildlife trophies  contrary to section 95 as read with section 92 of the Wildlife and  Management Act, No 47 of 2013 of the Laws of Kenya.

The particulars were that;

“On the 5^th day of  June, 2014 at the business  premises of Fuji Motors East Africa Limited, situated along  Tom Mboya  Avenue Tudor Estate, Mombasa, the appellant jointly with others  were found in  possession of  wildlife trophies of and endangered species namely 314 pieces of elephant  tusks weighing 2152.45 kg without a permit”.

In count II, they  were charged with dealing in Wildlife trophies  contrary to section 84 (1) as read together with  section 92 of the  Wildlife Conservation  and Management Act No. 47 of 2013 of the  Laws  of Kenya.

The facts were that;

“ On the 5^th day of June, 2014 at the business premises  of Fuji Motors East Africa Limited  situated along Tom Mboya Avenue, Tudor Estate, Mombasa, the appellant jointly with others were found dealing in wildlife  trophies of an endangered species namely 314 pieces of elephant tusks weighing 2152. 45 kgs without a  permit.”

2. The case proceeded for hearing  before the trial court which rendered its judgment  on 22^nd July, 2016, whereby the appellant was  convicted of the offence of being in possession of trophies of an  endangered species and convicted to serve twenty (20) years  imprisonment and in  additional  pay a fine of Ksh 20,000,000/- (Twenty Million shillings).

3. The appellant was aggrieved and dissatisfied with the judgment,  conviction and sentence, hence filed an appeal in this court citing  the following grounds in his petition of appeal dated 2^nd August,  2016:

(a) That trial court erred in law and in fact in that contrary to the provisions of Article 50 (2) of the Constitution as read with Section 70  and 178 of the Criminal Procedure Code, the trial court  should have delivered its judgment in the Shanzu law Courts but strangely and without any involvement of the parties, the trial court  delivered its judgment in the said matter on 22.7.2016 in a compound belonging to the complainant to wit Kenya  Wildlife Services at Marine park  ,Bamburi. This was despite an objection against such a delivery of judgment in the said venue by accused No 1 and the appellant. Consequently, it clearly appeared that the trial court was simply out to favour  the complainant. In the result justice was not done and was not seen to have been done in the case. (As such, the complainant was a judge in its on case).

(b) That the trial court erred in law and in fact in that the entire judgment lacks logic, reason or rhyme as there is no consistency in the manner that the trial court handled what the court  described as puzzles in the prospections’ case. In the result the trial court erred in that the  said judgment failed to unravel the said puzzles with any degree of certainty which thereby means that  the conviction  of the Appellant for  the offence of  possession of wildlife trophies is not safe and reliable.

(c) That  the trial court erred in law and in fact in that it failed to determine with any degree of care the inter play of the following facts;

(i) Upon the alleged discovery of the ivory at the premises of Fuji  Motors East Africa Ltd in Tudor, Mombasa no photographs were produced in proof of that fact nor was any inventory made  of the said discovery.

(ii) immediately upon the said alleged discovery four people namely a watchman, two young Asian men and a cleaner were in the said compound. At least the watchman  and the said young men knew who had the keys to the store where the contraband  goods were kept. Strangely none of the said four people  participated in the said trial either as  witnesses or as accused persons.

(iii) The facts surrounding the alleged removal of the said ivory  from the premises of Fuji Motors East Africa Ltd was not  proved at all. In other words the motor vehicle that was used and the people involved in the loading and off-lading were not called as witnesses.

(iv) Severally the trial court went as far as to say that  the police officers who visited the scene of the alleged discovery were not trustworthy or credible witnesses.

Accordingly, it is highly doubtful whether indeed any ivory was found in the premise of Fuji Motors East Africa Ltd and that doubt should have been returned in favour of the appellant.

(d) That the trial court erred  in law and in fact in that the final determination of the matter is completely at variance with a number of fundamental holdings that the trial court made.  These are:-

(i) At page 58 of the said judgment, the trial court stated:  “…..I  hasten to add that if this court (trial court ) would acquit the accused persons then there would be outrage from the  public, who have been whipped emotionally to  believe that the accused persons are guilty…..”

(ii) At page 60 of the said judgment, he trial court stated “…the case as presented before me is a puzzle….the  investigating officer simply scattered flowers  (evidence) without his involvement……”

(iii) At page 63 of the said judgment, the trial court stated: “….accused No. 6 ( appellant ) was  aware that the ivory had been recovered  ….his  errand boy had  been arrested…..”

(iv) At page  64 of the said judgment, the  trial court stated: “…this is a glaring contradiction that creates dents in the  prosecution’s case ……..”

(v) At page 73 of the said judgment, the trial court stated:”….the people who could have explained to this  court who brought the ivory into the premises were the  night guard, the two young men and the cleaner but the  prosecution did not find it fit to call them as witnesses  ….having failed  to  call these crucial witnesses, the prosecution failed to discharge that burden.”

(vi) Also  at page 73 of the said judgment, the trial court stated:”…the evidence of accused No 2 was not rebutted….”

(vii) At page 67 of the said judgment, the trial court stated:”….  the six million dollar question that begs for  an answer is, were the police officers trying to protect  someone?

(viii) Between pages 66 and 67 of the said judgment, the  trial  court found that the police officers who allegedly  pounced on the ivory in question were not reliable.

(ix) At page 68 of the said judgment, the trial court held  that Mr Tom Juma, a police officer who appeared  as  prosecution’s witness No 21 was not a credible witness.

The sum total of the said  fundamental holdings is that  there  were glaring doubts  that had been created and as  such the trial court should have given the benefit of those  glaring  contradictions ( doubts) in favour of the appellant hence acquit him of the offence.

(e) That  the trial court erred in law and  in fact in that arising from  what  is stated in paragraph 3, the  trial court manifestly  contradicted itself for it was not possible to  acquit  accused 1 and 2 and at the same time convict the  appellant as the primary evidence against the three was co- joined.

(f) That  the trial court  erred in law and in fact in that having expressly found out that the people who could have told the court the identity of the owner of the ivory therein did not testify, it was manifestly unjust for  the trial court to, only in the case of the  appellant, assume that  the very same ivory (which the court did not know who was the owner) miraculously belonged to the appellant.

(g) That  the trial court erred in law and in fact in that arising from the contents of paragraph 3-6 herein the trial court failed to make determinations on a number of crucial  issues  that had been left to the  court for determination. Consequently, the judgment of the court is incomplete  and not reliable.

(h) That  the trial court  erred in law and in fact in that it applied double standards in its consideration- a very understanding and fair consideration for accused No .1-5. BUT a very unreasonable and harsh consideration against the Appellant. Indeed, bearing in mind that trial court’s holding  on the issue of the expectation of the public, the court erred in that it arrived  at a decision which was meant to appease the public.

(i) That the trial court erred in law and in fact in that the  circumstances surrounding the case failed to establish how the ivory landed at the scene and how the same was removed. As such, the  trial court erred in that it failed to realize that the said two crucial  facts rendered  the purported chain of evidence against the  appellant totally unreliable. In other words the chain had no beginning and the same crumbled right from the start.

(j) That the trial  court erred in law  and in fact in that  it blamed the advocates involved in the  case for having dragged the  proceedings when the very court had at the conclusion  of the case commended the advocates for their proper conduct. Herein, it is quite  clear that the trial court is inconsistent and is therefore unreliable.

(k) That  the trial court erred in law and in fact in that it convicted the  appellant on the basis of mere suspicion and to the extent  that the trial court acquitted accused No. 1-5 of the said offence which persons, according  to the incredible story presented by the  prosecution had a lot to do with the alleged offence, it was not open  to the said  court in the said breath to convict the appellant of the appellant’s  alleged profile  in the entire  episode was of a much lower scale than that of  accused No 1-5.

(l) That the trial court  erred in law and in fact in that  it relied on its own theory of evidence  when it held  that motor vehicle KAM 197 F was the same as KAM 832W and that  therefore exhibit 19 was either entered falsely or that the motor vehicle had a fake registration number. Such a finding is not supported by any evidence whatsoever.

(m) That the trial court erred in law and in fact in that it assumed, without any evidence, that the telephone calls were in respect of the communication relating to the discovery of the ivory. The court  also wrongly assumed that the appellant ran away to Tanzania. Indeed, the trial court erred in that the trial court was heavily influenced by the adverse media reports that had been circulating ever since the discovery of the contraband and  which the complainant was the prime author of, for the sole purpose of  prejudicing the appellant, who was thereby denied justice. Hereby the trial court utterly contradicted itself. As such its decision is unreliable and ought not to be allowed.

(n) That the trial court erred in law and in fact in that it generally found out a number of crucial witnesses for the prosecution were shaky and not believable and thereby used that reason to acquit accused 1-5 but strangely used the same shaky and incredible evidence to convict the appellant.

