Abdulkadir Anod Dole & Egal Bilad Abdallah v Republic [2017] KEHC 3255 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL APPEAL NO. 45 OF 2017

ABDULKADIR ANOD DOLE................................APPELLANT

versus

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

Consolidated with

CRIMINAL APPEAL NO. 46 OF 2017

EGAL BILAD ABDALLAH.....................................APPELLANT

Versus

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

(Being an appeal from the original conviction and sentence in

Nanyuki Chief Magistrate’s Court Criminal Case No. 903 of 2011

by Hon. L. MUTAI Chief  Magistrate on11th day of May 2017).

JUDGMENT OF THE COURT

1.  ABDUL – KADIR ANOD DOLE (hereinafter referred to as Abdul) and EGAL BILAD ABDALLAH (hereinafter referred to as Egal) have appealed before this court against their conviction and sentence before the Nanyuki Chief Magistrate’s Court. Before that court they were charged as follows:-

On count 1 Abdul and Egal were charged with the offence of killing an animal with intent to steal contrary to section 289 as read with section 275 of the Penal Code.The particulars of that offence were that on 9th July 2011 at Olpajeta in Laikipia County within the  Republic of Kenya killed one rhinocerous with intent to steal and did steal its two horns.

On count 2 Abdul and Egal were charged with the offence of dealing in Government trophy without a dealer’s licence contrary o section 43(4) (a) as read with section 52 (1) of the Wildlife (Conservation And Management) Act.The particulars of that charge are that on  13th July 2011 at South C Estate in Nairobi County within the Republic of Kenya they were dealing in Government trophies namely rhinocerous horns and one piece of elephant ivory all with a street value of Kshs.1,985,900 without a dealer’s license.

On count 3 Abdul and Egal were charged with the offence of possession of a Government trophy contrary to section 42(1)(b) as read with section 52(1) of the Wildlife (Conservation And Management) Act.The particulars of that charge were that on 13th July 2011 at South C Estate in Nairobi County within the Republic of Kenya they were found in possession of Government trophies namely two rhinocerous horns and one piece of elephant ivory weighing 2. 5 kilogram all with a street value of Kshs.1,985,900 without a certificate of ownership.

On the alternative charge to count 3 Abdul and Egal were charged with the offence of failing to make a report contrary to section 39(3) (a) as read with section 52(1) of the Wildlife (Conservation And Management) Act.The particulars of the alternative charge were that Abdul and Egal on 13th July 2011 at South C Estate in Nairobi County within the Republic of Kenya failed to make a report of possession of Government trophies namely two rhinocerous horns and one piece of elephant ivory weighing 2. 5 kilogram all with a street value of Kshs.1,985,900 to an authorised officer.

On count 4 Abdul was charged with the offence of being possession of implements of forgery contrary to section 367(b) of the Penal Code.The particulars of that offence were that on 13th July 2011 at South C Estate in Nairobi County within the Republic of Kenya had in his possession instruments for forgery namely five colour printer cartridges and one paper cutter without lawful authority.

On count 5 Abdul was charged with the offence of being in possession of forged currencies contrary to section 367(e) of the Penal code.  The particulars of that offence were that on  13th day of July 2011 at South C estate in Nairobi county within the Republic of Kenya without lawful authority was found in possession of 2,260 pieces of 100 denomination Ethiopian Birr notes and 1,560 pieces of 50 denomination Ethiopian Birr notes.

2.  Abdul and Egal were both convicted on count 3 and Abdul on his own was convicted on counts 4 and 5.  The trial court sentenced Abdul to 3 years imprisonment on count 3 and 4 years on count 4 and 4 years on count 5.  The sentence on count 4 and 5 were ordered to run consecutively.  Egal was sentence to 3 years imprisonment on count 3.

3. This court is the first appellant court.  The duty of the first appellant court was discussed in the case NYANDO MUKUTA MWAMBANGA V REPUBLIC (2008) eKLR viz:-

“This court as the first appellate court has a duty to re-appraise the evidence and come to its independent finding.  In doing so we have to appreciate that we do not have the advantage enjoyed by the trial court of seeing and hearing the witnesses and have to make due allowance for that –Soki v Republic (2004) 2 KLR 21; Kimeu v Republic (2002) 1 KLR 756.  Moreover, we are guided by the principle that the first appellate court should not interfere with the findings of the trial court which were based on the credibility of witnesses unless no reasonable tribunal could make such findings, or it was shown that the findings of the trial court are erroneous in law (Republic v Oyier (1985) 2 KLR 353; Burn v Republic (2005) 2 KLR 533).”

BACKGROUND

4. When the trial commenced before the Nanyuki Chief Magistrate’s court there were eight accused persons.  The accused person were 1st Abdul, 2nd Egal, 3rd Dahir Maalim Alio, 4th Hussein Ibrahim Abdi, 5th Daudi Dan Ismael, 6th Mohammed Harun Issack, 7th Noor Alio Hassand, and 8th Francis Liembasa Leukom.  As the trial progressed the charges against the 8th accused were withdrawn under section 87(a) Criminal Procedure Code and similarly the charges were withdrawn against the 5th accused after the court was informed that he had died.  After trial the  2nd, 3rd, 4th, and 6th accused persons were acquitted while Abdul and  Egal were convicted and sentenced as aforesaid.

