Murithi v Republic (Criminal Appeal 16 of 2021)  KEHC 16100 (KLR) (7 December 2022) (Judgment)
Neutral citation:  KEHC 16100 (KLR)
Republic of Kenya
Criminal Appeal 16 of 2021
RK Limo, J
December 7, 2022
George Njeru Murithi
(Being an Appeal against the Conviction and Sentence of being in Possession of Wildlife Trophies contrary to Section 95 of the Wildlife Conservation and Management Act of 2013 in Criminal Case No. 97 of 2017 at Kyuso Law Courts where a life imprisonment was imposed, Judgement was delivered on 30th November, 2017 by Hon. John Aringo, RM)
1.George Njeru Mutithi, the appellant herein was charged with two counts relating to dealing with wildlife trophies; -i.In Count 1 the charge was being in possession of wildlife trophy contrary Section 95 of the Wildlife Conservation and Management Act, 2013.The particulars of the offence were that on the 28th April, 2017 at around at Usueni Sub-Location in Tseikuru Sub-County within Kitui County, the appellant jointly with a co-accused namely Ibrahim Harun were found in possession of wildlife trophies namely (12) elephant tusks weighing 120 Kg valued at street value of Kshs. 12 million and ferrying them using a motor cycle Registration No. KMDU 905P make Captain Green in Color without a permit.ii.Count IIDealing with government trophies contrary to Section 84 (1) as read with Section 92 of the Wildlife Conservation and Management Act 2013.The Particulars in Count II were that on 28th April, 2017 at around 0500 hours at Usueni Sub-Location, Tseikuru Sub-County within Kitui County jointly with one Abdi Ibrahin Harun were found dealing with wildlife trophies namely 12 Elephant tusks weighing 120 Kilograms with street value of Kshs. 12 Million without a permit.
2.The appellant though pleaded guilty initially changed plea to both counts after facts were read but after trial, he was found guilty in the 1st count and sentenced to pay a fine of Kshs. 20,000,000 or in default serve life in prison.
3.The Prosecution’s Case was based on investigations carried out by wildlife personnel after a tip off from a member of the public.
4.Nicholas Munene (PW1), a Wildlife Ranger attached to Kenya Wildlife Service headquarters testified at the trial and told the trial court that he had been an investigator for 10 years and that on 27.04.2017, he got intelligence report from an informer from Usueni Market, Kitui County regarding 2 people who were in possession of elephant tusks and were looking for a potential buyer. Armed with the information, the witness stated that he notified his boss Mr. Aden Abbas who gave him a go ahead to plan for an operation in the area and upon which he enlisted support of a colleagues Christopher Odhiambo and David Aluoch. He testified that they headed to Usueni Market using Kenya Wildlife Service unmarked vehicle and that they met the informer on the road after Mwingi and together proceeded to Usueni Market. He stated that they communicated with the suspects who had tusks and that he posed as a buyer and on reaching a place near Usueni Market, they stopped and waited for the suspects. The witnesses testified that 2 suspects including the appellant approached and told him that they had 120 Kg of elephant tusks and that they negotiated and agreed at Kshs. 1,200,000 per Kg. Upon reaching the agreement, the witness told the trial court that the suspects left and came back with the elephants’ tusks using a motorbike adding that, the tusks were wrapped in two bundles. He testified that he loaded the tusks on the car after inspecting them and being satisfied that it was elephant tusk, he signaled his colleagues who had taken cover nearby who bounced and arrested the two suspects before taking them to Tseikuru Police Station. He testified that the tusks were 12 in number with one sack containing 8 pieces of tusks, while the other sack contained 4 pieces of tusks. He added that the tusks were tied with reed mats. The witness identified the tusks in court plus the motorbike used to ferry the them. He added that the appellant and his co-accused negotiated with him over the price of the elephant tusks.
5.Christopher Odhiambo (PW2) another Kenya Wildlife Service Ranger also testified and told the trial court that PW1 called and notified him about an operation within Usueni Market. He testified that on 27th April, 2017 they proceeded to the area from Nairobi and picked a fellow colleague David Oluoch at Mwingi to beef up strength and proceeded to Usueni, reaching there, at around 3 am the following day. He testified that PW1 had been in constant talk with an informer and that he went ahead of them as they alighted and waited for a signal at a place near Usueni Market.