(o) That the trial court erred in law and in fact in that the sentence imposed by the trial court against the appellant of imprisonment for a term of 20 years plus the imposition of a fine of Kenya shillings Twenty Million ( Ksh. 20,000,000/=) is  illegal for and imposition of a fine must, per force, have a default clause for a prison term in default of payment of such a fine.

(p) That the trial court erred in law and in fact in that the aforesaid sentence was wholly unjustified and totally unwarranted. The trial court flippantly dismissed the strong mitigating  circumstances and proceeded to make its own political views which clearly showed that the court was more interested in pleasing the political class as opposed to doing justice to the parties that were before it.

(q) That that the trial court erred in law  and in fact in that the conviction and sentencing imposed was totally against the weight of evidence that had been presented before the court of law.

Further, the appellant on 2^nd January, 2018 filed supplementary  grounds of appeal. They are as follows;

(a) The learned magistrate erred both in fact and in law by the reprehensible, wonton and illogical act of unlawfully, illegally and un-procedurally destroying the earlier record of the trial and proceedings conducted by other magistrates and particularly since no party to the proceedings had applied for or requested for or called for any such destruction of any of the proceedings of the court;

(b) The  learned magistrate erred both in fact and in law by  unlawfully, illegally  and un-procedurally destroying the earlier ( and alleged) record of the proceedings that led to the issuance of  alleged warrant of arrest executed against the appellant in Tanzania and or failing to make the said  record a part of the proceedings before the court;

(c) The learned magistrate  erred in fact and in law in arriving at the decision  to convict the appellant and thereafter subjecting him to a 20 years sentence  delivered in the shortest 2 pages judgment devoid of any analysis, logic or reasoning based on any evidence placed before the court;

(d) The leaned magistrate erred in law  in failing to discharge the appellant after arriving at findings of the court, which she  recorded and which she ought not have ignored, that left the learned trial  magistrate with no option but to return a  finding of not- guilty as relates to the appellant;

(e) The learned magistrate erred in fact and in law in as much as she failed to ensure that her judgment must qualify as such under the law and flow from an address of the correct issues, or be quashed;

(f) The learned magistrate erred in fact and in law by failing to conduct the hearing in accordance with the law;

(g ) The learned magistrate erred in fact and in law by turning a blind  eye to the failure by the prosecution to produce crucial witnesses and evidence and adopting the presumptions in law favourable to the appellant;

(h)  The learned magistrate erred in law for failing to consider  evidence actually produced before the court;

(i)  The  learned magistrate erred both in fact and in law in her failure to ensure that the court remained independent and impartial during the course of the entire proceedings and  judgment;

(j) The learned magistrate erred in law by accepting, considering and acting upon hearsay evidence and several untested theories under the pretext and or label of being ‘circumstantial  evidence’;

(k) The learned magistrate erred in law by allowing herself to be driven by suspicion and or motivated by suspicion and or  basing her considerations on suspicion, which can never in law form the basis of any conviction;

(l) The learned magistrate erred in law in as much as she failed, refused and or neglected to consider  the exact  extent of the burden of proof required  of the prosecution in the test of  “beyond any reasonable doubt” and the prosecution’s failure to achieve it;

(m) The learned magistrate erred in law by failing, refusing and or neglecting to make the presumption required of her in law, that the failure by the prosecution to produce evidence means that such evidence is unfavorable to the prosecution’s case.

(n) The learned magistrate erred both in fact  and in law in as  much as she completely abdicated  the court’s  lawfully  mandated role in a criminal  trial;

(o) The learned magistrate erred both in fact and in law in as much as she placed reliance by her court on matters not presented before the court as evidence;

(p) The learned magistrate erred both in fact and in law in as much as she placed  reliance by her court on matters  not on the  court’s  record at all;

(q) The learned magistrate erred both in fact and in law in as much a she placed reliance by her court and gave consideration and relied upon illegally obtained evidence;

(r) The sum total of the foregoing is that inevitably, the learned magistrate erred in law and in fact by convicting the appellant  when the prosecution did not prove their case to the required standard thereby occasioning the appellant a miscarriage of justice.

(s) The learned trial magistrate  erred in law and in fact in convicting the appellant where the essential ingredients of the charge of POSSESSION OF WILDLIFE TROPHIES  CONTRARY TO SECTION 95 A READ TOGETHER WITH SECTION 92 OF THE WILDLIFE CONSERVATION AND MANAGEMENT  ACT, NO. 47 OF 2013 OF THE LAWS OF KENYA, had not been proved by the prosecution;

(t) The learned magistrate erred in law and in fact  by drawing adverse inferences against the appellant thus shifting the  burden of proof contrary to the law of evidence;

(u) The  learned magistrate  erred in law and in fact by failing to consider  the defence put forward and submissions by the  appellant;

(v) The judgment is not well reasoned  and is based on suspicion, guess work, speculation and the summation of alleged facts whose process, logic and reasoning are not explained;

(w) The learned trial magistrate erred in law and in fact by basing her judgment on inconsistent, incredible, contradictory and unreliable evidence of the prosecution witnesses;

(x) The learned magistrate  erred in law and in fact  by basing her judgment on assumptions, theories and suspicion thus arriving at a finding which was incapable of support by and contrary to evidence on record;

(y) The evidence on record was not sufficient to sustain a  conviction;

(z) The learned magistrate erred in law in as much as she allowed or ignored or neglected the clear and systematic violation of the appellant’s constitutional rights and particularly his rights under Article 27 (Equality and Freedom from discrimination), Article 28 (Human Dignity), Article 29  (  Freedom and Security of the person, ) Article  31 (Privacy),Article 39 ( Freedom of Movement and  residence), Article 47 ( Fair  Administrative action), Article  48 ( Access to Justice), Article 49 ( Rights of persons arrested), Article 50 ( Fair  Hearing ), Article  51 (Rights of persons detained, held  in custody or imprisoned),  Article 50, Article 50 (2) (b), Article 50 (2) (c ), Article  50 (2) (g), Article  50 (2) (h), Article  50 (2) (i), Article 50 (2) (i), Article  50 (4),and  Article 31 of the Constitution of Kenya;

4. The appeal was admitted for hearing before a one judge bench and  directions taken to the effect that the hearing would be by way of written submissions.

The appellant’s counsel filed their written submissions on 22^nd January, 2018 while the Respondent’s counsel filed theirs on 29^th  December, 2017.

5. The appeal proceeded for hearing on 18^th April, 2018 where the  counsel for the parties highlighted their submissions.

6. Mr Magolo, one of the appellant’s counsel began by submitting on  the manner in which the proceedings from which the appellant was  convicted and sentenced were conducted before the trial court. He  stated that  it was  their argument  that the same called for the nullification  and setting aside of the  entire proceedings, conviction  and sentence based on the  same.

7. He submitted that the trial, for the appellant  who was charged with  five others not before court in this appeal  commenced with the  plea,  applications  for bond, rulings and testimony of four  witnesses before  Mr Karani ( SRM) who ceased to have jurisdiction and it was then  taken over by Hon D. Mochache ( SPM) who started the matter de  novo, by consent of the advocates on  record then. He stated that the  said proceedings were missing from the  record of appeal hence the  court and all the parties involved have been denied the use and  benefit  of them . He argued  that an order for a trial to start de novo  is not  equivalent to a  retrial as ordered by the High court so that the  proceedings before the preceding magistrate  ought not be expunged  or  destroyed or hidden or kept away. He submitted that this alone  renders the trial, conviction and sentence against the appellant a  nullity.

8. According  to  Mr Magolo, the absence  of these  initial proceedings  denied the appellant the  right  to test the credibility of the witnesses  and an opportunity to  demonstrate to the court that there was a  difference between what had been said  either before another court  and what was being said in the current court. He pointed out that  this happened when Pw6, CIP Peter Mbua was being cross  examined by Mr Mwakisha, counsel for 1^st accused at page  32 of the proceedings  and the  prosecution objected because  he did not want  the preceding proceedings to be referred to.

9. Mr Magolo also submitted that  this court, contrary to what is  expected of it as a first  appellate court, has been denied and  opportunity to ever see, read, or  anlayse the evidence that was  adduced before Mr Karani with regard to what transpired in the case  during plea-taking, the  bond  applications, rulings, pre -trial and evidence of the first four ( 4) witnesses.

10. Mr Magolo still arguing on the effects of the missing proceedings,  stated that  additional five (5) witnesses and their statements, who  had not been available before, were available and testified as Pw1 to  Pw5. He urged the court to treat the evidence of these five witnesses  with suspicion.

11. Mr Magolo further submitted on how the trial magistrate surprised them  by moving the court to the Kenya Wildlife services premises where the ivory and appellant and his co- accused persons were displayed to the press as the judgment is  pronounced. He  stated that such  scenario did not  guarantee the appellant any justice.

12. Finally, Mr Magolo submitted against a  re-trial being ordered in the  event the court found some evidence because the appellant  who was  denied release on bond, and having  been in custody since 2014.

