Mutambuki v Republic [2022] KEHC 10264 (KLR)

Mutambuki v Republic (Criminal Appeal 40 of 2020) [2022] KEHC 10264 (KLR) (12 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10264 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal 40 of 2020

MW Muigai, J

May 12, 2022

Between

Mwangangi Mutambuki

Appellant

and

Republic

Respondent

Judgment

COURT RECORD 1. The Appellant was charged with two counts of offences under the Wildlife Conservation and Management Act 2012.

2. In Count 1, the Appellant was charged with dealing in Wildlife Trophies contrary to section 84(1) as read together with Section 95 of the Wildlife Management and Conservation Act, 2013.

3. The particulars offence were that on February 13, 2018 at around 22. 24hours at Engen Petrol station Kyumvi Market, Mathathani location within Machakos County was found dealing in two pieces of elephant Tusks weighing approximately 4kgs and two leopard skins all with a street value of Kshs 500,000 (five hundred thousand only) which he was transporting using a green King’s collection travel bag without permit.

4. In count 2, he was charged with possession of wildlife trophies contrary to Section 95 of the Wildlife and Conservation Act, 2013.

5. The Particulars of the Offence were that on 13th February 2018 at around 2224 hours at Engen Petrol station Kyumvi Township along Mombasa- Nairobi highway within Machakos County was found in possession two pieces of elephant tusks weighing approximately 4kgs and two leopard skins which you were carrying using a green King’s collection travel bag without permit.

6. The Appellant pleaded not guilty to both counts and was granted bond of Kshs 250,000 with a surety.

Prosecution Case 7. The matter proceeded to hearing with the Prosecution calling five witnesses.

8. PW1 was No 9985 Benard Yegon a KWS Ranger based at Kajiado KWS Station whole role is to investigate wildlife crimes and make arrests. He opined that on February 13, 2018 he was in in house at around 6pm when his In Charge Corporal Justin Kinyua went to him and asked him to prepare for work, which he did and at 7pm they left Kajiado and were at Kyumbi Junction at around 8. 30pm.

9. They were informed by Corporal Kinyua that there was a person coming from Kitui heading to Nairobi via Machakos ferrying two elephant tusks and two leopard skins, information he said they received from intelligence reports. They laid their ambush at Engen police station and Abdullahi their colleague told them that the person had arrived and was wearing a black suit, white shirt and stripped red and white tie.

10. PW1 and Justin Kinyua approached the man who was holding a green bag, Kinyua introduced them and asked to inspect the bag. They detained him and Abdulahi came and inspected the green bag whose zipper was not fully closed which had a bag covering inside written Mama Maize flour.’ He averred that inside the bag were two sacks, a white one that had two elephant tusks and a blue one that had two Leopard skins. An inventory was prepared by Abdulahi that they all signed including the Appellant. They took the accused person to the police station and was booked under OB number 23 of 13th February 2018, recorded his statement and left him in the cells. He identified the two tusks, two leopard sins and the inventory. He identified the accused on the dock and indicated that it was his 2nd time seeing him.

11. Upon Cross examination, he stated that they arrested the accused person at around 10pm and he had a green bag which had two sacks with the exhibits that was left at the police station. No photograph of the Appellant were taken. He denied beating the Appellant and indicated that at the police station they would not have received him if he had been beaten. He stated that they found the Appellant at Engen Petrol Station holding a green bag, introduced themselves to him and at first he was jittery but complied and he signed the inventory without being forced. He stated that there were many people at Kyumbi and Engen but they had his clothing details from when he left Kitui and that their sources are protected. He contended that the inventory indicated he knew what he was found with. He also said that this was the second time he was seeing the accused person and that he could not fix a stranger.

12. In re- examination, he said no one assaulted the Appellant and they do not reveal their informers.

13. PW2 Corporal Justin Kinyua, an investigation officer dealing in detection and prevention of wildlife crimes based at Kajiado Investigation station was PW2. He said that on February 13, 2018at 3pm he was with Abdulahi Abdi, Yegon, Salome and Driver Mwende and around 1740 hours received intelligence that there was a man suspected to be in possession of wildlife products was in the process of taking them to Machakos for sale from Kitui. He informed Yegon and Abdulahi and together with driver Muteti they left at 1900 hours from Machakos where they intended to make a follow up and arrived at 2030 hours and took strategic positions around the centre.

