REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E042 & E043 OF 2024 (CONSOLIDATED)
CHRISTOPHER NDOLO KIIO ………………….…. 1ST APPELLANT
JOHN MUTUKU KITHIA ………………….………. 2ND APPELLANT
VERSUS
REPUBLIC ………………………………..…………...….. RESPONDENT
(Being an appeal from the Judgment of Hon. Andayi W. Fracis (CM) at Machakos Chief Magistrate Criminal Case No. 420 of 2019 delivered on 23rd May 2024)
JUDGMENT
A. Introduction
1. The appellants, Christopher Ndolo Kiio and John Mutuku Kithia were charged before the Chief Magistrate’s court at Machakos with the offence of being in possession of endangered wildlife trophy contrary to Section 92 (4) of the Wildlife Conservation and Management Act 2013 as read with Statute Law (Miscellenaous Amendment) Act No. 18 of 2018.
2. The particulars of the offence for the 1st Appellant are that on 25th June 2019 night at around 3:40a.m at Kyumbi area along Mombasa-Nairobi road within Machakos county was found in possession of 7 gunny bags containing assorted wood carvings weighing approximately 215 kilogrammes which were cut from endangered species namely Dalbergia sisso (Rosewood) species which he was transporting using Motor Vehicle Registration Number KCC 080U Mitsubishi FH matatu without a permit from Kenya Wildlife Service.
3. The particulars of the offence for the 2nd Appellant are that on 25th June 2019 night at around 3:40a.m at Kyumbi area along Mombasa-Nairobi road within Machakos county was found in possession of 4 gunny bags containing assorted wood carvings weighing approximately 115kilogrammes which were cut from endangered species namely Dalbergia sissoo (Rosewood) species which he was transporting using Motor Vehicle Registration number KCC 080U Mitsubishi FH matatu without permit from Kenya Wildlife Service.
4. Following trial, the appellants were found guilty of the charge, convicted and each sentenced to 3 years imprisonment and each fined Kshs 2 million.
5. The Appellants were aggrieved by their conviction and sentence. They have appealed to this court on the grounds that the learned trial magistrate erred in both fact and law by convicting them on evidence that did not meet the minimum threshold to uphold a conviction and for failing to consider their plausible defence and failing to provide cogent reasons for it.
6. On 5th November 2025, both appeals were consolidated and this court directed that Appeal No. E043 of 2024 as the lead file.
Background
7. The appellant pleaded not guilty to the convicted charge and to prove its case, the prosecution called 5 witnesses. The defence did not call any other witness.
B. Prosecution case
8. To prove its case, the prosecution called 7 witnesses.
9. PW1, James Mutunga Mutiso, testified that he is a resident of Mtito Andei and a driver with Nyasena Sacco, operating Motor Vehicle Registration No. KCC 080U on the Mtito Andei–Nairobi route. He stated that on 24th June 2019, he drove from Mtito Andei, departing from Kivindyo and arriving at Kibarani stage, where his conductor, Kevin Mulinge, stopped the vehicle to pick three passengers, one lady and two men who had luggage packed in gunny bags. He testified that before reaching Makutano junction, at about 3:30 a.m., the vehicle was stopped by police officers who climbed onto the vehicle and inspected the luggage. The vehicle was thereafter taken to Kyumbi Police Station, where the police inquired about the ownership of the luggage. According to PW1, the conductor identified the owners, whereupon they were arrested, after which the vehicle was allowed to proceed without the three passengers. PW1 stated that he did not know what the gunny bags contained. Although he identified the gunny bags in court, he stated that he was not certain, as the incident occurred at night.
10. On cross-examination, PW1 stated that it was dark and that he did not see the passengers clearly and therefore could not identify them. He testified that when the police stopped the vehicle while he was driving, he was instructed to drive the 46-seater bus to the police station and that, at that point, the luggage had not been offloaded. He stated that the passengers only alighted at the police station, where the luggage was then offloaded. He further stated that he could not tell which passenger owned which luggage. PW1 testified that he recorded his statement on a different date, which he could not recall.
11. On re-examination, he stated that the owners of the luggage were eventually identified, though he personally could not identify them. He confirmed that he read his statement before signing it. He also stated that when the motor vehicle was initially stopped, the police did not inspect the vehicle at that point.