PROSECUTION’S CASE

5. Daniel Mwaniki Kariuki (PW 3) a security officer at Olpajeta conservancy was on patrol on 8th July 2011.  He had worked at Olpajeta for 13 years.  On that date at 8 p.m. he heard gun shots coming from the direction where the elephants, rhinos and  lions amongst other animals were.  PW 3 alongside other employees of Olpajeta on going to the direction where the gunshots came from could not find anything untoward.  On the following day surveillance revealed a carcass of a rhino with its two horns missing.

6. Nancy Muthoni Kabete (PW 6) an assistant director of Kenya Wildlife Services (KWS) on 9th July 2011 received information from an informer that a motor vehicle registration No. KAT 263 Z a RAV4 vehicle, was transporting rhino horns to Nairobi.  PW 6 together with her colleagues Ahmed Ibrahim (PW 5) went to a police road block on Thika Road.  At 11 am on that same day the said vehicle was stopped.  The only occupant in the vehicle was its driver who was the 7th accused person.  The vehicle on being examined afterward was found to have blood stains at the back of the driver’s seat.  PW 6  said:-

“The blood was on the carpet and it was fresh.”

7. On 13th July 2011 PW 6 received further information from an informer.  The informer informed PW 6 that there were suspicious characters at house in  South C Nairobi.  As a result of that information PW 6 and Abdi Kadir Abdullah (PW 4) of KWS intelligence department, went to that house in South C Estate where PW 6 had been directed by the informer.  As they did so PW 6 requested the officer commanding station (OCS) at Langata Police Station to give them reinforcement.

8. On that day at 1. 30 p.m. Police Constable David Gichua (PW 1),who was based at Langata Police Station, was on patrol at Nairobi West area in the company of Cpl. Abdi Karam (PW 2).  They were near Mugoya Estate.  Both PW 1  and PW 2 were approached by PW 6 and other KWS officers and requested to accompany them at a certain house where the KWS officer suspected that government trophies were.

9. They all went to the house where Abdul, who introduced himself as the owner of the house, consented to the said police officers and KWS officers to search his house.  On entering they met Egal who was introduced as the wife of Abdul.  Downstairs of that house they met accused No. 3 to 6.  Accused No. 3 to  6 were eating.

10. A search was mounted by the officers but nothing was found downstairs of that house.

11. Abdul and Egal led the officers to the upstairs and in one of the rooms there was a locked cupboard.  On Abdul opening that cupboard money totalling Kshs.1,985,500 was found.  PW 6 also recovered from that cupboard two rhino horns which were in a green paper bag.  PW 6 said:-

“when I bent to pick it (the rhino horns) accused 2 (Egal) tried to restrain me by biting me on the back but she was restrained.”

12. The recovery of rhino horn in the cupboard was witnessed by PW 1 and later those horns were seen by the officers who were involved in the search.

13. As the search continued Abdul with PW 1 and PW 5 went to an adjacent room.  The room was dusty and with cobwebs.  The room was empty but on PW 1 climbing through a hole in the ceiling he retrieved a sack. In that sack were 100 and 50 Ethiopian currencies, a printing machine, incomplete printed paper, some paper printed with Ethiopian currency, some cotton and also an elephant tusk.

14. The Ethiopian Birr currency that was recovered from the extention room of Abdul and Egal were subjected to examination by a document examiner who in his report concluded:-

“The notes are in my opinion ordinary pices of paper cut and sized into counterfeits 100/= and 50/= Birr notes and they are not good as legal tender.”

15. Ogeto Mwebi (PW 13) a research scientist at the National Museum on examining the horns and the tusk determined that the horns belonged to a rhino and tusk was an elephant tusk.  He determined that they were government trophies.

16. Moses Yongo Otiende (PW 14) a molecular biologist examined the horn shaving which its DNA revealed that it was from a male black rhinocerous.

DEFENCE EVIDENCE

17. Abdul gave sworn evidence.  He stated that he was in the business of mining in Moyale.  He denied being anywhere near Laikipia on 9th July 2011.  That he was on that day on leave and at Nairobi.  He denied that on 13th July 2011 he was trading in animal trophies or having possession of such trophies. He also denied having possession of Ethiopian currency.  He said that on 13th July 2011 PW 6 in the company of two police officers went to his house where he was having a party. The police officers ordered him and his visitors to remain where they were as  the police officers together with PW 6 went upstairs. Shortly Abdul heard Egal, his wife, making noise and ongoing upstairs he found Egal with money and PW 6 was struggling for it.  That the Ethiopian currency was recovered from a house he had rented out to an Ethiopian national.  Abdul produced a tenancy agreement between himself and a person called Getu Diriba which was for 3 years and expired 1st April 2011.  Abdul then said that PW 6 wore a shawl when she went to his house.

18.  Egal described herself as a business lady who sells food and clothes and who lives in South C estate.  She stated in evidence on oath that on 9th July 2011 she was at home.  On 13th July 2011 she had prepared food at home for those who attended prayers in her house.  That police officers who included a police woman went to her house while she was upstairs praying.  That police officer went upstairs and informed her they wanted to search the house.  That in their search they only recovered  money Kshs.1,985,900 which PW 6 grabbed and when Egal tried to get the money from PW 6 she was hit.  That she was taken to the police station and since she insisted the money belonged to her she was charged with the offence she faced before the trial court.  Egal denied knowledge of the elephant ivory and rhino horn before court.  She stated that those trophies together with Ethiopian currency she first saw them before the trial court.  Egal further state that she had a food business which she began to operate in the year 2007 and a clothes shop which she began to operate in the year 2015.  That although she pays taxes for her business she did not have a document before court to prove the same.  That in 2011 she had just arrived back to Kenya from America where she is a citizen.  In response to prosecution’s question on the defence exhibit No. 1, the tenancy agreement Egal stated:-

“Defence Exhibit 1 is unknown to me since it was done when I was out of the country.  I don’t know who the tenant named is.  I have never seen him.  When I returned to Kenya the house was locked up.”