14. At 2200 hours Abdulahi alerted them of a person who was holding a green bag. The man was wearing a black suit, white shirt and stripped red and white tie. Together with Abdulahi and Yegon, they approached him, introduced themselves as KWS officers and he requested to allow them to search his bag. He initially resisted but shortly thereafter agreed. He said the bag was a green bag pack that was wrapped and one could see a polythene bag written “mama maize meal” inside it was a white sack that had two elephant tusks wrapped and a blue sack that had 2 leopard skins.

15. They arrested him and an inventory was prepared by Abdulahi that they all signed including the appellant. The Appellant gave them his Identity card number as 22760204 and they recorded his Identity card and bank details for identification. He was taken to Kyumbi Police station and booked under OB number 23 of February 13, 2018. He identified the accused on the dock and indicated that he did not know the Appellant before.

16. In Cross- examination, he said the Appellant was arrested around 2200 hours but his statement says 2224 hours and no picture of him was taken. He indicated that they had an inventory of the items recovered from him and the Appellant was not forced to sign it. He said they relied on intelligence reports and arrested him. He stated that the Appellant had a black suit then and they did not know him. There was no re- examination.

17. PW3 Abdulahi Abdi Mohamed, a KWS Ranger and Investigation officer stationed at Kajiado County Headquarters stated that on 13th February 2018 at 6pm while in the station he was called by PW2 who informed him that he had received an intelligence report of a person in possession of wildlife trophy and was travelling from Kitui to Kyumbi on transit to Mombasa and asked him to accompany him to go and secure the suspect.

18. Together with Justin, Benard Yegon and Muteti the driver, they left for Kyumbi and while on the way received description of the person carrying the ivory as a man wearing a black suit, white shirt and a checked tie carrying a green bag. They reached at around 1940 to 2000hours and laid an ambush at Engen petrol station. The Appellant was cited at the entrance of the petrol station at 10 pm when he saw a man carrying a green bad while in a suit passing ahead of the petrol station and he alerted PW2 who was seated on the other side. They all approached the man, introduced themselves as KWS officers and asked to see what was in the bag but he did not comply. PW2 and PW1 held him as he secured the bag written “Kings collection” and found a nylon bag written “mama maize”. He prepared an inventory on a piece of paper there and then that the Appellant signed and PW1 and PW2 witnessed. They took him to Kyumbi police station where they recorded their statements and the Appellant was charged. He said the two elephant tusks and two leopard skins were in a bag. He said this was the 2nd time he was seeing the Appellant and he did not know him. He identified the Appellant in the dock.

19. There was no cross examination.

20. PW1 and PW2 were recalled for cross-examination by the Defence Counsel.

21. PW1 further testified that the four of them left Kajiado at 7. 00pm. He averred that some animals are marked and those are for the research side while others are not marked. He stated that it is possible to connect the tusk to any elephant and he was not the one who received the intelligence report. He indicated that they have a KWS station in Machakos and wasn’t sure if they had a station in Kitui or Mutomo. There was no re-examination.

22. PW2 further testified that he got the intelligence tip off at 5. 40pm while at the station with his colleagues that a suspect had wildlife trophies and was headed to Kyumbi junction to sell them. He stated that there is a KWS station in Machakos, none in Athi River and he did not know if they had a station in Kitui. Further, that they normally respond to any calls in respect of wildlife crime and they are allowed to work anywhere. He said he did not know what PW1 and PW3 told the court and that they found the exhibits with the Appellant whom he confirmed signed the inventory. He also reiterated that the Appellant was escorted to Kyumbi Police Station and booked. It was his evidence that he did not know where the tusks and skins were obtained from which animal.

23. In Re-examination, he stated that the Appellant as arrested at Machakos –Nairobi junction at Engen Petrol station.

24. PW4 was Esther Nguta, a researcher scientist from National Museums of Kenya stated that on March 6, 2018, PC Justus Mutua brought 4 exhibits for her to identify. She identified exhibit X1 skins as leopard skins as they had shabby soft fur which was match black having brown spots engulfed with the black rosette and the face drips and under berry were black spots characteristics unique to leopard skin.

25. She identified X2 tusks from an elephant as they had characteristics of an elephant; they had a diamond shade granular that were visible at distal ends when viewed under magnification. She concluded that they could be from the same elephant as they compared very well in terms of morphology. She also compared the exhibits to the collection at the museum and prepared a report dated March 6, 2018and produced it in court.

26. Upon Cross examination, she stated that leopards are only one species and could be available from other countries. She was not able to identify when the leopard had been skinned but noted the skins that they appeared to be preserved. Also, the tusks had taken time since removal and that the exhibits do not go to the museum upon conclusion of a case.

