(Being an appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. E.K Usui (CM) delivered on the 8 th August, 2024)
The appellant was charged with two counts.
The first count is of dealing with wildlife trophy contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars were that on the 29 th day of October, 2019 at around 1730hrs at Madunguni area within Kilifi County at GPS Co-ordinate 37M 0609117 UTM 9649623 was found dealing in 6 pieces of elephant tusk to with 40kgs with street value of Kshs. 4,000,000/= without a permit from the Director General of Kenya Wildlife Services.
The second count is of being in possession of wildlife trophy contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013. The particulars were that on the 29 th day of October, 2019 at around 1730hrs at Madunguni area within Kilifi County at GPS co-ordinate 37M 0609117 UTM 9649623 was found in possession of 6 pieces of elephant tusk to wit 40kgs with street value of Kshs. 4,000,000/= without a permit from the Director General of Kenya Wildlife Services.
The appellant pleaded not guilty to the charges when he was arraigned in court. The prosecution called four (4) witnesses.
The prosecution case in summary is that PW1 Evans Kibet a KWS Ranger was at Malindi Marine Park when he was informed by Ranger Sang Maiyo that there was information that there was someone at Madunguni area who was in possession of elephant tusks which he was planning to sell. Together with Major Maiyo, Haman Rama and Mwanzo went to the scene. Together with Major Maiyo they took a motor bike to the scene whereas Haman Rama and Mwanzo used a vehicle. He rode the motorcycle behind the vehicle. When they reached at Madunguni the informer entered the vehicle. They took off and the vehicle stopped. Rama alighted together with the informer and entered the bushes. He also stopped the motorcycle. After a few minutes Rama sent him a message that they were with the suspects weighing the tusks. Together with Major Maiyo they approached the vehicle and saw two persons carrying some things. They were directed to stop by Major Mayio but one of them ran away. They arrested one of the persons and found him in possession of elephant tusks. The suspect and the recoveries were taken to Marine Park. He saw the tusks at the marine park. He said the person who was arrested is the appellant.
In cross-examination he said the appellant emerged carrying tusks with another person who ran away. He denied suggestion by the appellant that the appellant was a passerby and maintained that the appellant was found carrying the tusks.
PW2 Goffrey Maiyo accompanied PW1 to the scene after getting information from Rama that there were suspects planning to sell elephant tusks. They apprehended the appellant who was among the suspect. The other suspect escaped. They searched the sacks the appellant had and found six (6) pieces of ivory tusks. They took the suspect to Malindi. An inventory of the recoveries was prepared which he signed together with PW1, Rama and the appellant. The inventory was identified in court and marked MFI1.
PW3 Haman Rama from KWS testified that he got intelligence information that there were two people in Marafa area who were in possession of 200kgs of elephant tusks and were planning to sell the same. He called the telephone number he was given by the informer to negotiate with the sellers of the tusks. He informed his colleagues PW1 and PW2. They proceeded to the scene as directed by the suspects on phone in a motor vehicle with civilian number plates and a motorcycle. He said they met with the suspect who led them to where the elephant tusks were. There was someone who assisted the suspect in weighing the tusks and it was only 40kgs. The tusks were loaded in a motorcycle and taken where they had parked their vehicle. At the motor vehicle the officer who were in a motorcycle appeared and identified themselves. The appellant was arrested but his accomplice managed to escape. An inventory was prepared and signed by all. He produced the tusks and the inventory in court as exhibits. He also identified the exhibit memo forwarding the recovered tusks for analysis. He later received the report from the analyst.
In cross-examination he said the appellant got into their vehicle to led them to where the tusks were. He further said the appellant weighed the tusks with his accomplice and they walked back to the vehicle. His accomplice loaded the tusks on a motorcycle and took them where the vehicle was. At the scene where the vehicle was parked the appellant was arrested. His accomplice escaped. He denied knowing the name of the accomplice as Kazungu.
PW4 Jeremiah Phogon Koitolok a specialized in wildlife medicine was on 23 rd November, 2019 at Tsavo East Research Station when 6 pieces of elephant tusks were brought to him for analysis. He examined the same and concluded that they were elephant tusks and he prepared a report which he produced in court as exhibit.