6.He testified that they got a signal after a short while and quickly joined PW1 and arrested 2 suspects among them the appellant herein who was the rider of the motorbike used to ferry the tusks. He testified that upon search, they found 12 pieces of tusks wrapped in papyrus reed mats and put inside 2 sacks. He gave the Registration No. of the motorbike as KMDU 905P.
7.He added that he knew PW1 was posing as a buyer and though he was not present during negotiations he stepped in to arrest the appellant and his co-accused when it was confirmed that they were in possession of elephant tusks. He confirmed that one of the persons they arrested is the appellant herein.
8.David Oluoch (PW3) another ranger working for Kenya Wildlife Service in Mwingi at the time also testified at the trial court and corroborated the evidence of PW 1 and PW2.He testified that on 27th April, 2017 he got a call from PW1 who briefed him about an operation at Usueni Area and asked him to provide support and reinforcement. He testified that PW1 and PW2 arrived at Mwingi around 2330 hours and after a brief they left for Usueni Market adding that they were 4 in number, himself, Abbas, Munene and Christopher (PW2).
9.He testified that when they reached Usueni, PW1 left them behind and went ahead to negotiate with the suspects while posing as a buyer. He testified that after a short while, they got a signal from PW1 and they swung into action and arrested the appellant together with an accomplice and recovering 12 pieces of elephant tusks wrapped and put in 2 nylon sacks, a white and green sacks. He also stated that they recovered a knife which was used to cut the sisal ropes that had been used to tie the tusks wrapped in papyrus reeds. He added that they arrested the suspects and escorted them to Tseikuru Police Station.
10.CPL Sylvester Toroitich (PW4), the Investigation Officer in the case testified and told the trial court that on 28th April, 2017 at around 7:15 am Kenya Wildlife Service Rangers took 2 suspects with elephant tusks to Tseikuru Police Station. He testified that there were 12 pieces of elephant tusks with 4 being big and 8 being medium in size. He testified that he collected the elephant tusks and took them to National Museum in Nairobi for expert opinion on whether they were real elephant tusks. He tendered the exhibits memo as P Ex 20.
11.He also tendered the 12 tusks as P Ex 1 to 12, 2 sacks green and white as P Ex 14(a) and 14 (b), 3 papyrus reed mats as exhibit 15 (a) (b) and (c), motorcycle Registration No. KMDU 905 P Ex. 18, ignition key to the motor cycle P Ex 19, and 7 pieces of sisal ropes as Exhb. 17. He also informed the trial court that the elephant tusks were handed over to him by Kenya Wildlife Services officer posing as a buyer and had agreed with the suspects to purchase the 12 tusks at Kshs. 12,000,000.
12.Dr. Ogeto Mwebi (PW5) an expert witness summoned from Nairobi National Museum testified and gave the trial court the findings he made after receiving 12 elephant tusks. He gave a detailed report about the forensic analysis done and opined that, the tusks belonged to the elephants. He tendered the report he authored dated 9th June, 2017 as P Ex 21.
13.When placed on their defence, the appellant herein defended himself on oath that he was just a boda boda operator and confirmed that the motor cycle Registration No. KMDU 905 P was his. He denied the charge stating that, he was hired by his co-accused to take him to Kanungo and that he agreed to take him after agreeing on Kshs. 500 fare. According to him, his customer was stopped by some people in 2 vehicles parked by the road side. He testified that they were roughed up and bundled them into the Pajero motor vehicle and taken to Tsekuru Police Station. He testified that they were locked up until the following morning when he saw the Police Officers weighing some elephant tusks. He testified that he had not seen elephant tusks before and did not even know his pillion passenger with whom he was arrested with.
14.The appellant added that the people who arrested them did not testify in court and alleged that two other people arrested with them were later released. He insisted that when they were arrested the elephant tusks were not in the vehicle that took them to Tseikuru Police Station.