27. PW5, Corporal Justus Mulwa of Kyumbi Police station Crime branch office stated that on February 13, 2018at 7pm while on duty, KWS officers went to the station and informed them that they were carrying out investigations in their jurisdiction and the OCS gave the go ahead. On 14th February 2018, the OCS informed him that the Appellant had been arrested with two elephant tusks and two leopard skins packed into two sacks that had been inserted into a bag by KWS officers who had recorded their statements at 10. 30pm. He prepared the exhibit memo.

28. It was his testimony that PW3 escorted the exhibits for analysis on March 5, 2018and he collected the signed report that confirmed the skins were for a leopard and the tusks for an elephant on March 7, 2018. He interrogated the Appellant for a permit to transact game trophies but he did not have any. He alleged to have been in the company of other people who had the bag. Upon inquiry, he found out the items recovered had a street value of Kshs. 500,000. He identified the Appellant at the dock and also stated that the KWS officers had posed as buyers.

29. In cross examination, he stated that the two leopard skins are in the same condition as on the date when he first saw them and that the bag was the same size as he saw it in February 2018. He stated that he found the blue sack with tusks and the white sack with leopard skins in the travelling bag. Also, that the peak of the elephant tusk was protruding from the bag.

30. In re - examination, he stated that the color of the bag is slightly faded and the two skins were dirty as at the time of arrest.

31. The court placed the accused on his Defence and he chose to give sworn evidence and call a witness.

Defence Hearing 32. The Appellant told the court that he works with Kitui County Government as a driver, lives at Makutano junction with his wife and on February 13, 2018at 5. 00pm he planned to travel from Kitui to Machakos after work. He went to the bus stop in Kitui town and boarded a saloon car that wanted passengers going to Machakos and indicated that he wanted to be dropped at Kyumbi junction. They were four passengers. He did not know the driver but said he was familiar as he used to see him in Kitui town. They stopped at Katangi for the driver to buy credit and he called someone and they agreed to meet at Kyumbi and Engen hotel.

33. They reached Kyumbi, at 10. 00pm, they stopped at Engen Petrol and he paid the driver who then offered to buy them tea at Engen. He did not have a bag but the driver had a bag which they went with to the hotel. He stood outside the hotel as the driver went to look for change where he was surrounded and arrested. He saw the driver who was 5 meters away from him board a bus and leave the scene leaving the motor vehicle at the scene. He said he was not allowed to talk and was just arrested and not told the reasons for his arrest.

34. He said the driver was in a black suit. Further, that when he was arrested, they asked him whether he was the owner of the saloon car. He contended that the officers introduced themselves as KWS officers and he told them that the owner of the bag was the driver and nothing was done about this information.

35. He said that the bag had two elephant tusks and leopard skins. He was cuffed and taken to Kyumbi police station. He further contended that the bag and tusks in court were not the same as the ones he saw at Engen petrol station and the police station. He did not know where the driver used to work and he stated that he was in a black suit and a tie and the driver was also in a black suit but could not remember whether he had a tie. He stated that he signed an inventory but did not know the purpose.

36. When he was cross examined, he stated that he was in a black suit, he signed the inventory, he was going to Kyumbi from Kitui and was arrested at Engen petrol station .He could not recall the registration number of the vehicle he had boarded and was not issued with a ticket. He did not know why the driver did not look for change in the hotel. He contended that he was standing next to the motor vehicle when he was arrested.

37. DW2 was Paul Kimuli, a mason from Kyumbi. He stated that on March 13, 2018at 10. 00pm while taking tea at Engen Café, he saw the Appellant who was wearing a black suit come out of a personal motor vehicle as one of the three passengers who were in it. They entered the hotel sat and took tea. The driver was also in a black suit. He contended that the Appellant went with the driver who was carrying a bag that he placed inside the boot. He further contended that the driver left the scene and the Appellant was surrounded by people who looked like police officers.

38. In cross examination, he stated that he had nothing to prove he was at Engen and of the three people who came out of the motor vehicle, he only knew the Appellant. He opined that the driver left the ‘motor vehicle with the bag’ and he did not know the owner of the bag.

39. When cross examined by the court, he stated that the driver came out with a bag measuring 1 and a half feet and he did not see where it was pulled from.

Trial Court Judgment 40. The Trial court identified four issues that it considered. It found that the evidence of the items being elephant tusks and leopard skins had not been challenged and therefore found that the Appellant was dealing with Wildlife trophies.