ANALYSIS AND DETERMINATION

19. Abdul and Egal were represented by three separate law firms. Their petitions of appeal were filed on 22nd May 2017 by the firm of Kiget & Co. Advocates.  The firm of Ali & Company advocates on 17th July 2017 filed one ground of appeal under the title of ‘Supplementary Ground of Appeal’. The firm of Ondieki & Ondieki advocates on 19th June 2017 filed what is entitled ‘Supplementary Petition of Appeal’ which contains 18 grounds of appeal.  It is pertinent to note that leave was not sought for the supplementary grounds of appeal to be admitted by the court.  That notwithstanding in the interest of justice this court will regard those supplementary grounds as though they were admitted out of time with leave of court.  It is also important to state that the appellant’s grounds of appeal and the supplementary grounds of appeal largely overlap.

20. Submissions of the learned counsels who represented the appellants, Abdul and Egal greatly attacked the credibility of PW 6.  Learned counsel Mr. Ondieki attributed lack of credibility of PW 6 to the fact that in the process of recovering  the government trophies there was a near confrontation between Egal and PW 6.  Indeed Mr. Ondiek called it altercation.

21. PW 1, one of the police officers assisting KWS officers, was present upstairs when a search was going on.  He stated that in the cupboard was Kshs.1,985,900.  Immediately that money was found Egal said that it was hers. When PW 6 ordered the second drawer of the cupboard to be opened Egal began to scream and a fracas arose.  Later when PW 1 was cross examined he stated that Egal became violet when the money was found in the cupboard and that she said the money could not be taken away.  That Egal began to struggle with PW 6  and it was then PW 1 intervened and separated them.

22. PW 6 stated that when they were searching the upstairs room they came across a room that was locked.  Egal resisted having that door opened but on Abdul pleading with her she agreed to have the door opened when PW 6 found the money in the cupboard, PW 6 said that Egal tried to restrain her by biting PW 6’s back but she was restrained.

23. Consideration of that evidence there is nothing that suggests that PW 6 was not a credible witness.  Although Abdul stated in his defence that PW 6 had worn a shawl when she went to his house it is imperative to note that no question was put to PW 6 when she was cross examined by learned counsel, Mr. Kiget for the appellants, to imply that PW 6 was wearing a shawl. In any case Abdul never gave reason why he specifically stated in his defence that PW 6 wore shawl.  Was it intended to  imply that PW 6  was hiding something in the shawl?  If so it was not clear in his defence.

24. Similarly Egal in her defence stated that PW 6 had previously been to their house, at a time when she, Egal, was out of the country.  Again no suggestion was made by learned counsel Mr. Kiget when he cross examined PW 6 to suggest that she, PW 6, had been at the house of the appellants prior to the day the search of that house took place, that is, on 13th July 2011.

25. In my view issues raised by the appellants, highlighted above can only be termed as afterthought because if they had been otherwise they would have been raised when prosecution witnesses testified.   It follows that the attack of the evidence of PW 6 by the learned counsels for the appellants was unwarranted and unreasonable.  In my view there was nothing that adversely affected the evidence of PW 6.  My evaluation of PW 6 testimony leads me to discount the attack by the appellants. Cross examination is designed to enable the cross examiner test the credibility of a witness.  In my view the cross examination of PW 6 showed her to a credible and believable witness.  To her credit PW 6 on receiving information on 9th July 2011 that a rhinocerous had been killed at Olpajeta and its two horn had been taken immediately began to seek information from her informers.  On receiving information she was able to apprehend the 7th accused on 9th July 2011 who was driving a motor vehicle which had fresh blood on the  floor of the back seat behind the driver.  PW 6 further investigation led her to mount a search on 13th July 2011 at the home of both appellants whereupon two rhinocerous horns, which were still bloody, were found.  It was due to her quick action that the crime committed at OlPajeta Conservancy on 8th/9th July 2011 was resolved.  There was no evidence of any ulterior motive for the action PW 6 took when the crime of the killing of the rhino was reported.  It is for that reason that the submission of the appellants’ counsel, that the evidence of PW 6 could not be relied upon, is rejected.

26. The appellant also submitted that the search of Abdul’s and Egal’s home having been carried out in the absence of a search warrant, that the evidence that resulted from that search was tainted and should have been disregarded.

27. Learned Principal Prosecuting Counsel Mr. Tanui in response to appellant’s submissions submitted that even though the search was undertaken in the absence of a search warrant the appellants did not suffer any prejudice.

28. The search of the appellants’ home was carried out by both police officer and KWS officers.  That being so there are two statutes that governed the search of the appellants’ home.

29. Under section 22 of the Criminal Procedure Code and more specifically subsection (1) any person acting on a warrant of arrest or any police officer who has authority to arrest and have reason to believe that the person to be arrested has entered any place the person who reside in that place shall on demand allow the person acting under warrant of arrest or the police officer free ingress thereto.  Subsection (2) is as follows:-

“If ingress to a place cannot be obtained under subsection(1), it shall be lawful in any case for a person acting under a warrant, and in any case in which a warrant may issue but cannot be obtained without affording the person to be arrested an opportunity to escape, for a police officer to enter the place and search therein, and, in order to effect an entrance into the place, to break open any outer or inner door or window of a house or place, whether that of the person to be arrested or of another person, or otherwise effect entry into the house or place, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance.”

