Makupa Ndege v Republic [2017] KEHC 2329 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CRIMINAL APPEAL NO 13 OF 2015

MAKUPA NDEGE….………... APPELLANT

VERSUS

REPUBLIC………………..…RESPONDENT

(From original conviction and sentence in Criminal Case Number 673 of 2014 in the Senior Principal Magistrate’s Court at Voi delivered by Hon S. M. Wahome) (SPM) on 23rd September 2014)

JUDGMENT

INTRODUCTION

1. The Appellant herein, Makupa Ndege, was tried and convicted by Hon S. M. Wahome, Senior Principal Magistrate for the offences of being in possession of wildlife trophy contrary and being in possession of hunting apparatus contrary to Sections 95 and 102(1)(f) respectively of Wildlife Conservation and Management Act, 2013. He pleaded guilty to both Counts.

2. In respect of Count I, he was fined Kshs 1,000,000/= and in default, to serve five (5) years’ imprisonment.  For Count II, he was fined Kshs 200,000/= and in default to serve two (2) years’ imprisonment.

3. Proceedings from the Trial Court show that on 22nd September 2014, the Prosecutor applied to amend the charges. It was not indicated what amendments the Prosecution intended to make or made. Appreciably, failure to indicate what this amendment related to forced this court to spend time combing through the Counts to decipher the purport of the said amendment.

4. Acareful perusal of the Charge Sheet stamped by the OCS Voi Police Station on 4th September 2014, however, indicated that in respect of Count II, the Appellant had been charged with the offence of being found in possession of hunting apparatus namely five (5) bows and eleven (11) poisoned arrows for purposes of hunting.

5. In the Charge Sheet that had been executed by the Learned Trial Magistrate on 16th March 2015, it showed that the Appellant had been charged with the offence of being found in possession of hunting apparatus namely five (5) bows and eleven (11) un-poisoned (emphasis court) for purposes of hunting.

6. As the application for amendment was allowed and charges were read and explained to the Appellant herein, this court deemed this latter Charge Sheet in respect of Count II to have been the relevant one for purposes of the Appeal herein.

7. Count I did not appear to have been amended in both Charge Sheets.The particulars of Count I were as follows :-

“On the 29th day of August 2014 at around 1700 hrs at Wamasa area of Taru ranch within Taita Taveta County was found in possession of wildlife trophy (tail) of an animal namely monitor lizard without a permit.

COUNT II

On the 29th August 2014 at around 1700 hrs at Wamasa area of Taru ranch within Taita Taveta County was found in possession of hunting apparatus namely one (1) slasher, five (5) bows and eleven (11) un-poisoned arrows for the purposes of hunting.

8. Being dissatisfied with the said judgment, on 26th January 2014, the Appellant filed a Petition of Appeal. The Mitigation Grounds of Appeal were as follows:-

1. THAT he was a first offender and a layman pertaining to the issues of law.

2. THAT he was a poor man and the sole breadwinner of his family.

3. THAT he promised not to repeat the same mistake again.

9. When the matter came up in court on 27th July 2016, this court directed the Appellant to file and serve his Written Submissions. Instead of doing so, he filed fresh Mitigation Grounds of Appealon 13th September 2016.  These were similar to the initial Mitigation Grounds of Appeal with an addition that two (2) of his daughters were in Secondary School and he was the one who was paying their school fees.

10. On the said date of 13th September 2013, this court gave him an opportunity to remedy the situation by filing Written Submissions on any legal issues he may have wanted to raise but he insisted on proceeding with the said Mitigation Grounds of Appeal as drafted. The State filed its Written Submissions dated 27th September 2016 on 28th September 2016.

11. When the matter came up in court on the same date, both the Appellant and the State asked this court to deliver its Judgment based on their respective Written Submissions. The Judgment herein is therefore based on the said Written Submissions.

LEGAL ANALYSIS

12. As can be seen from the Appellant’s Mitigation Grounds of Appeal, he was not challenging the fact that the Prosecution had proved its case to the required standard. Rather, his contention was that he was a reformed man and he would not repeat the mistake again.