The appellant when placed on defence by the trial court he gave unsworn testimony. He said he was summoned by his in-laws to Madunguni who is a chief. He asked him to fetch some palm trees for him and left. As he was there some people he did not know came chasing one Kazungu. They were unable to arrest him. They alleged that he was an accomplice to Kazungu and arrested him and took him to the police station even after denying the charges.
After the hearing of the case the trial magistrate found him guilty of the two counts and convicted him accordingly and subsequently sentenced him to serve 6 ½ years on each count with the sentence to run concurrently.
Dissatisfied with the conviction and sentence the appellant preferred this appeal to this court. The appellant filed memorandum of appeal raising the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in breach of Section 109 and 110 of the Evidence Act;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions by the prosecution in contravention of Section 163(1)(c) of the Evidence Act;
3. That the trial magistrate erred in law and facts by failing to consider that the documental exhibits by prosecution were unreliable;
4. That the learned trial magistrate erred in law and facts by failing to appreciate the negligence and ignorance of the police service unit.
The record further shows that the appellant filed a Notice of Motion seeking to amend his memorandum of appeal and the amended grounds of appeal be deemed to be duly filed and properly on record upon the grant of leave of the court. The record does not show whether leave to file the supplementary grounds of appeal was granted. The same having been filed without the leave of the court as provided for under Section 350(2)(i) of the Criminal Procedure Code shall not therefore be considered.
Both the appellant and the respondent filed written submissions. As I have indicated the appellant filed supplementary grounds of appeal without the leave of the court and as such the submissions in respect of the said grounds shall not be subject of the consideration in this judgment. The court will confine itself to the grounds raised in the initial grounds of appeal. Having stated so I have carefully perused and considered the submissions by both the appellant and the respondent and the case law cited. I shall refer to the said submissions where necessary in analyzing and determining whether the prosecution proved the charges as required.
This being a first appeal, this court is under duty to re-evaluate and reconsider the evidence adduced before the trial court and make its own conclusions. This must however be done keeping in mind that it did not have the advantage of observing the demeanor of the witnesses and hearing their evidence unlike the trial court. This principle was laid down in numerous decisions of the Court of Appeal among them the case of Kiilu & Another vs Republic (2005) 1 KLR 174 where the Court of Appeal stated as follows:
1. An Appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2. 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 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.
Further to the foregoing the legal burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save in a few exceptional circumstances expressly provided by the law. This position has been restated in numerous authorities. For instance, in the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal case and stated:
“…It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
The appellant was charged and convicted of the offence of dealing in wildlife trophy contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013 in the first count and being in possession of wildlife trophy contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013 in count two.
The charges the appellant faced are based on the provisions of Section 92 of the Wildlife Conservation and Management Act, 2013 which provides as follows:
“92 (1) A person who kills or injures, tortures or molest, or attempts to kill or injure, a critically endangered, or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment of not less than five years.
(2) A person who, without permit or exemption issued under this Act, deals in a wildlife trophy, of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment for noy less than seven years.
(3) Any person who, without permit or exemption under this Act, deals in a live wildlife species of any critically endangered or endangered species as specified in the Sixth Schedule or listed in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than three years.
(4) Any person without permit or exemption issued under this Act is in possession of any love wildlife species or trophy of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than five million or a term of imprisonment of not less than five years or both fine and imprisonment.
(5) Any person who without permit or exemption issued under thus Act, manufactures an item from a trophy of a critically endangered or endangered species specified under the Sixth Schedule or listed under CITES Appendix I without a permit or exemption issued under this Act, commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings or up to life imprisonment or both such fine and imprisonment.
The Sixth Schedule of the Act lists several national critically endangered, vulnerable, nearly threatened and protected species. Among the listed endangered species is Loxodonta Africana which is commonly the African elephant. In this case the evidence lead by the prosecution is that the appellant was found in possession of elephant tusk. Elephant is one of the animals listed under the Sixth Schedule as critically endangered species. As such the prosecution satisfied the court on the requirement under Section 92 of the Wildlife Conservation and Management Act, 2013.
The second issue which the prosecution ought to have satisfied is whether the alleged recovered items were wildlife trophy. PW4 testified before the trial court that he examined the six pieces of tusk expected to be of elephant. He confirmed that the same were actually elephant tusks. Trophy is defined under Section 3 of the Wildlife Conservation and Management Act, 2013 as follows:
“trophy” includes any bone, claw, egg, feather, hair, hoof, skin, tooth or tusk of an animal, and for any species of plant, any bark, branch, leaf, log, sip or extract and includes any other durable portion whatsoever of that animal or plant whether processed, added to or changed by the work of man or not, which is recognizable as such.