15.After trial, the trial court evaluated the evidence tendered and found that the prosecution’s case had been proved beyond doubt because the appellant was found in possession of wildlife trophies which were found to be elephant tusks. The appellant and his co- accused were convicted as such in Count I and sentenced to serve life imprisonment or pay a fine of 20 million.
16.The appellant felt aggrieved and filed this appeal raising the following grounds namely: -i.That the trial magistrate erred by failing to note that the evidence adduced were contradictory and violated Section 163 (e) of the Evidence Act.ii.That the sentence meted out was harsh and that the trial magistrate never considered that essential witnesses never turned up to testify to clear doubts.iii.That his defence was not considered.
17.In his written submissions, the appellant has raised fresh additional grounds without leave of this court under Section 350 (2) of the Criminal Procedure Code.He contends that he was arrested with 4 other suspects and faults the prosecution for not calling all the 5 people arrested or the arresting officers to shade light. He in particular takes issue by te failure by the Prosecution to call the 4th Ranger namely Mr. Abbas to testify during trial.
18.He claims that the witnesses who were not summoned could have assisted the trial court get a clear picture.
19.He also contends that the charge sheet was defective because it revealed two distinct offences under Section 84 and Section 92 of the Wildlife & Management Act. He argues that because he was acquitted in Count II, there was no basis to render a conviction in Count I.He has relied on the decision of Josiah Mutinda versus Republic. He submits that being charged under Section 84(1) as read with Section 92 prejudiced him.
20.He further submits that the prosecution did not prove its case against him. He contends that the rangers testified that he was arrested with an accomplice when the elephant tusks had already been loaded on the motor vehicle. He also contends that the photographs should have been taken at the scene of crime and not at the Police Station. He further submits that the officers who arrested them had hidden agenda by not photographing them with the elephant tusks at the scene of crime where they were arrested.
21.He contends that he was only identified by PW1 which according to him made it unsafe for the trial court to render a conviction based on identification by a single witness. He insists that he was not found in possession of the wildlife trophies.
22.He avers that the sentence meted out on him was harsh because Section 95 prescribes a sentence of not less than 1 million or imprisonment for 5 years.
23.The State through the Office of the Director of Public Prosecution has opposed this appeal on conviction. It concedes that the sentence made out was harsh though but has urged this court to uphold the conviction.
24.The Respondent has outlined the evidence tendered by all the Prosecution witnesses and submits that based on the evidence tendered, the appellant was found with possession of 12 elephant tusks which were proved to be wildlife trophies.
25.The State points out that the element of ‘‘possession’’ as defined under Section 4 of the Penal Code was proved through evidence and relies on the decision of Peter Mwangi Kariuki versus Republic  eKLR which defined the element of ‘‘being in possession’’ to be in physical control of something or item the person knew was prohibited.
26.The State submits that it is clear from evidence that the appellant and co-accused negotiated with PW1 over the price of 12 elephant tusks before delivering them to PW1 using a motor cycle Registration No. KMDU 905 P make green in colour.
27.The Respondent further submits that Section 3 of the Wildlife Conservation and Management Act, 2013 defines what constitutes wildlife trophy.The State points out that an expert witness Dr. Mwebi Ogeto (PW5) testified and confirmed that the tusks, were tusks of six elephants which was a confirmation that they were wildlife trophies.
28.The state further submits that the allegation made that they did not call crucial witnesses is baseless because a Kenya Wildlife Service Officer namely Abbas was not a crucial witness because his evidence would be a repeat of what PW1, PW2 and PW3 stated in their evidence.
29.On sentence, the State concedes that the trial court erred by sentencing the appellant under Section 92 of Wildlife Conversation and Management Act yet the charge sheet read Section 95 of Wildlife Conservation and Management Act 2013.
30.The Respondent has cited a decision in Mutisya Kiema versus Republic  where the court distinguished the said 2 provisions by holding that Section 92 is restricted to critically endangered species as specified under 6th Schedule while Section 95 deals with offences relating to elephant trophies generally. The court further found that Section 95 in her view presented a problematic legal challenge that required amendments because Section 95 provided a different sanction of not less than 1 million fine or 5 years in jail while Section 92 provides for 20 million or life imprisonment posing a challenge as to which sentence is to be meted when a person is charged under both Sections 92 and 95 of Wildlife Management and Conservation Act.