30. Under section 49 of the wildlife (Conservation and Management) Act (now repealed but which was operating at that time) it provides:-

“If an authorised officer has reasonable grounds for believing that any person has committed an offence under this Act or the rules he may-

a....................................

b.Enter and search, with or without assistance, any land, building, tent, vehicle or boat in the occupation or possession of such person, and open and search any baggage or other thing in the possession of such person:

Provided that no dwelling house shall be entered without a warrant except under exceptional circumstances.

c.Seize and detain anything which appears to the officer to be a government trophy, or any vehicle, boat, firearm or any other weapon, trap, net or poison, or any instrument, material or thing whatsoever in relation to or in connexion with which any offence against this Act or the rules appears to have been used in, or for the purpose of, the commission of any such offence, whether or not it is in the immediate possession of any person.”

31. The prosecution in relation to the search of the appellants’ house relied on the evidence that the KWS officers had information that there was Government trophies in the appellants’ home which were about to be sold.  PW 1 the police officer on patrol, said that he and his colleagues were approached by KWS officer.  He said that:

“They told us that they were looking for a certain house that they suspected to possess game trophies.”

32.  PW 2, other police officer said:-

“We met with officers from KWS ...... they informed us that there was a house nearby that they suspected there were government trophies.”

33. PW 5 a KWS officer was informed on 9th July 2011 by PW 6 that a rhino had been killed at Olpajeta.  On 13th July 2011 PW 6 informed him that rhino horns had been delivered at a house in south C estate.  It was then that PW 5 and PW 6 went to that estate met with police officer PW 1 and PW 2 and together proceeded to the home of the appellants.

34. PW 6 after receiving information of the killing of the rhino at Olpajeta on the following day got information from an informer that the rhino horns were being transported using motor vehicle KAT 236 Z.  Thereafter her informer informed her that the horn had been delivered at the appellants’ home.  It was due to that information that she and PW 5 sought the assistance of PW 1 and PW 2 to go and search the home of the appellants.

35. It will be noted from the above that both the police officers and KWS  officers had reasonable ground to believe that a crime had been or was about to be committed in the appellants’ house.  It was not the case that those officers went into the appellants’ house without any suspicion that a crime had been committed and then found the government trophies. No.  The prosecution’s evidence is clear that the officers searched the appellants’ house because they had information that a crime would have been committed therein. There was no evidence that the officers used excessive force in carrying out that search.

36. Under section 49 of the Wildlife Act, the KWS officer ought not to have searched a dwelling – house without a search warrant except under exceptional circumstances.  The circumstances under which the search was undertaken was that the rhino horns had within a few days travelled from Nanyuki to Nairobi.  The rhinocerous was killed on the 8th/9th July 2011.  On 9th July 2011 KWS was informed they were being transported by vehicle KAT 236 Z on Thika road.  On 13th July 2011 KWS was informed that the horns were being sold at appellants’ home in South C estate.  The KWS, no doubt, needed to move with haste to ensure the rhino horns were not yet again moved away.   Under those circumstances therefore the KWS officers were justified to consider entering the appellants’ home to carry out the search.  Those in my view were the exceptional circumstances that were envisaged in section 49 of the Wildlife Act.

37. Additionally under the police Act Cap 84 (now repealed but applicable then) in particular section 20 a police officers could carry out a search when he had reasonable ground to believe that something necessary for investigation is likely to be found there.  Section 20 of the Act provides:-

“20. (1) when an officer in charge of a police station or a police officer investigating an alleged offence, has reasonable grounds to believe that something necessary of the purposes of such investigation is likely to be found in any place and that the delay occasioned by obtaining a search warrant under section 118 of the Criminal Procedure code will in his opinion substantially prejudice such investigation, he may, after recording in writing the grounds of his belief and such description as is available to him of the thing for which search is to be made, without such warrant as aforesaid enter any premises in or on which he expects the thing to be and there search or cause search to be made for, and take possession of, such thing:

Provided that-

i.The officer shall carry with him, and produce to the occupier the premises on request by him, his certificate of appointment;

ii.If anything seized as aforesaid he shall forthwith take or cause it to be taken before a magistrate within those jurisdiction the thing was found, to be dealt with according to law.

38. Learned counsels for the appellants submitted that the search of the appellants’ home was a violation of their right to privacy.  Article 31 of the constitution provides:-

“Every person has the right to privacy, which include the right not to have

a.Their person, home or property searched;

b.Their possession seized;

c.........................

d.........................

In the case SAMSON MUMO MUTINDA –V- INSPECTOR GENERAL NATIONAL POLICE SERVICE & 4 OTHERS (2014) eKLR  stated in respect to right of privacy thus:-

“In Samura Engineering Limited and others –v- Kenya Revenue Authority Nairobi Petition No. 54 of 2011 the court emphasized the importance of the right to privacy, “(66).  The right to privacy enshrined in our constitution includes the right to not to have one’s person or home searched, one’s property search or possession seized.  Since searches infringe the right to privacy, they must be conducted in terms of legislation which must comply with the provisions of Article 24.  It has been said that the existence of safeguards to regulate the way in which state officials enter the private domain of ordinary citizen is one of the features that distinguishes a democracy from a police state.”