From the foregoing it is clear that what is alleged to have been recovered from the appellant was animal trophy as defined under Section 3 of the Act. The trial court therefore correctly made a finding that the items recovered were trophy as provided for under Section 92(2) of the Wildlife Conservation and Management Act, 2013.
The next issue for determination is whether the prosecution proved before the trial court whether the circumstances under which the appellant is alleged to have been found with the tusks amounted to dealing. Under Section 3 of the Wildlife Conservation and Management Act, to deal in wildlife trophy means:
a) To sell, purchase, distribute, barter, give, receive, administer, supply, or otherwise in any manner deal with a trophy or live species;
b) To cut, carve, polish, preserve, mount or otherwise prepare a trophy or live species;
c) To transport or convey a trophy or live species;
d) To be in possession of any trophy or live species with intent to supply to another; or
e) To do or offer to any act preparatory to, in furtherance of, or for the purpose of, an act specified above.
From the evidence adduced before the trial court it was not rebutted that PW1 received information from an informer who told him that there was someone in possession of elephant tusks which he was planning to sell. Together with PW2 and PW3 they posed as buyers. In the process they arrested the appellant who was in the company of another suspect who escaped. The appellant in his grounds and submissions faulted the trial court for relying on contradictory evidence of the prosecution witnesses. He alleged there were contradictions as to the person who entered the house. According to him the evidence of PW1, PW2 and PW3 was contradictory as to the person who joined them when the went lay ambush. He alleged that PW1 and PW2 contradicted PW3 as to the person who joined them with PW1 and PW2 stating that the person who joined them was the informer whereas PW3 stated that it was the appellant. For the foregoing he submitted that the evidence of the three prosecution witnesses cannot be considered to be credible and reliable. According to the appellant the trial court did not address the contradictions. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 on how to treat contradictions where it was stated:
“With regard to contradictions in the prosecution’s case the law as set out in the numerous authorities is that grave contradictions unless explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or of they do not affect the main substance of the prosecution case.”
In the instant case the three main prosecution witnesses were consistent that upon receiving information that there was a suspect being in possession of elephant’s tusks and intended to sell the same, they laid ambush and one of the persons they arrested was the appellant. The evidence adduced by the prosecution placed the appellant at the locus quo at Manduguni area. His defence that he saw some people chasing Kazungu and when they were unable to catch him, they arrested him has not displaced the prosecution evidence that the appellant was arrested with the tusks. It is therefore clear that the appellant was not only in possession of the wildlife trophy but he intended to sell the same. As such I am satisfied the aspect of dealing and possession of wildlife trophy was proved as required and the trial court cannot be faulted.
Regarding whether the appellant had permit from the Director General of Kenya Wildlife Services, the trial court rightly found that the appellant failed to produce anything to show that he was permitted to deal or possess the elephant tusks.
Before I conclude, the appellant attacked the photographic evidence relied upon by the prosecution alleging that the same was produced contrary to Section 78 of the Evidence Act as the same were not produced by the author neither were they accompanied by certificate as required. That is true but the prosecution did not rely on the said photographic evidence exclusively. The prosecution tendered evidence showing that the appellant was found with the tusks. The same were not only identified in court but were produced as exhibit. The trial court cannot therefore be faulted. In any case the appellant did not raise this as a ground of appeal in his petition of appeal.
I therefore find that the appellant was properly convicted in respect of the two counts and the appeal herein lack merit.
On the sentencing, the appellant was sentenced to serve 6 ½ years on each count. Section 92(2) of the Wildlife Conservation and Management Act in which the appellant was charged in count one provides for a sentence of imprisonment of not less than seven years. Section 92(4) of the Act in which the appellant was charged in respect of the second count, the sentence provided is fine of not less than three million or imprisonment for a term not less than five years or both. The sentence imposed by the trial court was therefore lawful and I have no reason to interfere with the same.
The upshot is that the appeal herein lacks merit and the same is dismissed.
Dated, signed and delivered virtually this 23rd day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for the respondent virtually
Ms. Otwo court assistant virtually.
2
The appellant was charged with two counts.