13. Unfortunately, the power to order his release on account of his having reformed or the fact that he needed to take care of his two (2) daughters was best directed to the Committee of Community Services Orders to consider his grounds.

14. The jurisdiction of an appellate superior court is limited to analysing the evidence that has been adduced in a trial court afresh with a view to establishing whether or not such trial court erred on fact or law or both and/or considering the legality and extent of a sentence where an accused person has pleaded guilty to an offence.

15. The admission of the two (2) Counts that had been preferred against him was reflective of the Appellant’s guilt. No value then would be added in analysing the evidence that was adduced during trial as this court is limited to looking at the extent and legality of the sentence that he was given only.

16. Section 348 of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates as follows:-

“No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.”

17. As the Appellant herein pleaded guilty to both Counts and only filed Mitigation Grounds of Appeal that were obviously misplaced, this court could have rejected his appeal outright as the right forum would have been for him to have directed his prayers to the Committee of Community Services Order as mentioned hereinabove.

18. However, this court took cognisance of the fact that this was a pro setrial. The Appellant represented himself during the trial in the Trial Court and as he rightly contended, he was a lay man on issues pertaining to the law. Notably, a court has inherent powers to make such orders are as necessary for the ends of justice and to prevent the abuse the process of court.

19. This court therefore found that it was in the interests of justice for it to interrogate whether or not the grounds the Appellant had advanced were good, sufficient or adequate reasons to persuade it to set aside the aforesaid sentenceon account of its extent or legality. It addressed the extent and legality of the sentences of the respective Counts under distinct and separate grounds shown hereinbelow.

I. COUNT I

20. Section 95 of the said Wildlife Conservation and Management Act(hereinafter referred to as “the Act”) stipulates as follows:-

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

21. Section 3of theAct defines a “trophy” as:-

“any wild species alive or dead and any bone, claw, egg, feather, hair, hoof, skin, tooth, tusk or other durable portion whatsoever of that animal whether processed, added to or changed by the work of man or not which is recognizable as such.”

22. The Appellant was not found in possession of a whole wild species as envisaged in the definition of a “trophy” but rather it was a part thereof. In an article in https://uanews.arizona.edu/story/researchers-find-regenerated-lizard-tails-are-different-from-originals titled “Researchers find regenerated lizard tails are different from Originals” by Al Bravo College of Medicine- Phoenix of 9th October 2012, it has been indicated that original lizard tails have vertebrae while regenerated tails have cartilage. In https://en.wikipedia.org/wiki/Lizard, it is also indicated that a regenerate tail of a lizard will contain cartilage rather than bone.

23. From the above literature, it was reasonable to conclude that the tail the Accused was found in possession of had bone if it was not regenerated or cartilage if it had been regenerated thus bringing it within the context of the definition of a wildlife trophy found in Section 3 of the Act.

24. The aspect of the portion of the species being durablewas not a relevant issue herein as the bone or cartilage in the tail and the skin thereon were in the first instant,considered as trophiesunder the Act.

25. In addition, the tail still fell under the definition of “wildlife” which in Section 3 of the Act is defined as:-

“any wild and indigenous animal, plant or microorganism or parts thereof(emphasis court)within its constituent habitat or ecosystem on land or in water, as well as species that have been introduced into or established in Kenya.”

26. Consequently, as the tail of the monitor lizard was for all purposes and intent wildlife trophy, this court therefore wholly concurred with the State’s submission that the Learned Trial Magistrate did not err in when he fined the Appellant Kshs 1,000,000/= or in default sentenced him to serve five (5) years imprisonment.

27. The Learned Trial Magistrate had the option of fining and sentencing the Appellant but he meted upon him a more lenient penalty. For the reason that the extent and legality of the penalty that was meted on the Appellant in respect of Count I was proper, this court could and did not interfere with the same.