39. The prosecution provided evidence that the appellants consented to the search carried out at their house.  PW 1 said that when they went to appellants’ house they informed them, and their visitors that were present, that they wanted to search the house.  He stated:-

“We told the first accused (Abdul) that we wanted to search the house.”

40.  PW 2 said that they found Abdul standing outside his house.  PW 6 told Abdul that they wanted to search his home and PW 2 said Abdul consented to that search.  Indeed PW 2 said that it was Abdul who led them in the house as they carried out the search.

41.  PW 5 also stated that it was PW 6 who informed Abdul that they wanted to search his house.

42.  PW 6 stated:

“I introduced myself to accused 1 (Abdul) and the rest of the team.  I told him  (Abdul) we wanted to search his house and he accepted.”

43.  It is important to state that the learned counsel for the appellants on that evidence being tendered on the consent to search, did not contradict it in cross examination.

44.  Abdul in his defence said:

“They (the police and KWS officers) ordered us to remain in the same position.”

In so stating Abdul did not say that he objected to the search of his home.  Egal on her part in her defence said that she was upstairs when the officers entered the home.

45. The summary of the prosecution’s evidence and the defence point to the appellants’ acquiescence to the search of their home.  They acquiescented to their privacy being invaded by the officers.  Having done so their rights were not violated, at all.  This holding is supported by the case SAMSON MUMO (supra) where the court stated:-

“The right to privacy protects a person’s autonomy.  The breach of the right of privacy either involves violation of the law that permits infringement of the right consistent with the limitation provided under Article 24 of failure to obtain consent of the person.  Thus the right to privacy may be waived by a person consenting to the search of his person or premises in certain circumstances.  Such consent must be voluntarily and freely given.

In this case the police officers cannot be faulted for acting in the manner they did as the petitioner permitted them entry into his premises and voluntarily gave them the items they sought.  I therefore find and hold that the petitioner freely gave his consent to the search and seizure and that he cannot therefore complain that there was violation of his right to privacy.”

46. There is therefore no basis for alleging that the constitutional rights of the appellants, or their right to privacy was violated. The search was conducted with the consent of the appellants.

47.  The items relating to count 4 and 5, that is the Ethiopian currency and implements of printing and the elephant tusk were found in an adjacent extention room to the appellants’ main house. It was submitted that the trial court erred to have found that the tenancy agreement relating to that adjacent room produced by Abdul, had expired by the time the search and recovery was made.  Learned counsel emphasized that the tenancy agreement was to run for 3 years from 1st May 2009 and that it was an error to have stated in that tenancy that it agreement would terminate on 1st April 2011.  Learned counsels argued that the tenancy terminated on 1st April 2012, which was a period after the search was carried.  That accordingly the said adjacent room was under the control of the tenant and items recovered thereof could not be attributed to the appellants.

48.  The relevant paragraph of that tenancy agreement was as follows:-

“WHEREBY IT IS AGREED AS FOLLOWS:-

1. The Landlord lets and the tenant takes the self contained 2 bed roomed house No. 67, upper floor, extension to the main house, Akiba Phase 2, Nairobi, herein after called “the demised premises” on the following terms and conditions:-

A:   TERM:  Three (3) years with effect from the 1st day of May 2009 terminating on 1st April 2011. ”

49.  Surprisingly the defence offered by both the appellants was contrary to what their learned counsel submitted in support of this appeal.  Abdul in regard to the tenancy of their adjacent room said in his defence:-

“The Landlord/tenancy agreement is duly signed by me (Abdul). It’s for 3 years form 1st May 2009 to 1st April 2011.  It was to expire on 1st April 2011.  The alleged offence occurred after 1st April 2011. ”

50. The fact is that the offence, that is the killing and dehorning of the rhino occurred on 8th /9th July 2011.  From the defence offered by Abdul it is clear that by 8th July 2011 the tenancy agreement had expired and accordingly, in the absence of proof otherwise, that adjacent room was under the control of Abdul.  If otherwise one would have expected that some other evidence would have been adduced by the appellant to show that as at 8th July 2011 the adjacent room was under the control of the tenant.  At the very least the appellants should have produced evidence that up to 8th July 2011 they were still receiving rent from their tenant.  If no rent was being received under clause 4(v) of the tenancy agreement the landlord, in this case Abdul, was entitled to terminate the agreement on giving the tenant one month notice in writing.

51. Abdul in order to displace prosecution’s evidence could also have adduced evidence of the advocate who drew and witnessed the signing of the tenancy agreement to testify that the tenancy was for 3 years from 1st May 2009 and that it was in error that the termination was indicated in that agreement to be on 1st April 2011 and not 1st April 2012.

52. Egal who was present when the search and recovery of item the subject of this case was done, that is on 13th July 2011 did not also, in her defence, support the submissions made by her counsel that the tenancy agreement was to expire on 1st April 2012.  On being re-examined by her counsel in her defence Egal said:-

“Defence exhibit 1 (the tenancy agreement is unknown to me since it was done when I was out of the country.  I do not know when the tenant as named is – I have never seen.  When I returned to Kenya the house was locked up.”

53.  The gist of the above statement is that Egal had not seen the tenant because she was out of the country when the tenancy agreement was entered into and on her arrival back to the country she found the adjacent room locked up.  If one then considers that on the day the search of the appellants home was conducted that Egal was present, then it follows from her defence evidence that when that search was carried out the adjacent room was vacant and locked up.  That evidence is supported by the evidence of PW 1 who said the adjacent room was dusty with cobwebs and had no bed or mattress.