The first count is of dealing with wildlife trophy contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars were that on the 29 th day of October, 2019 at around 1730hrs at Madunguni area within Kilifi County at GPS Co-ordinate 37M 0609117 UTM 9649623 was found dealing in 6 pieces of elephant tusk to with 40kgs with street value of Kshs. 4,000,000/= without a permit from the Director General of Kenya Wildlife Services.
The second count is of being in possession of wildlife trophy contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013. The particulars were that on the 29 th day of October, 2019 at around 1730hrs at Madunguni area within Kilifi County at GPS co-ordinate 37M 0609117 UTM 9649623 was found in possession of 6 pieces of elephant tusk to wit 40kgs with street value of Kshs. 4,000,000/= without a permit from the Director General of Kenya Wildlife Services.
The appellant pleaded not guilty to the charges when he was arraigned in court. The prosecution called four (4) witnesses.
The prosecution case in summary is that PW1 Evans Kibet a KWS Ranger was at Malindi Marine Park when he was informed by Ranger Sang Maiyo that there was information that there was someone at Madunguni area who was in possession of elephant tusks which he was planning to sell. Together with Major Maiyo, Haman Rama and Mwanzo went to the scene. Together with Major Maiyo they took a motor bike to the scene whereas Haman Rama and Mwanzo used a vehicle. He rode the motorcycle behind the vehicle. When they reached at Madunguni the informer entered the vehicle. They took off and the vehicle stopped. Rama alighted together with the informer and entered the bushes. He also stopped the motorcycle. After a few minutes Rama sent him a message that they were with the suspects weighing the tusks. Together with Major Maiyo they approached the vehicle and saw two persons carrying some things. They were directed to stop by Major Mayio but one of them ran away. They arrested one of the persons and found him in possession of elephant tusks. The suspect and the recoveries were taken to Marine Park. He saw the tusks at the marine park. He said the person who was arrested is the appellant.
In cross-examination he said the appellant emerged carrying tusks with another person who ran away. He denied suggestion by the appellant that the appellant was a passerby and maintained that the appellant was found carrying the tusks.
PW2 Goffrey Maiyo accompanied PW1 to the scene after getting information from Rama that there were suspects planning to sell elephant tusks. They apprehended the appellant who was among the suspect. The other suspect escaped. They searched the sacks the appellant had and found six (6) pieces of ivory tusks. They took the suspect to Malindi. An inventory of the recoveries was prepared which he signed together with PW1, Rama and the appellant. The inventory was identified in court and marked MFI1.
PW3 Haman Rama from KWS testified that he got intelligence information that there were two people in Marafa area who were in possession of 200kgs of elephant tusks and were planning to sell the same. He called the telephone number he was given by the informer to negotiate with the sellers of the tusks. He informed his colleagues PW1 and PW2. They proceeded to the scene as directed by the suspects on phone in a motor vehicle with civilian number plates and a motorcycle. He said they met with the suspect who led them to where the elephant tusks were. There was someone who assisted the suspect in weighing the tusks and it was only 40kgs. The tusks were loaded in a motorcycle and taken where they had parked their vehicle. At the motor vehicle the officer who were in a motorcycle appeared and identified themselves. The appellant was arrested but his accomplice managed to escape. An inventory was prepared and signed by all. He produced the tusks and the inventory in court as exhibits. He also identified the exhibit memo forwarding the recovered tusks for analysis. He later received the report from the analyst.
In cross-examination he said the appellant got into their vehicle to led them to where the tusks were. He further said the appellant weighed the tusks with his accomplice and they walked back to the vehicle. His accomplice loaded the tusks on a motorcycle and took them where the vehicle was. At the scene where the vehicle was parked the appellant was arrested. His accomplice escaped. He denied knowing the name of the accomplice as Kazungu.
PW4 Jeremiah Phogon Koitolok a specialized in wildlife medicine was on 23 rd November, 2019 at Tsavo East Research Station when 6 pieces of elephant tusks were brought to him for analysis. He examined the same and concluded that they were elephant tusks and he prepared a report which he produced in court as exhibit.
The appellant when placed on defence by the trial court he gave unsworn testimony. He said he was summoned by his in-laws to Madunguni who is a chief. He asked him to fetch some palm trees for him and left. As he was there some people he did not know came chasing one Kazungu. They were unable to arrest him. They alleged that he was an accomplice to Kazungu and arrested him and took him to the police station even after denying the charges.