31.The State submits that the sentence meted out on the appellant be substituted with that provided under Section 95 adding that, the appellant should be jailed for more than 5 years because of aggravating factors which to it says includes the fact that poaching is a serious threat to elephant population and that protecting the elephants should be made a priority.The State further points out that the appellant showed no remorse and that the way the elephants were killed and tusks removed when they were not dead indicated that cruelty was visited upon the elephants.
32.This court has considered this appeal and the comprehensive response made by the State. This is one of the few appeals where the State through the Office of the Director of Public Prosecution has made great efforts in filing comprehensive response through comprehensive written submissions which I find commendable and should be replicated in all the appeals and/or matters presented in this court.
33.This is a first appeal and the duty of this court is to re-evaluate the evidence tendered at the trial court with a view to arriving at own conclusion while acknowledging that the trial court had the advantage of seeing the witnesses testify first hand and had the advantage of observing their demeanor as they gave their testimonies.
34.This appeal has raised the following issues namely: -a.Whether the charge sheet was defective and whether the sentence meted out was proper.b.Whether the Prosecution failed to avail crucial witnesses.c.Whether the Prosecution’s case was proved beyond reasonable doubt.
35.This court will begin the 2nd issue for determination before delving on the 3rd then the 1st issue in that order.
(a) Whether crucial Witnesses were not called
36.The appellant contends that crucial witnesses were not availed and has pointed out that there was a 4th Ranger named Abbas who was not called and that there were other 2 persons arrested with them that should have been summoned to shade light.
37.This court had perused through the proceedings and notes from the proceedings that there was a 4th Officer who was the Senior Officer whom PW1 stated he reported to and who gave a go ahead for the operation. Looking at the evidence tendered by PW1 PW2 & PW3 regarding the entire operation and the eventual arrest of the appellant and his co accused, I am persuaded by the Respondent’s contention that the evidence of the 4th Ranger would not have added much value to prosecution and it would have been merely repetitive given the fact that he did not play a different role in the operation that led to the arrest of the appellant. His role was a supportive one and I am not persuaded that the prosecution had anything to hide by not calling him because there is no evidence in that regard.
38.The other contention that there were other persons arrested and released by the Police in my view is neither here or there because there is no evidence indicating that more than 2 persons were arrested. If the appellant knew the other persons arrested with them, if at all he should have led evidence to that effect. He cannot raise a non-issue and take it up as a ground of appeal. Furthermore, the Prosecution is always at liberty to present evidence that is sufficient to prove their case. A trial court cannot compel them to call a certain number or a particular witness unless basis is laid out. I find none in this instance.
(b) Whether the Prosecution’s Case was proved beyond doubt
39.The appellant and his co-accused were charged in Count I with offence of being in possession of Wildlife Trophy contrary to Section 95 of Wildlife Conservation and Management Act 2013 (herein after to be referred to as WCMA for ease of reference).Section 3 of Worldlife Conservation Management Act defines wild trophy in 2 parts. It provides that Wildlife means;Trophy is defined as ‘‘any bone, claw, egg, feather, hair, hoof, tooth or tusk of an animal, and of any species of plant, any bark, branch……………..’’
40.The appellant contends that the prosecution relied on evidence of a single identifying witness but from the proceedings 3 witnesses were able to see the appellant and PW1 gave a vivid description of him and his accomplice. He stated that the appellant had a deformed eye while his accomplice was of Somali Origin. The trial court captured those qualities in respect of the appellant and his co-accused respectively because as I stated above, the trial court had the benefit of observing the witness testify including the appellant and this is why his appearance is well captured by the judgement of the trial court.
41.The appellant contends that nothing was found in his possession but the evidence tendered by PW1, PW2 and PW3 in my view indicates that he was found in possession of Wildlife Trophies to wit 12 pieces of elephant tusks. The defence put forward did not shake the credibility of the Prosecution’s Witnesses.