41. The court found that the Appellant did not have a permit and thus handling the trophies he was found with was an offence.

42. The Trial court found that the three prosecution witnesses explained how they acted on information and saw the Appellant with the bag. The Trial Court also noted that DW2 was referring to an incident that took place on March 23, 2018, the accused person did not call his wife whom he alleged he was going to see and therefore found the Appellant. The Court found that due to the contradiction, DW2’s testimony did not add value to the Appellant’s case. After considering the evidence before it, it found that no doubt had been created and found the accused person guilty on both counts.

43. A chance at mitigation was given and the Appellant was sentenced to pay a fine of Kshs 300,000 for each count or in default 12 months imprisonment to run concurrently.

The Appeal 44. Being dissatisfied by this judgement and sentence, the Appellant filed a Petition of Appeal amended on October 19, 2021seeking to have the appeal allowed, conviction quashed and set aside on the following grounds;a)Thatthe learned Magistrate erred in law and in fact when he convicted the appellant on account of defective chargesb)Thatthe learned Magistrate erred in law and in fact when he heavily relied on the information of the informer PW1, PW2 and PW3 when in fact the information was questionable and ought to have been supported by independent evidence.c)Thatthe learned Magistrate erred in law and in fact when he found that the Appellant was found in possession of elephant tusks and leopard skins when in fact there was no credible evidence to sustain that finding.

Appellant’s Submissions 45. The Appellant filed submissions dated February 16, 2022 in which he opined that the court convicted him on defective charges. He opined that the prosecution witness did not dispute the fact that he was arrested from a private car and this was corroborated by DW2. He contended that the goods belonged to the driver who was let go by the Kenya Wildlife Service Rangers who arrested him. The charges were therefore defective according to him in that they did not safely put him in a state of being in possession and dealing with wildlife trophies. He contended that the driver was the informer and the charges were trumped up and fabricated. That the state did not give an explanation as to who had the motor vehicle neither why he was not a state witness if the items recovered were not connected to him.

46. He submitted that he is not said to have been in communication with anyone else, where he was to deliver the trophies, how he got to Engen petrol station and therefore he was just a fall guy set up by the alleged informer and the driver of the motor vehicle he was travelling by. He opined that the evidence of an informer was unsafe and uncorroborated.

47. He contended that in his evidence he had said that he and his witness had stated that he alighted from the car and was arrested and further that the green bag was removed from the private car and planted on the appellant. That he did not know the contents until he was arrested and taken to Kyumvi police station and forced him to sign and inventory of the items found in the bag.

48. While relying on the case of Abdi Ibrahim Harun vs Republic [2018] eKLR he contended that there were discrepancies as to who exactly had possession of the items, where they were found, whether he knew the contents of the bag and therefore possession was not proven.

Respondent Submissions 49. The Respondent filed submissions dated November 30, 2021 and in asking the court not to disturb the sentence and the conviction, he submitted on three grounds that he termed as the ingredients for the offence. As to whether the Appellant was in possession of the trophies, he cited that Black’s Law dictionary definition of possession as“the detention and control or manual or ideal custody of anything which may be the subject of property, for ones use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all others.”

50. He submitted that the Appellant was found at Engen Petrol station with a bag containing two elephant tusks and 2 leopard skins and he was identified by the witnesses as the person arrested in possession of those items.

51. While relying on the definition of a trophy in the Wildlife Management and Conservation Act and the testimony of PW4, he submitted that the items recovered were trophies.

52. Counsel also submitted that the Appellant did not have a license and he did not indicate the same during the hearing and therefore was not licensed,

53. On the charge sheet being defective, Counsel submitted in the negative and stated that in both counts, the offence, the particulars of the offence and the penalty were set out clearly.

Determination 54. The Court considered the Petition for Appeal, the submissions thereto and the Trial Court file and the following issues are for determination;a)Whether the charge sheet was defectiveb)Whether the Appellant was found in possession of wildlife trophiesc)Whether the Appellant was dealing in wildlife trophies

55. Noting that this is a first Appeal, I will begin by restating the observation in I will start by restating what was said in Okeno v Republic [1972] EA 32 where the Court of Appeal set out the duties of a first appellate court as follows:“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala v Republic (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post [1958] E.A 424. ”

56. The definition of a non-defective/proper/legal charge sheet is found in our Criminal Procedure Code under Section 134 of the Criminal Procedure Code which reads as follows:“‘’Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged’’.