After the hearing of the case the trial magistrate found him guilty of the two counts and convicted him accordingly and subsequently sentenced him to serve 6 ½ years on each count with the sentence to run concurrently.
Dissatisfied with the conviction and sentence the appellant preferred this appeal to this court. The appellant filed memorandum of appeal raising the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in breach of Section 109 and 110 of the Evidence Act;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradictions by the prosecution in contravention of Section 163(1)(c) of the Evidence Act;
3. That the trial magistrate erred in law and facts by failing to consider that the documental exhibits by prosecution were unreliable;
4. That the learned trial magistrate erred in law and facts by failing to appreciate the negligence and ignorance of the police service unit.
The record further shows that the appellant filed a Notice of Motion seeking to amend his memorandum of appeal and the amended grounds of appeal be deemed to be duly filed and properly on record upon the grant of leave of the court. The record does not show whether leave to file the supplementary grounds of appeal was granted. The same having been filed without the leave of the court as provided for under Section 350(2)(i) of the Criminal Procedure Code shall not therefore be considered.
Both the appellant and the respondent filed written submissions. As I have indicated the appellant filed supplementary grounds of appeal without the leave of the court and as such the submissions in respect of the said grounds shall not be subject of the consideration in this judgment. The court will confine itself to the grounds raised in the initial grounds of appeal. Having stated so I have carefully perused and considered the submissions by both the appellant and the respondent and the case law cited. I shall refer to the said submissions where necessary in analyzing and determining whether the prosecution proved the charges as required.
This being a first appeal, this court is under duty to re-evaluate and reconsider the evidence adduced before the trial court and make its own conclusions. This must however be done keeping in mind that it did not have the advantage of observing the demeanor of the witnesses and hearing their evidence unlike the trial court. This principle was laid down in numerous decisions of the Court of Appeal among them the case of Kiilu & Another vs Republic (2005) 1 KLR 174 where the Court of Appeal stated as follows:
1. An Appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
2. 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 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.
Further to the foregoing the legal burden of proof in criminal cases remains with the prosecution throughout to prove the guilty of an accused person beyond reasonable doubt. Such burden does not shift to the accused save in a few exceptional circumstances expressly provided by the law. This position has been restated in numerous authorities. For instance, in the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal case and stated:
“…It is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
The appellant was charged and convicted of the offence of dealing in wildlife trophy contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013 in the first count and being in possession of wildlife trophy contrary to Section 92(4) of the Wildlife Conservation and Management Act, 2013 in count two.
The charges the appellant faced are based on the provisions of Section 92 of the Wildlife Conservation and Management Act, 2013 which provides as follows:
“92 (1) A person who kills or injures, tortures or molest, or attempts to kill or injure, a critically endangered, or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment of not less than five years.
(2) A person who, without permit or exemption issued under this Act, deals in a wildlife trophy, of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I commits an offence and shall be liable upon conviction to a term of imprisonment for noy less than seven years.
(3) Any person who, without permit or exemption under this Act, deals in a live wildlife species of any critically endangered or endangered species as specified in the Sixth Schedule or listed in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than three years.
(4) Any person without permit or exemption issued under this Act is in possession of any love wildlife species or trophy of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than five million or a term of imprisonment of not less than five years or both fine and imprisonment.
(5) Any person who without permit or exemption issued under thus Act, manufactures an item from a trophy of a critically endangered or endangered species specified under the Sixth Schedule or listed under CITES Appendix I without a permit or exemption issued under this Act, commits an offence and shall on conviction, be liable to a fine of not less than ten million shillings or up to life imprisonment or both such fine and imprisonment.
The Sixth Schedule of the Act lists several national critically endangered, vulnerable, nearly threatened and protected species. Among the listed endangered species is Loxodonta Africana which is commonly the African elephant. In this case the evidence lead by the prosecution is that the appellant was found in possession of elephant tusk. Elephant is one of the animals listed under the Sixth Schedule as critically endangered species. As such the prosecution satisfied the court on the requirement under Section 92 of the Wildlife Conservation and Management Act, 2013.
The second issue which the prosecution ought to have satisfied is whether the alleged recovered items were wildlife trophy. PW4 testified before the trial court that he examined the six pieces of tusk expected to be of elephant. He confirmed that the same were actually elephant tusks. Trophy is defined under Section 3 of the Wildlife Conservation and Management Act, 2013 as follows:
“trophy” includes any bone, claw, egg, feather, hair, hoof, skin, tooth or tusk of an animal, and for any species of plant, any bark, branch, leaf, log, sip or extract and includes any other durable portion whatsoever of that animal or plant whether processed, added to or changed by the work of man or not, which is recognizable as such.