12. PW2, Kelvin Muthini Katumo, the conductor of the 46-seater Motor Vehicle Registration No. KCC 080U (F.H. Mitsubishi), testified that on 24th June 2019, at about midnight, they were travelling to Nairobi when, at Kaharaki, they picked passengers who had luggage packed in approximately ten gunny bags. He stated that he could not identify the passengers. He testified that he loaded the gunny bags with the assistance of the passengers, the driver, and other touts, and that the gunny bags contained items that appeared to be made of wood. He further stated that at about 3:00 a.m., they were stopped by police officers at Makutano, who informed him that they were carrying illegal goods and instructed them to proceed to Kyumbi Police Station, where the luggage was offloaded. He stated that thereafter, they left about ten passengers at the police station.
13. On cross-examination, PW2 stated that it was at night and that he could not see the passengers clearly. He testified that he ferries many passengers and could not tell who was who. He stated that receipts are usually issued to passengers for fare and luggage, but he did not have any such receipts in court. He further testified that at the police station, the passengers alighted and the luggage was offloaded, after which they left the passengers behind and departed. He stated that he therefore did not know what happened to the luggage thereafter. PW2 testified that he recorded his statement but could not recall the date. He stated that the statement was recorded by a police officer as he narrated the events and that he signed it.
14. On re-examination, PW2 stated that he had issued receipts to the passengers and that at the police station, all passengers were left behind. He confirmed that his statement was read out to him before he signed it.
15. PW3, Ranger Bernard Yegon, a Kenya Wildlife Service (KWS) officer based at Kajiado Station and attached to the investigation’s unit, testified that on 24th June 2019, at about 9:30 p.m., he was with his colleagues at Kajiado when Sergeant Kinyua informed them that he had received intelligence that individuals were transporting endangered tree species from Mtito Andei to Nairobi using Motor Vehicle Registration No. KCC 080U. He testified that they left Kajiado and proceeded to Kyumbi, where there was a police roadblock. At about 3:00 a.m., the said motor vehicle approached and was stopped. He testified that Sergeant Kinyua introduced the team and requested permission to conduct a search. PW3 stated that he climbed onto the carrier of the vehicle together with the conductor and found several gunny bags containing carved wooden items. He testified that the luggage was offloaded and that the conductor identified the owners of the gunny bags as follows: Mutuku with seven bags, Ndolo with four bags, and Sanlack with one bag. He stated that an inventory was prepared, after which the luggage was reloaded and the parties proceeded to Kyumbi Police Station, where the incident was recorded. He further testified that at the police station, the owners of the luggage identified themselves as Ndolo and Mutuku. He stated that the two had previously been arrested in another incident involving the transportation of endangered species. He further testified that on 10th October 2019, they were summoned to Kyumbi Police Station, where they were informed of the results of the analysis, which confirmed that the wood was sandalwood, an endangered species. He produced the gunny bags and the inventory as exhibits.
16. On cross-examination, PW3 stated that although there is a KWS office in Machakos, they did not involve officers from that station. He testified that he did not know the names of the police officers manning the roadblock at Kyumbi. He stated that they confiscated Mpingo artifacts. They inquired from the conductor about the ownership of the luggage and that the conductor pointed out the owners, although he did not initially give their names. He stated that he knew the accused persons from before but clarified that he did not arrest them because of prior knowledge, but because of the luggage found in their possession. He testified that he boarded the motor vehicle at Kyumbi and that it was full. He stated that all passengers alighted when the vehicle was stopped and that all luggage was offloaded. He testified that the owners of the luggage were identified through the conductor both at the roadblock and at the police station. He further testified that he was not present when the motor vehicle was released. He stated that the accused persons were not forced to sign the inventory. He confirmed that no photographs were taken and that he did not know who took the photograph shown to him by the prosecutor. He testified that he recorded his statement on the same day of arrest and did not know when the driver and conductor recorded their statements. He further testified that he did not know who took the samples for analysis. He stated that the accused persons were informed of the reasons for their arrest. He further stated that each passenger took their luggage and that there were other luggage items on the carrier.
17. On re-examination, PW3 clarified that his jurisdiction covers Machakos County. He stated that according to the intelligence received, the wood was initially believed to be Mpingo, but upon forensic examination, it was confirmed to be rosewood, which is an endangered species. He further clarified that the accused persons did not deny ownership of the luggage and that they cooperated with the officers.