42.PW1 gave a vivid account on how he got intelligence report from an informer regarding some suspects who wanted to sell elephant tusks. The appellant faults the State for not revealing or calling the informer to testify but I find the contention unmerited and not supported by law. The investigative agencies in this Country and World all over depend a lot on intelligence report from informers whose identities for obvious reasons never get to be revealed. If there was law compelling the said agencies or the State to reveal them, then we could as well forget about fighting crime in the society because informers operate discreetly and would not want to be revealed for their own safety and security. What is important is for the agent or police officer to demonstrate how he acted upon on the intelligence report and what was discovered as a result.
43.In this instance, PW1 stated that when he got the intelligence report regarding the wildlife trophies, he informed his boss Mr. Abbas who gave him the greenlight to act on the report and launch an operation. He stated that he roped in two of his colleagues one from Nairobi (PW2) and the other one from Mwingi (PW3). Both witnesses (PW2 and PW3) corroborated that fact clearly in their respective testimonies. According to PW2, he accompanied PW1 from Kenya Wildlife Service headquarters in Nairobi on the material date and he heard PW1 keeping constant touch with the informer and the suspects on phone. When they reached Usueni Market at wee hours of the morning on 28th April 2017 at around 3 am PW1 he asked his colleagues to remain behind in order to lay a trap and once the appellant and his accomplice turned up totally oblivious of the fact that PW1 was posing as a buyer but was a Kenya Wild Life Service Officer he simply signaled PW2 and PW3 who quickly emerged from their hideout and arrested the appellant and his accomplice. The appellant was the rider of motorcycle registration No. KMDU 905P which was used to carry 12 elephant tusks. PW1 stated clearly that both the appellant and his co-accused engaged him in negotiating the price and eventually agreed at Kshs. 12 million for the 12 tusks.
44.The tusks were seized from the appellant and his accomplice. His defence that he was just hired by his accomplice in my view was just an evasive tactic. If at all he had just been hired, he could not have participated in the negotiations. Besides that, when the agreed price was reached, he went with the compliance and shortly came back with the 12 tusks well wrapped in 2 sacks.
45.The 12 elephant tusks seized were taken to National Museums of Kenya for forensic analysis by the Investigating Officer (PW5). He tendered an exhibit memo (P Ex 20) that accompanied the 12 tusks.
46.Dr. Ogeto Mwebi (PW5) an expert in animal remains analysis testified and gave a detailed report on the forensic analysis he carried out and gave his findings through comprehensive written submissions which I find quite comprehensive and detailed enough to show that the 12 pieces of elephant tusks sent to him were real elephant tusks. According to him, 4 of the tusks were from 2 adult or mature elephants while other 8 pieces belonged to elephants whose ages he could not establish but were not mature elephants. He testified that the tusks showed that they were removed from the bodies of elephants that had been freshly been killed and was able to note from one of the tusk, a 6.1 mm hole indicative of a hole probably caused by a bullet.The 12 elephant tusks were tendered by the Investigations Officer (PW5) as P Ex 1 to 12.
47.The production of the 12 elephant tusks and the expert report (P Ex 21) tendered by PW5 proved beyond doubt that the appellant was actually found in possession of 12 elephant tusks. Section 95 (d) of the Wild Life Conservation and Management Act under which the appellant was charged creates the offences relating to wildlife trophies and dealing with the same. It provides;
48.The above Section in my considered view does not present a legal quagmire as contended. The state has cited a decision in the case of Mutisya Kiema (Supra) where the court attempted to draw a distinction between Section 95 and 92 and the interface between the 2 Sections. I have taken time in reading the cited Sections. Section 95 deals with Wildlife trophies and as I have stated above, elephant tusks comprises wildlife trophies. Section 95 of World Life Management and Conservation Management states that the offence created thereon relates to wildlife trophies but precludes wildlife trophies of species not listed under Section 92 of the World Life Management and Conservation Management. Now Section 92 is restricted to offences relating to endangered or threatened species. Those species are listed under Sixth Schedule of the Act which classifies African elephant, Black rhinoceros and other animals as critically endangered, vulnerable and protected species. Section 92 (4) creates an offence. Under that Section any person being found in possession of wildlife trophy without a permit or exemption under the Act, and sanction provided is a fine of not less than 3 million or imprisonment of not less than 5 years or both.