13. Mr  Taib , also counsel for the appellant, in submitting on the missing  record stated that  it was because;

(a) the record and its contents were relied upon by the trial  magistrate  to secure the  conviction of the appellant.

(b) the said record would have  confirmed their  contention that  the  entire evidence and proceedings were premised on an illegality and in  contravention of the construction which is irredeemable and  incurable.

14. According to Mr Taib, the  appellant was a subject  of a rendition.  That he was kidnapped in Tanzania and illegally brought back to  Kenya. Also, that all the evidence that  was adduced against the  appellant  was illegally obtained, which is  inadmissible under  our  Constitution, particularly under Article 50 of the same.

15. Mr Taib  went on to submit  that why he refers to the arrest of the  appellant  in Tanzania as “being kidnapped”, it is because they failed,  refused or neglected to  produce him before a court there as required so that he is either charged with any offence they wish and  let him  have  his day in court to defend himself or open extradition.  proceedings against him based on any warrants that may have been  issued against him. That  instead, the  prosecution came up with a  hypothesis which the trial magistrate believed that the appellant ran  away from Kenya.

16. Mr. Taib  also contended that the grounds upon which the trial  magistrate relied on to return verdict of conviction against the  appellant were innocent acts that were incapable of having  any  “mensrea” or actes reus” of any crime read into them ( ref to pages J  76 lines  18-27 and J77 lines 1 to 8 of the record of appeal as referred  to at page 49 of the appellant’s written  submissions). For  a  conviction to be  sustained, a court has to link the appellant to the  crime he is alleged to have  committed. He submitted that Pw6, the  O.C.S testified  that he received a tip off on the existence of ivory at  Fuji Motors from an informer but he never gave evidence of the  identity  of the  owner of  the ivory and neither  did he mention the  appellant.

17. In submitting that  the prosecution failed  to  link the appellant to the crime he was convicted of, Mr Taib stated that there was no evidence  that ;

(a) the appellant was never seen loading any ivory on any vehicle;

(b) the appellant was seen driving any vehicle  loaded with ivory;

(c) the  appellant was a passenger in any vehicle  carrying the ivory;

(d) the appellant arrived at the premise in question with  any vehicle  containing any ivory

(e) the appellant was never seen off-loading any ivory from a vehicle to  the wooden premises where  they were found ;

(f) the appellant ever brought, or sold or dealt in  ivory with anybody.

18. Mr Taib  further submitted that the appellant was charged, convicted  and  sentenced  with an offence of  dealing with wildlife trophies in  respect to  endangered species and  yet no evidence was adduced to  confirm this as per the schedule to the  Act. That the expert witness  who was called  to testify admitted  that he  did not conduct any  scientific tests but only observed the trophies and  gave his  professional opinion.

19. Also  submitted  is that the prosecution failed  to provide evidence of  Wildlife trophies and  ivory on the site at the time of the alleged  discovery ( photographic), to call any of the members of public they alleged loaded the ivory onto their police lorry, or an  inventory  of  what was  recorded. He submitted that the reason for this was  because the evidence must have been prejudicial to their  case.

20. Mr. Taib submitted that the prosecution failed to call the two Indian  persons they found at the premises where the ivory was found and the security guards who were looking after the premises as witnesses.  That the  prosecution even produced a register of vehicles movement to the premises  but failed to call its maker.

21. On the other hand, Mr. Muteti, leading counsel for the respondent,  opposed  the appeal on both conviction and sentence by relying on  their written submissions dated 27. 12 2017 and filed on 29.12.2017,  together with the two bundles of authorities filed on 16.4.2018 and 17.4.2018 respectively.

22. On the issue of the missing record, Mr Muteti cited  decision of the  Supreme  Court  of Ghana in the case of KWAME NKURUMA VRS  REPUBLIC, that  an appellant is  not  entitled to an acquittal on the  basis  of  loss or destruction of records. And  that if there is such  allegation, “the  court hearing the appeal should inquire into the  veracity of the claim, the  magnitude  of the list  missing, or destroyed  record and  the relevance thereto the determination  of the appeal”. 23. He submitted that the material before court was sufficient to  determine  the appeal before it since all the evidence that  was taken  by the trial court has been captured in the record of appeal. He also  cited the case of JOSEPH MAINA KARIUKI VRS REPUBLIC  (2011)  eKLR on the last paragraph at page 4 and PIUS MUKAPE  MULEWA AND ANOTHER VRS. REPUBLIC e KLR at page 2  which held that  without evidence over the active participation of the  disappearance of the record, a magistrate should not be held at fault  and that loss of  a record cannot be a ground for  one to be acquitted  respectively.

24. On the  effect of an order for a trial to start de novo it was Mr  Muteti’s contention  is that  contrary to the submissions by the  appellant’s  counsel that this had everything to do with the  disappearance of the missing records, when a matter  starts de novo  the trial starts a fresh whose effect is to obliterate earlier proceedings  but the charge remains the same. He  cited the case of REPUBLIC VRS COMMISSIONER OF POLICE, EX-PARTE SIMON WILLIAM  MUREITHI e KLR 2013 at page  3 of the decision.

25. He reiterated that  the duty of the  first appellate court as being to re- evaluate the evidence and  make an independent  finding as to  whether the conviction is  supported by the evidence. He said that he believed that with the material before court, it could  undertake this  duty and  ably decide on whether  the conviction was safe.

26. In addressing the issue of perceived bias by the court as against the  appellant, Mr Muteti submitted that this is a matter, a party who feels  the court is biased against him or her, would raise before the trial  court so that it is dealt with  at that level. He stated that  this was not  raised by the appellant during his trial before the said court and not  moments  before the  delivery of judgment as it would amount to scuttling due  process.

27. On the issue of the judgment being delivered at the Kenya Wildlife  services premise, Mr Muteti  submitted that the record would show  that proceedings  had  previously  been conducted at the same venue,  by the same  court, with the same  counsel and parties, and yet no  objections were raised then.

28. In response  to the claim that the appellant was brought into the country illegally  and charged, Mr Muteti referred  the court to the evidence of Pw14 and Pw18 at pages 97 and 144 of the record of  appeal, who testified on the process they  employed in bringing him  into the country and which process is supported by the  decision in  the case of ATTORNEY GENERAL OF THE GOVERNMENT OF  ISRAEL VRS  AICHMAN, where the court  declined to quash trial  of a Nazi war  criminal on account of him having been  kidnapped and  brought to trial”.

29 He submitted that the appellant  was not  kidnapped and that the  law  was complied with. He summed up by stating that  if the appellant  was aggrieved  by the action of having been brought back to face trial,  he had an option to file for  damages for  violation of his Constitutional rights as was pronounced by the court of appeal  in  the case of JULIUS KAMAU MBUGUA VRS REPUBLIC, 2010.

30. Assisting  Mr Muteti , was Mr Wamotsa also  counsel for the state (Respondent). He submitted that  there was direct evidence of  possession of the  ivory by the appellant and the co-accused persons  which was adduced at the trial. He also submitted that  there was circumstantial evidence pointing at the appellant and the  co- accused as  perpetrators of the crime.

31. Mr  Wamotsa also  submitted  that the  evidence of Pw6 and  Pw9 was  corroborative  and  consistent  that the  ivory was received at the premises  of the 5^th accused person and that the 1^st accused person  was the manager of the said premises.

32. Further , Mr Wamotsa submitted that  Pw13, a phone analyst testified  that there were  numerous phone conversations between the 1^st  accused person, 2^nd accused person and the appellant which confirm  that the appellant was in Kenya between 4^th -5^th  June, 2014, so that  this  defence of  alibi could not stand. He also stated that the conduct  of the appellant of fleeing to Tanzania was quite telling.

33. Mr Wamotsa dismissed the defence by the appellants and his co- accused as  mere denials.

34. This court being the first appellant court, it is trite law that its duty is  to  look at the record of evidence that  was  adduced at the trial afresh, re-evaluate  and analyze the same while bearing in mind that  it did not have the advantage  of observing the  demeanor of the  witnesses.

35. I will set out the evidence that was tendered in court by the parties in  support of their respective cases in summery to enable this court  decipher the relevant issues.

THE EVIDENCE;

36. The prosecution called twenty (23) witnesses.

Pw1, ABDULAHALIM ABAS AHMED told the court that he owns  a canter which  he uses to transport goods. He testified that  in the  month of May, 2014, he received a call from the appellant, FEISAL, in  which he  told him  that  he needed to transport goods from Tudor  using his canter.  He said that he had some work but he told the  appellant that he would get him one. He then called one KASSIM  (herein referred to as Pw2) and asked him to get a canter for Feisal,  the  appellant so he could shift his things. That Kassim ( Pw2) got the  canter and pw1 sent him the appellants  phone so he  could call him  and sent the canter to Tudor.