18. PW4, Warden III Justin Kinyua, testified that on 24th June 2019, at about 7:00 p.m., he received information regarding a suspected motor vehicle ferrying carvings made from endangered tree species. He testified that he informed his colleague, Salome Yegon, and they acted on the information. He stated that they left Kajiado at about 11:30 p.m. and proceeded to Machakos Junction along the Nairobi–Mombasa Highway, arriving there at about 2:00 a.m. At around 2:30 a.m., Motor Vehicle Registration No. KCC 080U, belonging to Sema Sacco Limited, arrived and was flagged down with the assistance of police officers. Upon inspection, they found carvings packed in gunny bags on the carrier of the vehicle. PW4 testified that the conductor identified the owners of the luggage, stating that the 1st appellant had seven gunny bags, the 2nd appellant had four gunny bags, while one bag belonged to another accused person who was not before the court. He further testified that he prepared an inventory of the recovered items dated 25th September 2019, which was signed by the officers present, the accused persons, and the driver of the motor vehicle. He stated that they directed the motor vehicle to proceed to Kyumbi Police Station, where the accused persons and the recovered items were booked under OB No. 4/25/9/19. He testified that he also discovered that the accused persons had previously been arrested with other items. He further testified that Motor Vehicle Registration No. KCC 080U belonging to Sema Sacco was detained, that the artefacts were photographed, and that two persons were arrested, whom he confirmed were before the court. He stated that he did not know the whereabouts of the third accused person but confirmed that the item found in his possession was not from an endangered species.
19. On cross-examination, PW4 testified that he knew the accused persons prior to the incident but clarified that he did not receive their names in the initial tip-off. He stated that he did not know where the accused persons had been before the interception and denied that they were immediately identified as the owners of the luggage when the vehicle was stopped.
20. He confirmed that the driver of the motor vehicle was James Malinga but he did not record statements from either the driver or the conductor. PW4 further testified that there were police officers manning the roadblock and that, upon stopping the vehicle, he and Yegon climbed onto the carrier together with the conductor. He stated that the inventory was signed at the roadblock. He added that he did not know the specific tree species used to make the artefacts at the time of arrest. He maintained that Kevin, the conductor, would have been untruthful had he claimed not to have identified the owners of the luggage, since the driver did not provide such information. He testified that when the conductor pointed out the owners, each accused person stated the number of gunny bags that belonged to him. He further testified that there were three officers, the three accused persons, and the driver were present when the inventory was signed, and that no force, intimidation, or confession was recorded. PW4 emphasized that he was not an expert capable of confirming the tree species and that at the time of arrest, the officers were acting purely on suspicion.
21. PW5 Wycliff Mauta, who has worked with Kenya Forestry Service for over 15 years and is based at Karura Nairobi in charge of wood anatomy laboratory testified that his work involves research and wood identification using internal features. He stated that he received a memo from Kyumbi police station on 10th July 2019 requesting him to identify the species of artefacts. He conducted his analysis and prepared a report dated 27th September 2019 which he produced in court. PW5 explained that the memo requested identification of seven exhibits delivered to him in seven sacks. His team carried out a random selection after coding the sacks. He examined the anatomical features such as water absorption, smell, texture, grains, wood maline and then used his microscope features specific to each species. His conclusion was that the artefacts sacks marked MK1-MK7 and OX1- OX4 were made of rosewood and the other sack marked XM1 contained items not made from an endangered species.
22. During cross-examination, PW5 stated that although he received a memo on 10th July 2019 he was not aware when the exhibits were confiscated or origin, as his role was limited to identification of the species. He added that while he may know which species are endangered his role was not to establish whether the species were endangered but only to identify them. He clarified that although the memo asked whether the species is endangered, he did not respond to that aspect because he considered the KWS to be the competent authority on endangered species.
23. PW6, Inspector Ndunda Morris in charge Forensic Machakos County testified that he was requested by the investigating officer to do forensic documentation of the exhibits in the matter. He testified that on 7th February 2020 at about 1p.m, Corporal Wamugunda of Kyumbi Police Station requested him to photograph exhibits before Machakos Law. These included Motor Vehicle KCC 080U Mitsubishi Matatu, which he took 3photos, sacks containing trophies and some trophies in small manilla bags as samples. He further stated that he took the films for processing under his supervision. He produced the certificate and photographs in court.
24. On cross examination, he stated that he is not aware of the ownership of the exhibits as his role limited to taking photos only.