28. Although the issue of whether or not the monitor lizard had been found in possession thereof was an endangered or threatened species, this court found it necessary to render its direction herein in view of the manner in which Count I had been drafted.

29. Notably, if the Appellant herein had been charged under the provisions of Section 92 of the Act, which relates to committing an offence in respect of endangered or threatened species or in respect of any trophy of that endangered or threatened species wherein the penalty upon conviction an accused person would be liable to a fine of not less than twenty million shillings or imprisonment for life or to both fine and imprisonment, then the charge ought to have specifically indicated that he was dealing with a Savannah Monitor Lizard.

30. Failure to have expressly provided for the type of lizard would have made the Charge Sheet defective as there are different types of monitor lizards and under Sixth Schedule of the Act, only the Savannah Monitor Lizard is listed amongst critically endangered, vulnerable, nearly threatened and protected species. The Prosecution is therefore requested to note this when drafting future charge sheets.

II .COUNT II

31. Appreciably, this court took upon itself to consider the extent and legality of the sentences for both Counts as questions were raised in its mind whether indeed the Appellant had committed an offence under Section 102(1)(f)of the Act. Indeed, being a layman, this court did not expect him to have had the knowledge of challenge the legality of Count II.

32. The said Section provides as follows:-

“Any person who conveys into a protected area or is found within a protected area in possession of any firearm, ammunition, arrow, spear, snare, trap or similar device without authorization commits an offence and is liable on conviction to a fine of not less than two hundred thousand shillings or to imprisonment of not less than two (2) years or to both fine and imprisonment.”

33. It is worthy of note that the facts that were read to the Appellant after he pleaded guilty to the both Counts did not disclose any offence under the aforesaid provision. The facts appeared to have related to Count I only.

34. The facts were as follows:-

“On 2/8/014(sic), at 5. 00 pm the KWS Rangers were on patrol at Wamasa. They arrested the accused who had a tail for blue kenge, one slasher, 5 bows and 11 unpoisoned arrows. He was taken to Mackinon road police post and on 30/8/014(sic),he was taken to Voi Police Station where he was later charged.”

35. There was no indication whatsoever that the Appellant was arrested in a protected area. In fact, the facts only stated that KWS rangers were on patrol in Wamasa.

36. A “protected area” is defined in Section 3 of the Act as follows:-

“a clearly defined geographical space, recognized, dedicated and managed through legal or other effective means, to achieve long-term conservation of nature with associated ecosystem services and cultural values.”

37. Neither Wamasa nor Taru Ranch were defined as protected areas either by way of gazettement in accordance with the Act or in the Eleventh Schedule of the said Act.

38. It was therefore the considered opinion of this that court that the fine of Kshs 200,000/= and the default of serving two (2) years imprisonment was illegal and it had no legal basis.

CONCLUSION

39. In concluding, this court wishes to emphasise the importance of trial court indicating how sentences are to run, that is, whether concurrently or consecutively to give direction to the prison authorities on the date of release of convicts. It is common practise that where the direction has not been given, prison authorities tend to adopt the running of sentences consecutively even where the trial courts intended that the same be concurrent. The court felt compelled to render itself on this issue as the judgment by the Learned Trial Magistrate was silent as to how the sentences he had given were to run in case of default of payment of the fines for the two Counts.

DISPOSITION

40. Bearing in mind the Mitigation of Grounds of Appeal that the Appellant filed, this court found the Appellant’s Appeal that was lodged on 26th January 2014 not to have been successful. However, it found and held that it was in the interests of justice that it sets aside the fine of Kshs 200,000/= and the default imprisonment of two (2) years in respect of Count II on account of its illegality. The same is hereby set aside. However, the conviction and sentence in respect of Count I is hereby was upheld as the extent and legality of the same was proper.

41. It is so ordered.

DATED and DELIVERED at VOI this 7thday of November2016

J. KAMAU

JUDGE

In the presence of:-

Makupa Ndege- Appellant

Miss Anyumba for State

Ruth Kituva– Court Clerk