36. PW 2 KASSIM HASSAN SHUGULI who introduced  himself as a  broker who also  works as  a loader, recalled that in  the month of  May,2014, he received a call from Abdul Halim ( Pw1) who told him  that there was a customer who needed to move house from Tudor to  Tudor. He then  asked  Pw1 to send him the customers number and he did Pw2 then called the customer  who told him that he was at  Sparki Estate Total Petrol station and that  they should meet there. He then called Ali ( herein referred to as Pw3) who  owns a motor  vehicle and he  told him that his vehicle was with the  driver and that  they should  meet at the  market. Pw2 went on to state that he met the  said  customer who he  identified as the appellant and on  showing  him the vehicle, the appellant told him that he wanted  a covered vehicle  for  transporting his goods. Pw2 identified the  vehicle as  registration No  KAT 629 S. Upon the appellant indicating that he  did not  like  the  canter they had brought, Pw2 called one Abdi who  he said had a covered vehicle. He then asked the appellant to give him  transport  for going to the  market and he gave him Ksh 300. He also said that the appellant was driving a  black  vehicle with Tanzanian registration numbers.

37. Pw3, ABED  AWADH, a transporter and he  told court that he received a  call  from KASSIM HASSAN ( PW2) informing that there  was someone who wanted to  move within Tudor. He called his driver SEIF AHMED and asked him to proceed and meet Pw2 at the market  so he could get instructions. That the driver called him after 20  minutes and told him that the customer had rejected  his vehicle  because it was open and he wanted  a covered one. He confirmed that his vehicle was registration No KAT 629 make Mazda.

38. PW 4, SEIF AHMED MOHAMED, a light transport driver told  court  that in the month of May, 2014, he received a call from his  boss, ALI ABED  (Pw3) who asked him to go and shift a customer  within  Tudor and then proceeded to  Nyali to  collect  garbage for off  loading at the market. That, he, Abdul and  Kassim proceeded to  Sparki at a  petrol station where a small vehicle came and  the person  in it  viewed their vehicle and told him he would have  preferred a covered  motor vehicle. He asked for transport charges and was given  Ksh 300/= by  a person he identified as the appellant in court. He  also identified the 1^st accused person as the person who was with the  appellant in the  small vehicle.

40. PW5, ABDULRAZAK OMAR ABDALLA introduced  himself as a  vegetable vendor  cum transporter. He  said he  owns motor vehicle  registration No. KAM 832 W, Mitsubishi  canter. He said  that CID  officers called and asked him to go where his vehicle was parked so he could  do some work for them at  T.S. office. He rushed there and  found 3 people  whereby one of them identified the others. These  people then asked him to go with them to urban and  on the way, they  told him to go to Urban CID office where he was asked if he knew  Feisal. He confirmed that he knew Feisal  and that he had been  introduced  to him by a broker called Kassim  (Pw2) in May, 2014.  He went onto  state that he had met Feisal, who he identified as 6^th accused person (herein referred to as the appellant) with the 1^st  accused person at a petrol station where they came in a black Vitz.  Pw5 exchanged telephone  numbers  with the appellant who he said  he knew  very well as they had been meeting at the mosque  next to  GPO where they  pray. They agreed and the appellant hired his  vehicle for a day at Ksh 4,000/=. That  the appellant called him the  following day and they met. The appellant gave him Ksh 8000/=. He  then told him that the vehicle was  okay and  it was at a go down and  would return it the following day. Pw5 said that they agreed that the  appellant uses the vehicle and return  it when he was through with  the work he was doing. The  appellant called him after three days and  asked him  to go and collect the vehicle  at the petrol station  at  Sparki. When he got there, he found  no one in the vehicle and he  called the appellant who in turn called  one Kaka . That Kaka  emerged, opened the vehicle and on  checking Pw5, confirmed it was  ok. He drove off  and did not see the appellant after this, until he read  in the papers that  he had escaped to Tanzania. He said that he never owned up  to the police because he was not  sure that they used his  vehicle to transport the  tusks. He  also said  that he did not  hide the  vehicle  or change its  registration number.

41. At the time of the offences the appellant  and the co-accused  persons  are charged with are  alleged to have been committed, PW 6, No  232106 CIP  PETER MBUA was the O.C.S at Makupa police  station. He  told the court that on  4^th June, 2014, he was at the  station when he was informed on a tip off that there was  ivory hidden  at some premises somewhere at Tudor. He  mobilized the officers  who were under his command  such as Corporal KOSGEY and Corporal AGGREY WAKOLI and the  team proceeded to the  place  where they  had been told the ivory was hidden. He said that the scene  was a yard  of Fuji Motors East Africa Ltd and they found the gates to  the premise locked. He also said that  the watchman told them that he  must get permission  to open the gate and went to call his bosses. The watchman took about two hours to open the  gate but he did so after  having several  calls. Pw6 said that he sought  reinforcement  from the Administration  police and  sent  corporal  Aggrey Wakoli to alert the  KWS personnel to assist them with  sniffer dogs and taken part in the operations. And after they  gained entry into the premises . Pw6 said  they found two minors of Asian origin whom he concluded knew  nothing about  the ivory. He  asked them where the boss was and was  told he was not  around . They then went  to a  wooden store and  demanded  to see the manager. Pw6 said that the said manager, who  was  identified as the 1^st accused  person came there  at about 10.00  am and he  introduced  himself as the manager, ABDUL HALIM  SADIK. He then asked him to  open the  wooden store where they suspected  the  ivory was kept but he told him that he had left the key in the  house. Pw6, who said  he knew what he  wanted broke the  store and  recovered  the  elephant tusks that were hidden and in  manila sacks which were 72  in  number and  covered  with red  canvass. He then  ordered the manager to be arrested and they  requested members of  public to help them load the  tusks into the AP  service lorry which  had joined them since the ivory was heavy. Pw6  said that they took the tusks  to Makupa police station where identification and  markings were done. Pw6 handed over the  investigations  to KWS,  CID personnel and the scenes of crime  personnel who  photographed the ivory.

42. PW 7, CORPORAL JOEL KOSGEY ,was also  attached to Makupa  police station and he testified  that he accompanied  the OCS,( Pw6)  to the scene of crime where  they broke into a wooden  store,  entered  and  recovered the ivory. He said  that they saw a consignment covered by  a red turbine and on  opening it, he saw tusks in manilla sacks. In cross examination, Pw7 said that while at the scene of crime, he heard the OCS ( Pw6) asking the 2^nd  accused person to open the  store and that the  2^nd accused person told him that he was trying  to  contact the manager. He, therefore, exonerated the 1^st accused  person from the claim that he had  introduced himself a the manager.

43. PW8,NO 7406 – AW ( II) ASSSISTANT WARDEN III, ADEN  ABASI JULLE, the officer in charge of investigations in Mombasa  Marine Park told court that he was called by the area  Director and  informed  that  a consignment of ivory had been recovered and was at Makupa Police Station. And in the company of CORPORAL  KADENGE and RANGER  KHALIF NASSIR, proceeded to the said  station upon being instructed to do so. He was met by the OCS (Pw6)  at Makupa police station and he saw the consignment of ivory which  was displayed Pw6then had then led them to the  scene of crime a  Fuji Motors in Tudor  where he was shown  the wooden structure from where the  consignment was said to have  been recovered. He  was also  informed that  two suspects namely  Abdul Halim said  and Ghalib Sandik had  been arrested. They went back to the station  where  together with a team from the CID, LINGO and MARTIN ,  started counting and  labelling  the consignment. They found they  were 314 pieces and marked them A1-  A 314 with a red pen. They also  categorized them into whole and  cut pieces and separated them from  new numbers starting with alphabet B for the small pieces. They  weighed the identified their types and explained  the process of  charge of  ownership.

44 PW9, NO. 47447 CORPORAL AGGREY WAKOLI also attached  to Makupa police station, he told court that he was on SPIU patrol when the O.C.S called him. He  explained that SPIU team  works under cover. He also said that he was in charge of P. C. JUMA and  P.C.GITAU and they returned to  the police station  where they  joined the  O.C.S CORPORAL  KOSKEI and  driver. They were brief on the information  the O.C.S led received and they accompanied him  to the  scene of crime in  Tudor opposite  St Augustine school. His evidence was that the  watchman refused to  open for them saying he  had  been given instructions not to open. The OCS left and returned  in uniform. That he also called for  reinforcement  from the  Administration police led by IP  GABBOW. Pw 9 went on to state that  eventually they managed to enter the compound  and  the O.C.S, who appeared to have information  where the said tusks  went  straight to  a timber house which was  locked. There they found two young  men  praying and  a watchman. Pw6 then asked  them to  open the door  and they told him that there was a manager  who they called  Pw9  said the manager came but  when asked to  open the house, he  said  that he  wanted to  talk to the O.C.S, ( Pw6) on the side. Pw9  identified the 1^st accused person as this manager who he  said he had  no keys. They  broke into the store  which  had two  rooms. They  found the  tusks wrapped in polythene  bags and  covered with a red  canvas. He said that  there was also a male African who was sleeping  and introduced himself as a cleaner . He  finally said that the 2^nd accused person  was arrested on the  instructions of the CCIO. In  re-  examination, PW9 concluded that to date the bosses remain at large.