25. PW7, Corporal Lawrence Wamugunda, the investigating officer, testified that on the night of 25th June 2019, he was the duty officer at the station. He stated that at about 3:00 a.m., officers from the Kenya Wildlife Service (KWS) based in Kajiado escorted three suspects together with Motor Vehicle Registration No. KCC 080U (Mitsubishi FH) to the station. He testified that the KWS officers informed him that the suspects had been found transporting endangered species in the said motor vehicle. He recorded statements from the witnesses, interrogated the suspects, and he presented them before court the following morning. He stated that the first accused had seven gunny bags, the second accused had four gunny bags, and the third accused had half a bag. He was also handed an inventory of the recovered items.
26. He further testified that on 10th July 2019, he prepared an exhibit memo form and escorted the exhibits to the Kenya Forestry Service (KFS), where an expert took samples from each bag and later returned the exhibits. On 12th September 2019, he proceeded to Makindu Handicraft to establish whether they had a permit to deal in endangered species, but none was produced. He later received a report from KFS, which confirmed that the exhibits recovered from the 1st and 2nd accused persons were made from rosewood, an endangered species, while the item recovered from the 3rd accused person was not from an endangered species. He then prepared an amended charge sheet in respect of the two accused persons who were before the court. He stated that he did not know the accused persons prior to the incident. He produced the twelve gunny bags as exhibits.
27. On cross-examination, PW7 testified that he relied on the expert report and confirmed from the relevant Schedule under the Act that rosewood is classified as an endangered species. He stated that he was informed that the accused persons had been passengers in the motor vehicle and were brought to the station together with other passengers but were later separated after inquiries were made. He confirmed that the driver of the motor vehicle was James Mutunga, who could not identify the owners of the luggage. PW7 testified that it was Kevin, PW2, the conductor, who identified the owners of the gunny bags. He added that he was not aware whether PW2 had ever indicated that he did not know the owners of the bags. He further testified that both the driver and the conductor later became hostile witnesses. He stated that he prepared the exhibit memo on 9th July 2019 and escorted the exhibits for analysis on 10th July 2019. He testified that he visited the Department of Trade and Industry in Makindu, where he was informed that they had never heard of Makindu Crafts or Arts. He further testified that KWS officers had suspected the items to be made from endangered species.
28. On re-examination, PW7 clarified that he relied on the provisions of the Wildlife Conservation and Management Act, which lists endangered species. He further clarified that he was informed that the accused persons were the owners of the gunny bags, which bore their initials.
29. With the testimony of these seven witnesses, the prosecution closed its case. Upon consideration, the court found that the prosecution had established a prima facie case, whereupon the appellants were placed on their defence. They elected to give sworn evidence and did not call any more witnesses.
C. Defence case
30. DW1, the 2nd Appellant, gave a sworn statement in which he testified that he is a trader dealing in second-hand clothes (mitumba). He stated that on 25th June 2019, he boarded Motor Vehicle Registration No. KCC 080U at Kirande en route to Nairobi to purchase second-hand clothes for resale. At about 4:00 a.m., the vehicle was stopped at Makutano Junction in Machakos, and all passengers were ordered to alight. Upon alighting, he observed several gunny bags. He testified that KWS officers held his hand and ordered him to stand behind the gunny bags, informed him that he was under arrest, and told him that he would be imprisoned. He stated that no inventory was prepared on that day and that he did not sign any such inventory. He further stated that he ordinarily signs using his initials, “J.M.”, and that the signature appearing on the inventory was not his. He testified that he has never sold carvings and that he did not have any luggage when he boarded the motor vehicle.
31. On cross-examination, DW1 confirmed that he boarded the motor vehicle on 25th June 2019. He testified that he did not know the driver but was acquainted with the conductor. He reiterated that he was travelling to Nairobi to purchase mitumba. Initially, he stated that the vehicle was a 14-seater matatu with other passengers. He testified that the vehicle was stopped by KWS officers and not police officers and that no other motor vehicle was stopped at that time. He admitted that he did not count the gunny bags but acknowledged that they contained wood carvings. He also confirmed that the other accused person was among the passengers.
32. On re-examination, DW1 clarified that he had boarded a large matatu and not a small one. He further stated that he only came to know the other accused person at the time of arrest and not before. He testified that there were many gunny bags, though he did not determine their exact number. He reiterated that he did not sign the inventory.