From the foregoing it is clear that what is alleged to have been recovered from the appellant was animal trophy as defined under Section 3 of the Act. The trial court therefore correctly made a finding that the items recovered were trophy as provided for under Section 92(2) of the Wildlife Conservation and Management Act, 2013.
The next issue for determination is whether the prosecution proved before the trial court whether the circumstances under which the appellant is alleged to have been found with the tusks amounted to dealing. Under Section 3 of the Wildlife Conservation and Management Act, to deal in wildlife trophy means:
a) To sell, purchase, distribute, barter, give, receive, administer, supply, or otherwise in any manner deal with a trophy or live species;
b) To cut, carve, polish, preserve, mount or otherwise prepare a trophy or live species;
c) To transport or convey a trophy or live species;
d) To be in possession of any trophy or live species with intent to supply to another; or
e) To do or offer to any act preparatory to, in furtherance of, or for the purpose of, an act specified above.
From the evidence adduced before the trial court it was not rebutted that PW1 received information from an informer who told him that there was someone in possession of elephant tusks which he was planning to sell. Together with PW2 and PW3 they posed as buyers. In the process they arrested the appellant who was in the company of another suspect who escaped. The appellant in his grounds and submissions faulted the trial court for relying on contradictory evidence of the prosecution witnesses. He alleged there were contradictions as to the person who entered the house. According to him the evidence of PW1, PW2 and PW3 was contradictory as to the person who joined them when the went lay ambush. He alleged that PW1 and PW2 contradicted PW3 as to the person who joined them with PW1 and PW2 stating that the person who joined them was the informer whereas PW3 stated that it was the appellant. For the foregoing he submitted that the evidence of the three prosecution witnesses cannot be considered to be credible and reliable. According to the appellant the trial court did not address the contradictions. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 on how to treat contradictions where it was stated:
“With regard to contradictions in the prosecution’s case the law as set out in the numerous authorities is that grave contradictions unless explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or of they do not affect the main substance of the prosecution case.”
In the instant case the three main prosecution witnesses were consistent that upon receiving information that there was a suspect being in possession of elephant’s tusks and intended to sell the same, they laid ambush and one of the persons they arrested was the appellant. The evidence adduced by the prosecution placed the appellant at the locus quo at Manduguni area. His defence that he saw some people chasing Kazungu and when they were unable to catch him, they arrested him has not displaced the prosecution evidence that the appellant was arrested with the tusks. It is therefore clear that the appellant was not only in possession of the wildlife trophy but he intended to sell the same. As such I am satisfied the aspect of dealing and possession of wildlife trophy was proved as required and the trial court cannot be faulted.
Regarding whether the appellant had permit from the Director General of Kenya Wildlife Services, the trial court rightly found that the appellant failed to produce anything to show that he was permitted to deal or possess the elephant tusks.
Before I conclude, the appellant attacked the photographic evidence relied upon by the prosecution alleging that the same was produced contrary to Section 78 of the Evidence Act as the same were not produced by the author neither were they accompanied by certificate as required. That is true but the prosecution did not rely on the said photographic evidence exclusively. The prosecution tendered evidence showing that the appellant was found with the tusks. The same were not only identified in court but were produced as exhibit. The trial court cannot therefore be faulted. In any case the appellant did not raise this as a ground of appeal in his petition of appeal.
I therefore find that the appellant was properly convicted in respect of the two counts and the appeal herein lack merit.
On the sentencing, the appellant was sentenced to serve 6 ½ years on each count. Section 92(2) of the Wildlife Conservation and Management Act in which the appellant was charged in count one provides for a sentence of imprisonment of not less than seven years. Section 92(4) of the Act in which the appellant was charged in respect of the second count, the sentence provided is fine of not less than three million or imprisonment for a term not less than five years or both. The sentence imposed by the trial court was therefore lawful and I have no reason to interfere with the same.
The upshot is that the appeal herein lacks merit and the same is dismissed.
Dated, signed and delivered virtually this 23rd day of June, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually
Ms. Mutua for the respondent virtually
Ms. Otwo court assistant virtually.
2