45 PW 10, JOSEPH THUITA KITUE, introduced  himself as an  employee of the National Transport  and Safety Authority ( NTSA)  and seconded to KRA. His evidence was limited to identifying  the  vehicles to the respective  ownership. He said HUSEIN had ¼ share,  NAHID ZAHAF GEOFFREY had ¼ share and  entiy No 2 confirm Dr.  BULITS HASSAN has ½  the  divided there being  transferred to  both ALI and NAHID. This showed that the  second accused was the lessee for a period of 5 years  3 months on  810-820.

46. PW11, SILA MUZUNGU KITOLE, a Registrar of persons said that he takes finger prints and issues ID cards. He testified  that he received  a request on 6.6.2014 from the D.C.I.O Mombasa,  requesting that the  identifies the  details of ID No. 08524707  belonging to the appellant  and the results were  positive.

47. PW12,HASHIM GOT SAT, a land Registrar  at Mombasa told  court  that on 25.6.2014, he  received a letter under No  ….CID  EC/4/4/7/VOL.XI B 121 dated 9.6.2014 requesting  for verification of property title  number Mombasa BLOCK XI/8/12/8200( original No  810) and provide details of the owners and then place a caveat on the  title during the  pendacy of this case. He said he confirmed ownership of the titles  and identified  certified copies of the green  card. He stated that out of the subdivision, there was 812-820  whereby 812 is a subdivision  of 810 opened on 9.9.1993 as entry  No. He also confirmed that Dr. BILKIS HASSAN had  1.2  undivided  title, ALI SRAF consignment and  found it was 2152.45 kgs.

48. PW 13, NO 233328 CIP JAPHET GEKONGE ARUMIA , a  CID  officer seconded to KRA, and formerly worked  with the Interpol narrated how the appellant was arrested and  brought back  to Kenya by Zanzibar police.

49. PW14, NO 6347 CAC JOSEPH KWECE of CID Pangani  in  Nairobi told court that he was  previously attached to CID, Urban and  that on 29.12.2014, he and two others were  dispatched by S.P  THANGALANI  NDUMBA  to collect the appellant from Lunga lunga  from Tanzanian authorities. He explained  that the appellant was  wanted by the Kenyan authorities in connection with government  trophies that had been recovered from Tudor. They proceeded to  Lunga lunga and on arrival the appellant was handed over to them by  the two Interpol  officers who had  arrested him, for questioning by  the Provincial CID Headquarters in Mombasa.

50. PW 15, PETERSON WACHIRA of the Registrar of companies  in  Nairobi testified  and gave  details of  ownership of  FUJI MOTORS E. A LTD as follows;

1. GHALIB KARA – ( Accused 2)

2. NOOR MOHAMED

3. ABDULMAJEED IBRAHIM

All Kenyan nationalities of P.O.  Box 81794- 800200, with 5000 total  share  registered on  Plot No. 812/XI of tom Mboya, Mombasa.

51. PW 16 NO 232493CIP MOMO SHAMALLA, a liason officer at  Safricom stated that her duties include  servicing request from  the  police or security agencies or  for judicial proceedings. The request  include seeking call data records and  M-pesa statements.

She confirmed that on the  24.6.2014 she received a request from the  D.C.IO. Mombasa (Exhibit P11) for dates in respect of the following  numbers

0722(Particulars Withheld)

0725(Particulars Withheld)

0724(Particulars Withheld)

0722(Particulars Withheld)

For  communication between 1^st May, 2014 to 24June, 2014.

Further  subscribe  details were;

1. 0722(Particulars Withheld)

2. 0722(Particulars Withheld)

3. 0727(Particulars Withheld)

4. 0723(Particulars Withheld)

5. 0723(Particulars Withheld)

6. 0724(Particulars Withheld)

She  said she extracted call records of the  said numbers and provide  the names registered und eth numbers  she however, when cross  examined said that she was not asked to analyze communication  among the numbers.

52. PW 17, DAVID KIBOI, a data records analyst explained to court  that  his  work entails criminal intelligence analysis  with  specialization of  call data evidence .He stated that he was given  call  data of a number 0722(Particulars Withheld) registered in the name of Feisal  Mohamed  of ID /No. (Particulars Withheld), the appellant herein. He said the inner No. is (Particulars Withheld). He also said that he was  requested to analyze these record on  this  number between 29.5.2014 and  5.6.20114. He was to establish whether there had been  communication between the No. 750 and other  6 numbers being  0725(Particulars Withheld), 0724(Particulars Withheld), 0723(Particulars Withheld),0722(Particulars Withheld),0722(Particulars Withheld),  0727(Particulars Withheld). His findings against the  central  No. for Feisal came up  with a chart  showing the  links between the  above mentioned  numbers.

And  when cross examined Pw17 admitted that his data was  incomplete as it did not have the content of the transcript of the conversation.

53. PW18, CHARLES OMOLLO OURE, a Chief Immigration officer based at Lunga Lunga Border Control gave evidence that on 24.12.2014  at 11.00am he was on duty when he received the appellant, Mohamed  who had a  prohibits immigration  notice having arrived from Tanzaina  underarmed escort by three Interpol officers namely Japheth  Gekonga  and Andrew, from Nairobi and Joel from Dar es salaam. He said that the  notice had been issued by Tanga immigration office in  Dar-es salaam on 24.12.2014 and he received and stamped it. He said  that the appellant was released after they had  entered his  details in  the system and escorted to Mombasa. He said that the appellant was deported from Tanzania but the reasons for his deportation were not stated.

54. PW19 NO 231371 MR JOHN MUINDE, a Forensic Document examiner  told court that he  received a signature  specimen from the  DCI, Mombasa on 20.7.2015 with a request that he determines the author . It was a gate pass book containing a questioned (disputed)  signature which was pointed at by an arrow in red ink and a date  indicated as 31.5.2014, a column, on the same row for make/model  written Mitsubishi Canter with  chasis No  written KAM 197 F  and  for colour white. There was a column for colour indicated as white,  a column for name indicated as Feiesal and another for signature with  a signature  entered. He was also presented with  two  specimen documents  labelled Feisal Mohamed Ali signature specimen. These  documents were presented with  an exhibit Memo Form. Pw 19 was  requested to compare  the signature  in the  gate pass book which was  pointed with an arrow with the specimen signature  of Feisal  Mohamed Ali to  ascertain whether they had been made by the same  person. He under took a forensic  analysis and examination of the disputed signature and  specimen signatures and confirmed that the  entries in gate pass book had been made by the appellant. However, he admitted that he did not have known fresh signatures of the  appellant.

55. PW 20, NO 83004 P.C ANTONY KINYANJUI, gazatted scenes of  crime officer No. 217/11/01/2013 gave evidence to confirm the photographs that were taken of the scene of crime and the exhibits at  Makupa  police station. He further certified that the trophies were  tusks from the elephant. He also told the  court  that the canter which  was parked was empty.

56. PW21, NO 65596 P.C TOM JUMA  from CID, Mombasa told court  that  on  4.6.2014, he and his colleagues were briefed by the OCS,  Makupa police station ( Pw6) that there was a consignment of ivory at  Tudor  and they proceeded to the venue. Their entry to the venue was  delayed by the watchman they found there for want of instructions  from the employers. Pw21 said that after an hour they called for  reinforcement from the Administration police  who came and they all  gained entry in to the premises, where they found  two more people, being minors of Asian origin who could not tell them whether they were  minors  or  not. They went to the place where they had been tipped the  tusks were kept and demanded that the store be opened but the  watchman and two people told them that the key was with the  manager. The manager was called but when they demanded he  opens  the door to the said store, he said he had no  keys for they were with  the  owner of the premises  one Mr Ghalib. The said Ghalib, (herein  referred to as the 2^nd accused person) came but  he also said he had no keys to the store. They then decided to break into the store and there  they  found pieces of ivory in Manilla bags and  covered with canvas.  They  arrested the manager (  the 1^st accused person) who Pw21 booked  in the OB.

57. PW 22, OGETO MWEBI, a research scientist with the National  Museums, Kenya  told court that he is specialized in animal skeletons.  He said that on 4.8.2014, he was brought exhibits memos requesting that he  travels  to Mombasa to examine  suspected animal trophies to  establish which animal they belonged to. He did so and at the marine  park, he examined the exhibits and confirmed that they belonged to  elephant. He compiled a report dated 18.8.2014. He also noted that  the said trophies were found to have come from 106 different individuals.