57. Section 135 (1) & (2) of the Criminal Procedure Code provides for instances where Joinder of counts in charge or information is allowed. They read as follows:“1. ‘’Any offences, whether felonies or misdemeanors, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.2. Where more than one offence is charged in a charge or information, a description of each offence so charged shall be set out in a separate paragraph of the charge or information called a count’’.

58. In the case of Isaac Omambia v Republic 1995 EKLR the court stated as follows:“In the regard it is pertinent to draw attention to the following provisions of 134 of the Criminal Procedure Code which makes particulars of the charges. Every charge or information shall contain and shall be supportive if it contains a statute of the specific offence or offences with which the accused person is charged together with such particulars on may be necessary for giving reasonable information as to the nature of the offence”

59. In the instant case the appellant was charged with the offence of being in possession of wildlife trophy contrary to Section 84 (1) as read together with section 95 of the Wildlife Conservation and Management Act 2013 which provides 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 a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.’’

60. Section 84 ( 1) of the Act provides that ;“No person shall operate as a trophy trophies dealer without a license issued by the Service.”

61. Duplicity of charges would occur where one is charged with more than one offence in one charge.

62. In the first count it appears that the offence is dealing with wildlife trophies without authority. The offence of not having a permit is partly described in Section 84 (1) of the Act and further described in Section 95 of the Act and which lays down the punishment.

63. Section 95 of the Wildlife Conservation and Management Act, 2013, provides for a description of the offence of being found in possession or dealing with wildlife trophies and a sentence of a fine of not less than one million shillings or imprisonment for a term of not less than five years or both.

64. The 2nd count deals mainly with being found in possession of the wildlife trophies and metes out the punishment.

65. I therefore find that there was no duplicity of charges and thus the charge sheet was not defective.

66. From section 95 of the Wildlife Conservation and Management Act, 2013, the elements that must be proven to sustain a charge are;a.Proof that the accused was in possession of a trophy;b.Proof that the items in question are game trophies; andc.Proof that the accused lacked a certificate of ownership

67. Possession is defined in possession is defined under Section 4 of the Penal Code as:(a)be in possession of or to have possession includes having in one's own personal possession but also knowingly having anything in the actual possession custody of any other person or having anything in any place whether belonging to or recapped by oneself or of any other person.(b)if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody of possession it shall be denied and taken to be in the custody and possession of each and all of them.

63. Possession is defined in Black’s Law Dictionary as“The detention and control, or manual or ideal custody, of anything which may be the subject of property, for ones use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. that condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.Includes; Not only having in one’s own personal possession, but also knowingly having anything in the actual possession or custody of any other person, or having anything in any place (whether belonging to or occupied by oneself or not) for the use or benefit of oneself or of any other person;If there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody or possession it shall be deemed and taken to be in the custody and possession of each and all of them.”

68. The issue of possession was also discussed in the case of Jean Wanjala Songoi and Patrick Manyola versus Republic Criminal Appeal No 100 of 2014 where the court stated as follows;“……. possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others. In this case, that aspect of the offences was not established beyond reasonable doubt against the appellant. ‘’

69. The Court of Appeal in the case of Simon Kangethe -Vs- Republic [2014] eKLR restated that:-“Section 111 of the Evidence Act provides that: existence of circumstances bringing the case within any exception or exemption from, or qualification to, the operation of the law creating the offence with which he is charged and the burden of proving any fact especially within the knowledge of such person is upon him…”

70. The manner in which the trophies were found in possession of the Appellant is that they were in his hand. He was carrying the green bag according to PW1, PW2 and PW3 who are eye witnesses. He denies being the owner of the bag but instead alleged they belong to an unknown driver who was just 5 meters away from him.

71. From the evidence the Appellant was in possession of the green bag and was aware of the contents of the bag. PW1 and PW2 all stated that they introduced themselves and at first the Appellant was resistant but thereafter complied and PW3 he secured the bag from him and opened it. The evidence is also corroborated by the Appellant who confirms that the officers introduced themselves as being from KWS.

72. It is not clear from the Appellant’s testimony where the bag was found and his testimony is not straightforward. He indicates that they arrived at Engen Petrol Station, went to the hotel to take tea and the driver had a bag and as he was waiting for his change from the driver while standing outside the hotel, he was surrounded and arrested.

73. Surprisingly, the driver he says was the owner of the bag was just 5 metres away from him but he did not shout or point or give any signal to the officers to indicate that the bag was not his and point at the owner whom he says was not far away. This testimony does not add up.