54.  There is doubt in my mind whether the tenancy agreement Defence Exhibit 1 related to the adjacent room where the search and recovery was made.  The reason for my doubt is because the defence exhibit 1 related to a house in Akiba phase 2.  The property that a search was conducted in Mgoya Estate according to PW 2, or in South C according to PW 4, PW 5 and PW 6.  The question that needed to be resolved by the appellants was whether Akiba Phase 2 is the same as Mgoya Estate or South C Estate where the prosecution said the search was carried out and notably the appellants’ counsel did not contradict that in his cross examination of prosecution’s witnesses.

55.  But more importantly the reason why I doubt that the Defence Exhibit No. 1 related to the room that was searched by the officers is because Defence Exhibit No.1 describes the demised property as being “self contained 2 bedroomed house.”  PW 1 stated in evidence, which was not contested in cross examination, that the adjacent room was a single roomed.  That tenancy agreement Defence Exhibit No. 1 therefore bears no relation to the room that was searched by PW 1.

56. In summary i do not find that the trial court erred to have held that the tenancy agreement had expired when the search was carried out.  The clear evidence adduced by the prosecution was that the main house and the extension room were under the ownership of both appellants.  There was no error therefore made by the trial court in finding that Abdul was in possession of that extension room and accordingly was in possession of the contents found therein.

57. C I Alex Mwongela (PW 11) a document examiner produced the report prepared by another document examiner who determined the Ethiopian Currencies recovered from the adjacent extention room of the appellants were forgeries.  It is now submitted before this court that the trial court erred to have permitted the production of that report by another officer.

58.  The officer who made that report was said to have resigned and hence why he could not be called to submitted the report.  A careful reading of sections 77(3) and 78 of the Evidence Act makes it clear that the court retains discretion to admit reports of government analysts and to only summon the maker if the court thinks it fit to do so.  The trial court having heard the objections raised by the learned counsel rightly, in my view exercised its discretion and permitted the report to be produced by another analyst.  The exercise of that discretion cannot be faulted.

59. Although it was stated that there was no direct evidence that Abdul had produced counterfeited currency, the prosecution, in my view, proved that Abdul was the owner of both the main house and the extension and consequently proved possession of the currencies, printing implements and the elephant ivory tusk.

60.  Learned counsel Prof.  Wilson Hassan Nandwa, for the appellant, erred, in my view, in submitting that the trial court erred to have failed to determine that the charge under count 3 required evidence of ownership by the appellants’ of the elephant tusk and rhino horn.  The section under which count 3 set out, is section 42 (and not 43 as submitted by Prof Nandwa) of the Wildlife Act:  that section in the following terms:-

“(1) Save as otherwise provided by this Act, any person who is in possession of any trophy, or of any ivory or rhinocerous horn of any description, without also being in possession of a certificate of ownership in respect thereof shall be guilty of a forfeiture offence and –

a......................................

b.In any other case, be liable to a fine not exceeding ten thousand shilling or to imprisonment for a term not exceeding three years or to both such fine and imprisonment.”

61. The learned counsel submitted that the trial court failed to note that the section not only required proof of possession but also proof of ownership.  My reading however of the above reproduced section does not show need to prove ownership of the government trophy.  Not at all.  The error I think the learned counsel fell into was to consider the subtitle of section 42 of that  Act.  The subtitle is as follows:-

“Certificate of ownership for possession of trophies”

Section 10 of the interpretation and General provisions Act Cap 2 provides:-

“All Acts shall be divided into sections, if there are more enactment than one which section shall be substantive enactment without introduction word.”

It is clear form that section the substantive enactment is the section and not introduction word, that is not the title.

62. Even from the subtitle of that section it is clear that the ownership relates to the certificate proving ownership.  It is for that reason the submissions in that regard are rejected.

63. Further the trial court did not err to borrow the definition of possession as seen in the Penal Code Cap 63.  Ideally, of course, since the offence the appellants faced was under the Wildlife Act, which Act does not define possession a dictionary definition should have been preferred by the trial court.  The Blacks Law Dictionary Eighth Edition defines possession as:-

“The fact of having or holding property in one’s power; the exercise of dominion over property.  The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of material object.”

64. Paying regard to that definition I am of the view that the prosecution proved possession of the elephant tusk and rhino horns.  The rhino horns were recovered in one of the rooms upstairs of the appellants’ home.  They were not recovered in the sitting room or any other room where visitors would have liberal access.  They were found in a room next to the master bedroom.  That in itself clearly shows possession.  Similarly the finding of items in the adjacent room showed possession.  That room was an extention of the main house owned by the appellants.  The door to that room was locked. The police officer had to break the door to gain access.  It follows that  possession of those items could only be in the appellants not anyone else.

65. The submissions that the appellant’s visitors, who were accused number 3 to 6 could have been owners of the items recovered after the search is farfetched and rejected.  Abdul stated that the accused number 3 to 6 were his visitors who had gone to his house for the reading of Quran. Egal reinforced that statement by saying that accused No. 3 to 6 were her visitors and that she was having a party at her house.  If that be the defence offered by both the appellants their counsel’s submissions that the prosecution failed to show whether the recovered goods belong to the appellants or the visitors accused number 3 to 6 is wholly misplaced and rejected.