49.The facts or evidence presented in this instance indicates that the appellant was found in possession of 12 pieces of elephant tusks which is defined by law as wildlife trophies. He was in actual possession and the respondent has cited Section 4 of the Penal Code that clearly defines possession as:-
50.The appellant herein had actual possession of the wild trophies when arrested because he jointly negotiated the price in the company of his co-accused and when the price was agreed he went with the co-accused and shortly thereafter, delivered the trophies to PW1 who was posing as a buyer. The Prosecution’s case in regard to possession was proved beyond doubt.
51.The facts/evidence presented during trial in my considered view reveals that an offence under Section 92 of World Life Management and Conservation Act was committed and I say so while respectfully departing from the decision cited by the Respondent in the case of Mutisya Kiema versus Republic eKLR particularly in light of the Provisions of Section 92 (4) of the Act which I hold creates an offence and prescribes a penalty.The Section states;It is quite clear from the above provision an offence is created when a person is found in possession of wildlife trophies in respect to endangered species without a permit/authority. Elephants are listed as endangered species.
52.The appellant for instance was charged under Section 95 of World Life Management and Conservation Act in Count I which I find defective. In Count II the charge indicates that the appellant was dealing with dealing with ‘‘government trophies’’ Contrary to Section 84 (1) as read with Section 92 of the World Life Conservation and Management Act.Section 84 (1) states that no person shall operate as a trophy dealer without a license issued by Kenya Wildlife Service. Section 83 defines government trophies as wildlife trophies found without a owner like when a wild animal is found dead or killed by Kenya Wildlife Personnel in the course of duty.
53.Therefore, whichever way ones looks at the charge sheet, it is patently clear that it was defective because the way it was drawn left a lot to be desired.
54.The facts presented however, as I have noted above, clearly revealed that an offence under Section 92 (4) had been committed and the question posed is whether the defect in the charge sheet is curable under Section 382 of the Criminal Procedure Code.
55.I have pondered again over the issue and I have come to the conclusion that the trial court fell into error by rendering a conviction under Section 95 which was defective because the charge sheet did not indicate that the wildlife trophies belonged/related to endangered or threatened species namely elephants.
56.The 2nd Count could not hold because the particulars thereof, were not in tandem with a charge under Section 84. The wild trophies belonged to the appellant and his accomplice and not government trophies as contemplated under Section 84 (1) of Worldlife Management and Conservation Act.
57.I note that the appellant initially pleaded guilty to Count I but changed plea when the facts were presented. In my view, there would be no prejudice suffered had the trial court invoked the Provisions of Section 382 of the Criminal Procedure Code and cured the error, by convicting the appellant under Section 92(4) of the Wildlife Management and Conservation Act. That section is legal and proper and I do not agree with the respondents’ contention that the Section is illegal.
58.So to answer the question of whether the charge sheet was defective, this court finds in the affirmative but I find the defect was not fatal to the prosecution’s case because it was curable under Section 382 of the Criminal Procedure Code.
59.The next issue for determination is whether the sentence was excessive. The answer to that is obvious because as I have cited above, Section 92(4) prescribes a penalty of not less than 3 million in fine or not less than 5 years’ imprisonment.That the trial court imposed a fine of 20 million or life imprisonment which penalty is prescribed under Section 99 that deals with import and export of Wildlife Species in respect to endangered species.The trial court was therefore, too harsh and imposed a penalty that was not commensurate with the offence upon which the appellant was charged. I have considered the aggravating factors pointed out by the State which includes protection of our wildlife inclined to uphold the conviction for the aforestated reasons the sentence imposed is set aside and in its place, the appellant will pay a fine of Kshs. 5 million or in default, spend 10 years in prison. Right of Appeal 14 days,
DATED, SIGNED AND DELIVERED AT KITUI THIS 7TH DAY OF DECEMBER, 2022.HON. JUSTICE R. K. LIMOJUDGE