58. PW23, NO 68373, SERGEANT JACKSON GUYO of Fraud  investigations Unit at CID Headquarters is the investigating officer who was requested by DCIO, SP NYARA to take the case of wildlife  trophies which  had been  recovered from Fuji motors from Makupa police station on 5.6.2014, he  and another proceeded to Makupa police  station where they met the OCS (Pw6), a contingent of police officers  and KWS personnel among them ADAM JELLE. They were shown the  recovered wild life trophies which were elephant tusks, 72 manilla  sacks , a red canvas and rubber  bands; which were displayed at the  said police station.

59. He commenced investigations  whereby the OCS,  (Pw6), led them  to the scene of crime at Fuji Motors Ltd in Tudor, where  the  trophies were alleged to have  been recovered from the premises  belonging to the  5^th accused person. He was taken round and was  shown a  wooden store  and one room with spare parts. He also saw  sacks which resembled the ones on  display at Makupa police station  but were  empty. They took possession of them and then proceeded to  KWS. He was informed by (PW6 (OCS) that he had arrested two  suspects in  connection with the  recovery, being the 1^st accused Abdul Ali Sadik Omar and the 2^nd accused  person, Ghalib Kara.  Pw  23 then called for the scenes of crime personnel who came and photographed the scene. They counted the recovered tusks and found  they were 314 in number, with 198 complete and 116 cut into  pieces.  After the labelling  cut pieces as B1 and found them to be 116, they weighed the whole consignment  and found it to weight  approximately  2152 keys. They then prepared an inventory which the  officers from  KWS signed but the arrested suspects refused to sign it. They then  escorted the ivory  to the Marine Park where it was handed over  to  Sergeant Adan Jelle.

60. Pw 23 produced the recovered ivory as exhibit 1A and 1B, the sacks as  Exhibit  P2, the red canvas as Exhibit 3 and rubber bands as exhibit P4.

When the inventory was complete, they  picked the 2^nd  accused person,  a director of  Fuji Motors Ltd and proceeded to his premises for further  investigations. The 2^nd accused person handed over to them the VAT registration  dated 10.9.2009 ( Exhibit 41), a single Business permit  from the Municipal Council ( Exhibit 42) , dated 31.12.2013, a title deed  for Mombasa Block  11/8/( ORT 810) registered in the name of  Bilgus Atasen and 2 others dated 9.9.1993, Exhibit  43 (a) and Exhibit  P3, Exhibit 43 (c ) and Exhibit P3, sale agreement ( exhibit 44), Gate  pass ( Exhibit P19) and cash  payment ( Exhibit P46).

61. Pw 23 recorded the statement from the 1^st accused person while  Sergeant Nzuki did for 2^nd accused person. Pw23 said that he  conducted  further investigations to establish the  ownership of  motor  vehicle registration No KAM 197F and KAM 187 F and established they  belonged to Veterinary san Frontiers and Pauline Kimulu. He then tracked down the  number of  motor vehicle  registration No. KAM832  whom the appellant was said to have hired a vehicle from. That he gave  evidence as regards the two vehicles and admitted that motor vehicle KAM 832W which the appellant hired had no dispute and no entry was made at Fuji Motors E A  Ltd. Further, PW23 told the court that the  reason why the people in the premises were not  arrested is  because  the police had information  who the owner of the premises  and ivory  was. He also  admitted that data collected at  Safaricom did not contain  what was said between the parties.

62. The prosecution closed their case on 29.3.2016. The  parties, through  their counsel filed  written submissions which they highlighted on  7.4.2016.  The appellant and his  co-accused person were placed on  their defence. The 1^st and 6^th accused person opted to give unsworn  defence while  the 2^nd , 3^rd, 4^th and 5^th gave sworn evidence in their  defence.

63. The 1^st accused ABDUL HALIM SADIK testified as DW1 and in his  unsworn statement  told court that his role  was to  find a canter for the appellant and drove it to the  destination he was directed. He said that  the  appellant did not like  the first  canter he obtained  for him and so  another was found and it  belonged to Pw3. He went on to state that on  4.6.2014, he  received a phone call from Feisal, the appellant whereby  he instructed him  to  solve a problem for someone who had a  problem with  a  vehicle  on transit. He went to Fuji motors and found a contingent  of  police men who demanded for the key to the store. He  informed them that he had gone there to assist a person who had a  problem with a  vehicle on transit .He also informed court that he  offered to  lead the police to the  applicant’s  home but they refused.

64. The 2^nd  accused person, GHALIB  SADIQ KARA (Dw2), a Managing Director of Fuji Motors E .A Ltd told court  that he was an importer and  dealer  in motor vehicles; which business he had been running for 15  years. He testified  to court that he was the one who  authorized for the  gate to be  opened and later went to the said premises where he found  police men demanding that the gate be opened. He said  he found they  had already arrested the 1^st accused person. According to the 2^nd  accused person, there are 3 stores at the premises and the same are  exclusively used by the servants and  he had no control over them.  He  also  said that  he had never accessed the  stores because the servants  used  to sleep there. He further stated that he left the premises as the interrogations of the 1^st accused person, who he  had  never seen, was  going on. He then said it was not the company’s practice to inspect vehicles  that  went into the premises for  parking.

65. The 3^rd accused person PRAVENS NOOR MOHAMED, a Director  and Head of Sales at Fuji Motors E.A Ltd told court that he is related  to the  2^nd accused  person and that when the instant incident  happened, he was out of town. That he only learnt of the same after the  events at the  premises. He also confirmed to court that he did not know  the 1^st accused person.

66. The 4^th accused person, ABDUL MAJID told  the court that he is a  mechanic and also a Director  at Fuji Motors E A  Ltd. He testified  that on the fateful night on 4^th -5^th June, 2014 he was out of town and that  he never knew that there was  ivory on the said premises. He  obeyed  court  summons which  were  served upon him and appeared before  court.

67. The 6^th  accused, FEISAL MOHAMED ALI, who is the appellant herein,  also gave  sworn  evidence in his defence and told court that he  hails  from Lamu but stays in Mombasa. He also told court that he has an aunt in Dar es salaam whom he often visits. He even disclosed  that  in  the year 2010, he  stayed in  Dar es salaam , Tanzania for five (5)  months. He then denied having been in possession of any ivory. He  admitted that he knew the  1^st accused person who is his cousin and at  times worked for him on commission. The appellant  denied that he  would be  able to drive a canter  and told  court that after he hired the  vehicle, he went to Lamu to bring his furniture. He went on to state  that after delivery of the same, he called the 1^st accused person to return  the vehicle to the  owner. He also testified to court  that  he was told by  the 2^nd accused person that there were  police men in the  premises who  were claiming that a  Toyota Premio  had been stolen and that he  sends  someone with the log book. That this is when he sent the 1^st accused  person with the bill of lading. The appellant denied that he drove the  canter  in question and also disowned the signature in the  entery book terming it as  perjury by a person who wanted to fix him. He told the  court that he  was arrested in  Dar es salaam on the  22^nd December,  2014 by the  Interpol.

68. In  convicting the appellant , the trial magistrate had this to say;

“The case presented by the prosecution against accused 6 as very complex. The court linked the evidence against the accused person to a jigsaw puzzle with scattered pieces of different shapes  of  puzzles. These pieces have already been analyzed under  paragraph as above. He analysis lead to the following conclusion;

(a) accused 6 hired a canter;

(b) He engaged accused 1 to drive it to total Petrol Station;

(c) he took  control of the said canter from Total petrol station;

(d) He parked a Mitsubish canter KAM 197 F at Fuji Motors  between 30^th May, 2014 to 3^rd June, 2014;

(e) On 3^rd of June 2014, he re engaged accused 1 to go to  total petrol station and hand over the canter to the  owner;

(f) It was established that the registration number of the said canter (KAM 197 F ) was fake;

(g) The  document examiner  confirmed the signature on  the register  ( Exhibit P19) to be  that of  accused 6;

(h) On 4^th June, 2014 the police recover  ivory from Fuji Motors

(Accused 1 is arrested on the night of 4^th/5^th June, 2014;

(j) Frantic and unexplained calls are made by accused 1 and Pw21 respectively to accused 6’

( k) accused 2 is arrested  on the morning of June 2014;

(l) Accused 6 sneaks  (eraporagtes ) from Kenya

(m) accused  6 is arrest in Dar es salaam after  6  months by the Interpol

 I have considered  the prosecution  evidence and it is manifestly clear that a combination of the chain of events narrated above, when considered as a whole, point irresistibly at the accused person, as the owner of the ivory that was recovered at Fuji Motors. I am  satisfied that the prosecution has adduced all circumstantial evidence available in support of its case against  the accused person”.

69. I have carefully considered the evidence that was adduced before the  trial court and  the judgment of the court in line with  the grounds of  appeal and the arguments made thereon by the counsel in their  submissions. I have  also considered the  provisions of the law and cited  authorities  by all counsel.