66.  Although on one of the grounds, appellants stated that the trial court failed to “uphold the value language to the prejudice of the appellant (which statement is not clear) and also that the prosecution contravened section 85 of the Criminal Procedure code, those two grounds did not receive any submissions of counsel and I shall therefore deem them as abandoned.

67. The appellants were in error to submit that the trial court did not consider their defence.  To the contrary their defence were considered and analyzed by the trial court.

68.  It is indeed correct to state that the trial of the appellants was conducted before three different magistrates the last being the one who wrote the judgement.  On my perusal of the  trial court’s proceedings it is clear that section 200(3) of the Criminal Procedure code Cap 75 was complied with. The appellants were at all times represented by learned counsel.  On inquiry by the trial court on each occasion a new magistrate took over the trial their learned counsel, on their behalf, elected to have the trial proceed from where it had ended.  Having made that election it becomes difficult to understand the submission that section 200(3) of Cap 75 only envisages the taking over the trial by one single magistrate.  That is erroneous.  That section  does not envisage one magistrate taking over the trial.  It talks of a succeeding magistrate.  That section is in the following terms:-

“(3) where a succeeding magistrate commences the hearing of proceedings and part of the evidence has been recorded by his predecessor, the accused person may demand that any witness be re summoned and reheard and the succeeding magistrate shall inform the accused person of that right.”

69. The right to stat denovo or recall witnesses under section 200 of Cap 75 is not absolute.  This was clearly set out in the following cases:-

(1)  Republic v Welington Lusiri (2014) eKLRviz:-

“The third and more important reason why the learned trial magistrate was wrong in allowing the trial to startde novois that a magistrate or a trial court is not duty bound to order that trial startsde novoundersection 200of the Criminal Procedure Code, even if the accused demands the recall of witnesses.  The succeeding magistrate has to consider the particular circumstances of each case.  In the case of Ndegwa –vs- Republic (1985) KLR 534 the Court of Appeal held that Section 200 of the Criminal Procedure Code should be used sparingly.  When only a few and critical witnesses have testified and witnesses are available, a new trial may be ordered.  Though the court appreciated that a new magistrate may not be able to assess the demeanour of witnesses who have already testified before another magistrate, the court left the discretion to the succeeding magistrate to decide whether to proceed from where a case had reached or recall witnesses, depending on the particular circumstances of each case.  In the later case of Ephraim Wanjohi Irungu & 7 others vs Republic – Nrb. HCCR. REV. No. 6 of 2013, the High court emphasized that a fair trial underArticle 50of the Constitution of Kenya 2010 connotes that a trial should commence and be concluded without reasonable delay.  Starting a trialde novoin our present case obviously constitutes a delay in finalising a case.”

(2) Republic v Patrick Mundia Muiru (2017) eKLRviz:-

“In the case of JOSEPH KAMAU GICHUKI (supra) the Court of Appeal quoted with approval the case of NYABUTO & ANOTHER VS republic (2009) KLR 409 which I find relevant and adopt in this matter as follows:-

‘In Nyabuto & Another V Republic, (2009) KLR 409, the appellants had been tried before a judge of the High Court who, after having fully heard the case and received the opinion of assessors, reserved the judgement to be delivered on notice.  However, he died before he had delivered the judgment.  The case was taken over by another judge who acted on the evidence recorded by the late judge and convicted the appellants and sentenced them to death.  The appellants appealed to this court on, among others, the ground that the trial judge erred in writing and delivering judgment without having heard any of the witnesses and upon evidence wholly recorded by another judge.  In dismissing the appeal, this court stated as follows regarding section 200(1)(b) of the criminal procedure Code:-

‘It is plain that the late Kaburu Bauni J died after he had heard and recorded the whole of the evidence in the trial.  By dint of section 200(1)(b) of the Criminal Procedure Code a succeeding judge may act on the evidence recorded wholly by his predecessor.  However, section 200 aforesaid is a provision of the law which is to be used very sparingly and only in cases where the exigencies of the circumstance, not only are likely but will defeat the ends of justice if succeeding judge does not, or is not allowed to adopt and continue a criminal trial started by a predecessor owing to the latter becoming unavailable to complete the trial.   See Ndegwa vs R (1985) KLR 535.  In this case the trial judge passed on after having fully recorded evidence from 7 witnesses and from the two appellants and had infact summed up the assessors.  The trial, moreover, was not a short one but a protracted one which had taken over five years to conclude.  The passage of time militated against the trial being started denovo.  Though prosecution witnesses might have been available locally, re-hearing might have prejudiced the prosecution, and possibly also, the appellant because of accountable loss of memory on the part of either the prosecution witnesses or the appellants.  Musinga J. In our view acted in an attempt to dispatch justice speedily and cannot be faulted because the law permitted him to do so.  It cannot be lost in mind that public policy demands that justice be swiftly concluded.’

In the present appeal, we find that the succeeding magistrate acted properly under section 200(1)(b) of the Criminal Procedure code and that the circumstances of the case fully justified that approach.  There was no violation of section 200(3) of the Criminal Procedure code and that the appellant was not prejudiced so as to warrant an order for re-trial under Section 200(4) of the Criminal Procedure code.”

70.  I do reject submission that there were vital witnesses who were not called to testify.  All vital witnesses did indeed testify.

71. The trial court did not shift the burden of proof.  It is clear from the well analysed judgment of that court that due consideration was given to the prosecution and the defence evidence.

72. It is the finding of this court that the prosecution’s evidence established a case against the appellants and justified the trial court’s conviction.