74. The 2nd Defence Witness said that the bag was found in the boot of the car. The evidence he adduced was not corroborated by any of the testimonies before the Court. It appears as if DW2 was talking about a different day and was not at the scene on the date in question. He referred to about 23rd of March 2018 while the incident took place on 13th of February 2018 therefore his testimony cannot be relied upon. The Court agrees with the Trial Court to that extent. It was also not clear from the record how the 2nd Defense Witness knew the Appellant, why and what he was doing at the Engen Petrol Station and coincidentally when the accused person was there of all the people at the Engen Petrol Station why his interest was drawn to the incident yet he did not record a statement at the Police Station thereafter. There is also no other fact or evidence to confirm that he was at the scene on the day in question except his testimony.

75. The totality of the evidence on record strongly points at the Appellant being the one who was carrying the green bag. He was in physical possession of the bag. His demeanor also indicates that he had knowledge of the contents of the bag. He has not explained why he initially resisted giving out the bag to the officers.

76. The car involved no one referred to its Registration numbers nothing on record confirms that the motor vehicle was being used to transport the trophies and/or that the trophies were found in the vehicle. There is nothing beyond indicating that there was car.

77. The description allegedly given to PW2 of what the Appellant was wearing and what PW1 and PW4 found the Appellant wearing were a match. The Appellant also admitted to being in a black suit, a white shirt and a tie. He also stated that the driver has a black suit but he was not sure whether he was wearing a tie or not.

78. In the absence of an explanation from the Appellant as to how he came to be in possession of the bag and how he knew the tusks and skins produced in court were not the same as the ones he saw at the police station and the Petrol Station confirms that he knew of the trophies more that he let on.

79. On the second element, Section 2 of the Act defines a “trophy” as follows:“Means 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.”

80. The evidence of PW4, an expert witness confirmed that the exhibits presented to her were trophies. Her report dated 6th of March 2018 confirmed the same. To my mind the prosecution proved this element of the charged beyond reasonable doubt.

81. On the element of having a license or a permit, it is clear from the evidence that the Appellant did not have a permit.

82. The Court noted that the Appellant tried to introduce new evidence through his submissions. For instance he said that he had stated that he alighted from the car and was arrested and further that the green bag was removed from the private car and planted on the appellant. That he did not know the contents until he was arrested and taken to Kyumbi Police Station and they forced him to sign an inventory. This is not the evidence before the Trial Court as shown by the Court record, this evidence that was not placed before the Trial Court. Therefore this Court will not consider such evidence as this is an Appellate Court evaluating only evidence presented before the Trial Court.

83. This Court finds that the evidence adduced by Prosecution witnesses PW 1,2, & 3 who on a tip off laid an ambush and arrested the Appellant at Engen Petrol Station and found him in possession of game trophy in a bag and thereafter took him to the Police Station corroborates each other evidence.

84. There is no evidence on record that any of the witnesses knew the Appellant before then and held any grudge against him so as to pick only on him and plant the exhibits and then arrest him. Instead they drove all the way from their station of work based on a tipoff and waited at the Petrol station for anyone who fitted the description they were given by the Informer. From the totality of the evidence I find the conviction was safe.

85. As regards setting aside of the conviction, I note that the only sentence provided for under Section 95 of the Wildlife Conservation and Management Act 2013 under which the Appellant was charged, is a fine of not less than one million shillings or imprisonment for a term of not less than five (5) years or to both such imprisonment and fine. The Trial Court sentenced below what the law provides.

86. Section 354 of Criminal Procedure Code sets out the powers of High Court as follows;(1)At the hearing of the appeal the appellant or his advocate may address the court in support of the particulars set out in the petition of appeal and the respondent or his advocate may then address the Court.(a)in an appeal from a conviction—(b)(i)reverse the finding and sentence, and acquit or discharge the accused, or order him to be tried by a court of competent jurisdiction; or(c) (ii)alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence; or(d) (iii)with or without a reduction or increase and with or without altering the finding, alter the nature of the sentence;(e)(6) Nothing in subsection (1) shall empower the High Court to impose a greater sentence than might have been imposed by the court which tried the case.

87. By virtue of Section 354 (6) the Appellate Court will not enhance sentence. The Appeal is dismissed and the conviction and sentence upheld. It is so ordered.

DELIVERED SIGNED DATED IN OPEN COURT IN MACHAKOS ON 12THMAY 2012 (VIRTUAL CONFERENCE).M. W. MUIGAIJUDGE