70. I note that the issues for determination are;

(a) whether  the prosecution  adduced sufficient evidence to support the offence  the appellant as convicted  and  sentenced  for to the extent that it discharged its burden of proof beyond reasonable doubt as required by law;

(b) whether  the trial magistrate  relied on extraneous evidence to  arrive at her decision;

(c) whether  the issue of missing or destroyed  earlier  records of the proceedings  erred the court’s integrity;

(d) whether  the sentence imposed against the  appellant was illegal.

(e) whether the trial magistrate condoned the violation  of the appellant’s  constitutional  rights

71. With regard to the first issue, I find  that the  law establishing the offence the appellant was convicted and sentenced for  is set out under the  Wildlife conservation and  management Act, 2013. At section 92 of the said Act, It states;

offences  relating to  endangered species and threatened species.

“Any person who commits an offence in respect  of an endangered or threatened  species or in respect of any trophy of that  endangered  or threatened species shall  be liable  upon conviction to a fine of not less than twenty million or imprisonment  for life or  to both such fine and imprisonment”

Section 95 of the Act states as follows;

Offences relating to trophies and trophy dealing.

“Any person who keeps or is found in possession of wildlife trophy or manufactures any item from a  trophy without a permit issued under this Act or  exempted in accordance with any other provision of this Act, commits an offence and shall be  liable  upon conviction to a fine of not less than one million  shillings or imprisonment for a term of not less than  five years or to both such imprisonment and fine.

Section 84 under part X of the Act as read with the Eight schedule  states as follows;

“dealings in trophies

(I) No person shall operate as a trophy dealer without a licence  issued by the  service.

(2) The  Cabinet secretary may grant a trophy dealer’s licence in accordance with the provision set out in the eighth schedule”

The eighth schedule provides a follows

“ wildlife categories in relation to offences and  penalties  in sport and re creational  hunting.

Category A

Critically endangered mammals as set out in the 6^th schedule white  Rhinoceros, Black Rhinoceros, Africa Elephant

Category B

All other endangered and vulnerable mammals as set out in the 6^th  schedule. All birds listed in 5^th schedule. All reptiles listed in 5^th  schedule.

Category C

All other mammals, all other bird and sea shells. The laws here has  generally covered all living things with blood and extended to the sea  shells.

72. The  prosecution called a total of twenty three (23) witnesses to prove  their case.

The two counts  that the appellant and his co-accused persons were  charged with were grounded on sections 92 and 95 of the Wildlife conservation and management Act, 2013. The prosecution was intended to establish the offence of being in possession of trophy  under section 95 and dealing in trophy under section 92 of the said Act.

The appellant as convicted for the offence of being in possession of  wildlife trophies contrary to section 95 of the Wildlife conservation and Management Act. The main issue in this instant case which the  prosecution was  required to prove was “possession”, that  is whether  the appellant was found in possession of wildlife trophies of an  endangered  species…”

73. Pw 6, one of the arresting officers told court that he received a tip-off  that ivory was hidden at the premises of Fuji Motors Ltd belonging to  the 5^th accused person. He  mobilized a  team from different security  agencies and went to the scene of the alleged crime. He took charge of  the same and they recovered trophies hidden in manila bags covered  by canvas in a store built on the said premises  owned by the 5^th accused  person.

74. The 1^st accused person was arrested when he came to the said  premises upon being called on allegations that he was the manager of the said  premises and hence  suspected to be the  in charge of the same and the  store.

75. The 5^th accused person also came to the scene upon being called since  he was the manager and Director of the said Fuji Motors E.A Ltd. He  stated that he did not have control of the stores as the same were used  being their workers who used to sleep there.

76. It was Pw6’s evidence that when they gained entry into the premises,  they found two minors and a guard in the premise whom he did not arrest as he was convicted that they knew nothing about the store and the presence  of the trophy in the premises.

77. The prosecution also lined up the evidence of Pw1 who the appellant contracted with a view to hiring a canter which did not materialize.  There was also the evidence of Pw2 who was said to be a broker  and  whom Pw1 sent to Pw3, who then hired  out his vehicle to the appellant.  These was then the evidence of Pw4, who was Pw3’s driver and is  alleged to  have met the appellant  and left him with the  motor vehicle registration  No KAM 832W.

78. In bringing up the evidence by these witnesses, the prosecution intended to support the transportation in this case so as to connect or  link the appellant to the premises and store where the ivory was  recovered.

There was further evidence of  the Registrar of persons, the Registrar of Lands and  the Registrar of  Motor  vehicles. The  sum total of their  evidence  was that it was hoped that the  same  would link the  appellant  to the  offence  of having been found in possession of the  alleged ivory  or connected him to its storage at Fuji Motors Ltd.

79. PW 10, presented  evidence of ownership and confirmed that  motor vehicles  registration No KAM 197 F and KAM 187 F belonged to two  different persons and that they were not  Canters in make. In fact,  going one  more mile required that the  owners of these two motor  vehicles  ought  to have been  investigated and  or  interrogated so as to  be either treated  as suspects or  witnesses  and assist the court  in  arriving at the truth in this case.

Pw23, simply adduced his  testimony by stating that one vehicle  which  was entered as a  canter was fake and that the offence was committed as the  appellant. He did not substantiate this or adduce evidence to  explant his connection.

80. The Registrar of companies (Pw15) presented his evidence and named  the registered owners of the  premises as Ghulab Kara, Noor Mohamed  and  Abdala Masjid Ibrahim. The appellant’s name was not  one of these listed  as the Director of Fuji Motors E. A Ltd.

81. There was then the evidence of Pw17, DAVID KIBOI who presented a  Matrix of communication which the appellant had with his various contacts. This data did give the names of those contacted by the  appellant but failed to give the contents of communication. The officer  ought to have gone further and availed transcript  to confirm the nature  of communication between the appellant and his contacts, instead  of leaving  the court wondering what they  could have  been discussing  and how it related to the case in question.

82 Under chapter  II of the Penal Code which deals with  interpretation of  the terms used therein, possessions defined as;

(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”.

83 This  definition is reflected in h approach by Lord Hope in the House of Lords when defining “possession” in LAMBERT ( 2002) 2  AC 545  stated that;

“there are two elements to possession. There is the physical element , and there  is the mental element”………..

The physical element involves proof that the thing is in the custody of the defendant or subject to his  control……….”

In the same  case Lord Clyde stated;

“The second element involves  that the defendant  knows that the thing in question is under his control. He need not know what its nature is, but so long as he knows that the thing, whatever it is, is under his  control, it is in his possession”.

84 From the evidence  that  was adduced by the prosecution  witnesses, I  find  none testified  that the appellant (a) was found with the alleged  Wildlife trophies at anytime or (b) was seen or found ferrying the said  Wildlife trophies either into or out of Fuji Motors premises  or  anywhere else; or (c ) was seen loading the wildlife trophies on any  vehicle.

Clearly, there was no evidence that  he was found at the said  premises  at any time before, during or after the recovery of the alleged ivory.  There was no evidence that the premises and or store where  the ivory  was recovered belonged to him. There was no evidence that the  vehicles mentioned by the witnesses belonged to him. There was no  evidence of what his position was at Fuji Motors Ltd or relationship he  had with Fuji MotorsLtd and or the owners/Directors.

85 From  this analysis, I find that  none of  the  prosecution witnesses  was  able to demonstrate and prove that the appellant had  physical  control and knowledge of the alleged ivory recovered  in a store at Fuji  Motors Ltd.

86. In going through the judgment, I find that the court rendered itself in  the most dramatic manner  when it  termed the evidence that had  been adduced before  it as a jigsaw puzzle and flowers strawn all over  in the field. She made the following observations of the prosecution’s  conduct at page 60 of the judgment.

“This  is the very difficult, the court went through in  piecing together the evidence adduced in court. The investigating officer ( IO) simply scattered flowers  (evidence ) in the bush and left it to the court  to collect the  nectar in order to make  honey( Judgment )  without his  involvement. The court came up with what I would refer to as puzzles”

87. It is my finding that  a court either has evidence before  it or not does  not.

My understanding is that after the court  heard the witnesses in the  case, it was left with very  many  unanswered questions. And contrary  is expected of a court in and adversarial system, it  acted as it would if  it were  in and  inquisitorial system where it would go out and fish  for  evidence to assist the prosecution. 

At page  76 of the judgment,  the court singled  out the appellant and  stated as follows;

“ The case  presented by  the prosecution against  the  accused 6 was very complex. The court likened  the evidence to a jig -saw puzzle with scattered pieces of with different shapes of puzzles strewn is all over. The puzzles must be fitted together in order to complete  the jigsaw puzzle……”

88. From the above observation the learned magistrate then  numbered  the pieces of evidence from(a) to (h) and concluded that;

“ I have  considered the prosecution’s evidence and it is manifestly clear that a combination of  the chain of events narrated above, when considered as a whole points  irresistibility  at the accused person ,as the  owner of the ivory that was recovered from Fuji  Motors. I am therefore satisfied that the prosecution has adduced all circumstantial evidence  available in support of its  case against the accused person.”