73. The appellants counsel submitted that the sentence of the trial court was harsh for first time offenders, of which the appellants were, and that the trial court failed to consider that the appellants were elderly.  Learned counsel Mr. Ondiek submitted that the trial court in sentencing the appellants violated their constitutional right that require, in his words, “that elderly people be treated well.”

74.  In my view there is no Article in the constitution which justifies one to receive different sentence once convicted simply on their age. That submissions is therefore rejected.  The appellants were convicted of the offence under section 42(1)(b) of the Wildlife Act.  The sentence under that section is of a fine not exceeding Kshs.10,000 or to imprisonment for a term not exceeding three years or to both.

75.  On both appellants being convicted under that section the trial court sentence them each to serve 3 years imprisonment.  In so sentencing the appellants the trial court stated:-

“The 1st accused (Abdul) and 2nd accused (Egal) mitigation duly considered.  Although each accused is a 1st offender the offences committed are indeed serious and it is common knowledge that game animals have continued to diminish under the hands of many who forget the gains of such animals to the country economy.  The nature of the offence calls for a deterrent punishment.”

76. It needs to be appreciated that sentencing is at the discretion of the trial court.  This was so stated in the case Arthur Muya Muriuki V Republic (2015) eKLR thus:-

“Regarding the sentence, sentencing is the discretion of the trial court but such discretion must be exercised judiciously and not capriciously.  The trial court must be guided by the evidence and sound legal principles.  It must take into account all relevant factors and eschew all extraneous or irrelevant factors.  Certainly the appellate court would be entitled to interfere with the sentence imposed by the trial court if it is demonstrated that the sentence imposed is not legal or is so harsh and excessive as to amount to miscarriage of justice, and or that the court acted upon wrong principle or if the court exercised its discretion capriciously.  In Shadrack Kipchoge Kogo vs Republic, Criminal Appeal no. 253 of 2003 (Eldoret), Omolo, O’Kubasu & Onyango JJA) the Court of Appeal stated:-

‘Sentence is essentially an exercise of the trial court and for this court to interfere, it must be shown that in passing the sentence, the court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.”

77. The appellants’ counsel faulted the trial court for the statements it made in sentencing the appellants.  The statements, in my view, are the basis upon which the trial court sentence the appellants.  It was the rationale for the sentence the trial court passed.  The importance of the trial court giving the rationale for the sentence was discussed in the case THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTION) V DAVID FLYNN (2015) IECA 290 thus:-

“Since its establishment this court has repeatedly and consistently sought to emphasise that this approach is regarded by its as best practise and we have sought to commend to trial judges that they explain the rationale for their sentences in that structured way, not least because a sentence is much more likely to be upheld if the rationale behind it is properly explained.  Equally if this court when asked to review a sentence cannot readily discern the trial judge’s rationale or how he or she ended up where they did having regard to accepted principles of sentencing such as proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good but unspoken reasons, for imposing the sentence in question.”

78. The statement made by the trial court that gave life was diminishing when sentencing the appellant was not misplaced, at all, and it was not the trial court creating evidence, rather the trial court was giving reason for its sentence.

79. The sentence of 3 years on count 3 was not the maximum sentence.  The maximum sentence would have been both the prison sentence of three years and fine of Kshs.10,000.  That being so I find no basis of interfering with the trial court’s sentence on count 3.

80. On count 4 and 5 the trial court sentenced Abdul to serve 4 years and 5 years imprisonment respectively.  Those sentences were ordered to run consecutively.  The trial court did not give reason /rationale why the sentence on those two counts was ordered to run consecutively.  Having not given reason it invites this court to interfere with those orders.

81. The offences of count 4 and 5 were in the same transaction.  They related to recovery of counterfeit Ethiopian currency and recovery of printing implement.  Since the offences were of the same transaction and in the absence of exceptional circumstances the order should have been that the sentence run concurrently.  Accordingly to that extent this court shall interfere with the trial court’s sentence.  In this regard see the case PETER MBUGUA KABUI V REPUBLIC (2016) eKLR viz:-

“In the case of Sawedi Mukasa s/o Abdulla Aligwaisa (1946) 13 EACA 97, the then Court of Appeal for Eastern Africa in a judgment read by Sir Joseph Sheridan stated that the practice is where a person commits more than one offence at the same time and in the same transaction, save in very exceptional circumstances, to impose concurrent sentences.  That is good practice.

As a general principle, the practice is that if an accused person commits a serious of offence at the same time in a single act /transaction a concurrent sentence should be given.  However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.”

82.  In the end the appellants’ appeal against conviction under count 3, 4 and 5 fails and is dismissed. The trial court’s sentence of 2nd appellant Egal Bilad Abdallah is confirmed. The trial court’s sentence of 1st appellant Abdul-Kadir Anod dole on count 3 is confirmed.  The trial court’s sentence of 1st appellant Abdul Kadir Anod Dole on count 4 and 5 are upheld save that those two sentences shall run concurrently.

It is so ordered.

DATED and DELIVERED at NANYUKI this 4TH day of OCTOBER 2017.

MARY KASANGO

JUDGE

CORAM:

Before Justice Mary Kasango

Court Assistant:  Njue/Mariastella

Appellants: Abdulkadir Anod Dole ........................

Egal Bilad Abdallah .................................................

For appellants ...........................................................

For the State: ….........................................................

Language: ..................................................................

COURT

Judgment delivered in open court.

MARY KASANGO

JUDGE