I do not think so. For example, the decision that motor vehicle  registration No KAM 197 F and KAM 187 F was rendered solely by  PW23 when he failed to call the registered owners of these vehicles to  shed a light on whether any of those vehicles actually physically exist or were hired or used by the appellant at that time. When cross  examined on this, Pw 23 casually declined that this  was not necessary.  The  trial court  even admitted that the investigating officer did not  assist in putting evidence together, hence took upon itself the job of piecing up evidence for the  prosecution so as to arrive at the decision  she did.

89. It is  in evidence  by Pw2,Pw3 and Pw4 that the appellant  hired  motor  vehicle  registration  No. KAM 832 W which was returned  to the owner,  Pw3 who  confirmed the same.

90. In analyzing  the evidence that was adduced, I noted that there  were a  lot of loose ends and  glaring gaps which were left in the prosecution’s  evidence hence  creating doubts.

For instance, the failure by the  prosecution to call the watchman, and the two  Asians who were  found in the premises  where the ivory was  recovered, and the  cleaner who was also  found there. All this left a  lose  end in their evidence that it is difficult to ascertain the truth about  the  ownership of the  store where the  ivory was recovered and  who kept  the said ivory there.

The failure to avail the content of the transcript from the mobile  provider was critical as it would have ascertained  what  was said  between the appellant and those  he is alleged to have called during  that  period.

There was also the issue of the specimen signatures having been examined without a fresh signature and known signature of the  appellant being collected so as to make the finding credible.

91. It was the contention of the Respondent  that the appellant conviction  and subsequent sentence was founded on the circumstantial evidence.  The law with regard to circumstantial evidence was stated in the case  of REPUBLIC VERSUS KIPKERIWA ARAP KOSKEI ( 1945) 16  EACA 235 as follows;

1  “That  in order to justify on circumstantial  evidence, the  inference of guilt, the inculpatory facts must be incompatible  with the innocence of the accused, and incapable  of explanation upon  any other hypothesis than that of his guilt, and the  burden of  proving facts which justify the drawing of the inference  from the facts to  the exclusion of any other hypothesis of innocence is always on the prosecution and never shifts to the accused”.

This position has been restated by the High courts and the courts of  appeal  from time to time.

In the  cases of SAWE VRS REPUBLIC ( 2003) KLR 306 and  JACOB MUTHEE & 8 OTHERS  ( 2013) e KLR, this position was restated  and another factor  added in the  un reported case of SIMON  MUSOKE VRS  REPUBLIC  Court of Appeal No 188 of 1956, that ;

“At the same time there must not be any co- existing facts in or circumstance which may weaken or destroy that inference of guilty of  the accused person”.

This  is in line with  the provisions of sections 107 (1)  107 (2), 108, and  109, all of the evidence Act, Cap 80, Laws of  Kenya, which deal with  the burden and standard of proof.

92. On the issue of relying on extraneous evidence to arrive  at its decision,  this clearly came out when the “puzzles” were drawn and  analysed by  the court  so as to  arrive at a decision . In analyzing these puzzles the  trial magistrate brought in evidence and or matters which had not been  adduced in evidence. Where witnesses were not called to testify, she  appeared to have become a  witness, (“mystery of  canters”and  “store  and the manager,”), where a specialist  was called but had failed to give conclusive evidence, the trial magistrate became the analyst or  specialist  ( for instance in the puzzle about telecommunication. Call  date records and call pattern analysis). Taking into account the  irrelevant and extraneous considerations , that  did not  form part  of  the evidence tendered before the trial court, I find the decision  by the  trial court amounted to miscarriage of justice. I find that the principles  of circumstantial evidence which the court relied  on in arriving at its  decision were clearly misconstrued.

What  I make of the trial court’s findings with regard to the  analysis of  the evidence that was adduced  before it, is that it is  based on  observations  or assumptions by it which I find speculative. It  is clear  proof that there were gaps which it tried to fill up for the  prosecution. The court forgot that it was an independent arbiter and what the  rules of evidence required a court to find where there are gaps  in evidence

93. In view  of what I have pointed out, I have come  to the conclusion that  the  prosecution failed to  discharge  its  burden of proof in the case  against  the appellant as required  by law and that there were  many  doubts which were raised by their evidence, the benefit of  which  should have been awarded  to the appellant.

I therefore find that the offence of being in possession of trophy of endangered species was not proved against the appellant, so that he  was wrongly convicted and sentenced for the offence of having been  found in possession of wildlife trophies (Ivory).

94 With regard to  the issue of the sentence which was  meted against the appellant being illegal, the relevant  provisions of the law in  this  regard are  sections 84, 92 and 95, all of the Wildlife  conservations and Management Act.

I find that the Honorable magistrate correctly quoted section 84 and  92 of wildlife conservation and management Act, 20113 in the  determining the case before her. I have also enacted the whole of  section 84 of the said Act, which in my opinion, I find that it explains  what is meant by “dealing in wildlife trophy without a licence”. I wish to state that the prosecution was silent on this matter. It did not lead  any evidence at all to prove that the appellant and or any of the co- accused person were involved in the illegal trade of trophy dealing.  There was no evidence of any ornaments having been  recovered  from  the scene  or the  manufacture of any such thing  found in progress  at  the alleged  scene of crime.

95. The  trial court’s understanding  of section 84 and 94 at pages 69 and  70 of the judgment is correct and I do not wish to disturb the same as I have explained in my judgment  the  understanding I arrived at from my own independent  analysis. (96). However, there is need to add  that section 95 creates the offences of  possession and prescribes the punishment, which is;

“ Any person who keeps  or is found in  possession of wildlife trophy or  manufactures any item from a trophy without a permit issued under this Act or  exempted the accordance with  any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than  one million shillings or  imprisonment  or a term of not less than five years  or to both such  imprisonment  and fine”.

In my understanding  of the draft’s  means language in this  provision,  what  section 92 has done is that it has set  the maximum punishment  that a court can impose upon  an offender  who is found guilty of the  offence therein  whereas section 95 has set the correct limit  of sentence  that can be meted upon  an  offender by a court which has convicted  him or her.

96. However, this position was obtaining before the enactment and or  promulgation of the Constitution of Kenya, 2010, where at Article 50  (2) (p) , it is  provided that;

“Every accused person has a right  to a fair trial, which includes at (p) to the benefit of the least severe of the  prescribed punishments for an offence, if the  prescribed punishment  for the offence has been  changed  between the  time that the offence  was  committed and the time of the sentencing”.

The less severe of the sentences  in this case, in my view, if the  appellant was guilty as the court had found, is the sentence under  section 95, which  has a fine of one million shillings and  a  minimum  of five  years in  prison as that is the least of the punishment available  in such cases.

97. I find that the ground (c) and (g) as framed by the court succeeds. The  sentence that was imposed by the trial court on 22.7.2016 was  unconstitutional, and therefore the same is  hereby set aside.  It will be noted that  the appellant  has been in custody since the commencement  of the trial  to  conviction. The trial took two years and he has been in  prison for 2 years since he was sentenced.  Had the court properly  applied the law in exercising its discretionary power on sentencing, the appellant would by now served the full prison term.

98. The other issue the court finds necessary to address is the issue of the  missing records of proceedings that were taken by another magistrate  who previously heard the case. This issue attracted vicious attacks in grounds  1 and 2 of the supplementary  submissions.

The allegations of  destruction of  the  court record was  blamed on the  court. I wish to point out that the custodian of the court records is the archives of each court, which has administrative offices who are  answerable to their superiors in each court  ending with  a Director that is attached to each court and  at the  apex the chief Registrar of the  High  court in Nairobi.

99. The record shows that parties agreed for the matter to start “de novo”  From the record I have observed a very smooth trial where all parties  testified and were cross examined. The missing record is not one which  was part of what has informed this court in reaching its  decision/verdict. I read through the entire record and formed the  opinion that has informed  my findings. After a judicial  officer,  that is  to say, Judge or magistrate of either court has dealt with a file, unless it is pending for a ruling  or judgment, and the same  disappears,  there is a chain or  system established to trace the same.

In the circumstance, I dismiss the said grounds.

100. In conclusion, I find that the appeal has merit and allowed the same.

I proceed to quash he conviction and set aside the sentence against the  appellant; who is hereby set at liberty forthwith unless he is lawfully  held.

Judgment read, signed and dated this 3^rd day of August, 2018.

LADY JUSTICE D. O. CHEPKWONY

3.8.2018

In the presence of;

Mr Jami Yamina, counsel for the Respondent

Mr Taib, counsel for the Appellant

Mr  Kurgat ,counsel for the  2^nd  to 5^th accused

Mr Jim Karani holding/watching brief for the wildlife series

Appellant

C/clerk- Beja