33. DW2, the 1st Appellant, testified that he is a farmer from Ndaine. He stated that on the material night, he boarded Motor Vehicle Registration No. KCC 080U at Mbui-Nzau stage, heading towards Makutano–Kyumbi, intending to visit his aunt in Kathiani, Machakos County. He stated that he did not know the DW1, prior to that day. He further testified that after boarding the vehicle, he fell asleep. He stated that upon reaching a roadblock at the junction, the vehicle was stopped, and he was woken up. Police officers boarded the vehicle while KWS officers remained on the ground. The driver was instructed to drive the vehicle to the police station. Upon arrival, all passengers were ordered to alight. Those who had boarded at Mbui-Nzau were asked to step forward, at which point luggage was placed on the ground. DW2 stated that the passengers were asked about the ownership of the luggage, which he denied. He testified that some passengers were taken aside and spoken to by the officers. When they returned, he was informed that he was the owner of the luggage and was arrested at about 3:00 a.m. He stated that the remaining passengers were allowed to re-board the vehicle and leave. He further testified that he declined to record a statement as demanded. At about 7:00 a.m., the head of KWS arrived, appeared angry, and again demanded that he record a statement, which he again declined. He stated that he was threatened with imprisonment and transfer to Machakos. He also declined to sign the inventory. He testified that he was travelling to visit his aunt, Alice Muthikwa, who was unwell.
34. On cross-examination, DW2 stated that his aunt resides in Kathiani. He testified that he boarded the motor vehicle at Mbui-Nzau at around midnight, intending to arrive at her home by 5.00am as the journey would take approximately four hours. He confirmed that when the motor vehicle was stopped at the junction, police officers boarded it and it was then driven to the police station. He testified that he only saw the luggage on the ground at the police station. He stated that about twelve passengers were taken aside and spoken to by the police, but ultimately, only DW1 and himself were remained at the police station. He further testified that he sells vegetables in various markets within Makueni County and that it was first time boarding that particular motor vehicle.
35. On re-examination, DW2 clarified that he came to know DW1 on the day of arrest. He testified that there was a pickup truck under arrest at the junction carrying sacks, and that the sacks he later saw at the police station had been offloaded from that pickup truck. He stated that there was nothing unusual about visiting his aunt early in the morning.
36. After the close of the defence case the appellants filed their submissions and the matter was scheduled for delivery of the judgment.
37. The trial court found the appellant guilty of the offence charged. In sentencing, the trial court considered the probation officer’s report and the ages of the accused persons and fined each accused Kshs 2 million in default to serve 3 years imprisonment.
D. The Appeal
38. The appeal is as set out in the earlier paragraphs of this judgment. The appellants seeks that their conviction be quashed and the sentence set aside. The appellant rely on written submissions dated 9th April 2025 and 6th October 2025 while the respondent relies on its submissions dated 26th November 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
39. The Appellant challenges both the conviction and sentence imposed by the trial court for the offence of being in possession of endangered wildlife trophies contrary to section 92(4) of the Wildlife Conservation and Management Act, 2013. He submits that the conviction was unsafe for want of proof beyond reasonable doubt and that the sentence imposed was harsh, excessive, and imposed without due regard to material mitigating factors.
40. On conviction, the Appellant contends that the prosecution evidence did not meet the requisite threshold to sustain a conviction. He points out that PW1, the driver of the vehicle, expressly stated that he did not know the contents of the gunny bags and could not identify the passengers or the owners of the luggage, particularly as the incident occurred at night. Similarly, PW2, the conductor, testified that he could not identify the owners of the luggage and acknowledged that several passengers were on board, thereby weakening the prosecution’s assertion that the Appellant was in possession of the exhibits. The Appellant argues that possession, being a key ingredient of the offence was not proved. The Appellant further submits that the evidence of PW3, the arresting KWS officer, was contradictory and doubtful particularly regarding the identification of the luggage owners and the manner in which the arrest was conducted. He contends that the arrest was founded on mere suspicion rather than concrete evidence, contrary to the holding in Sawe v Republic. The Appellant also faults the failure to involve local KWS officers and the unexplained release of a co-accused person.
41. The Appellant further submits that the chain of custody was not properly established. He points out that no photographs were taken at the scene, inventories were allegedly signed at the roadblock and forensic photographs were taken later at the police station by officers who could not confirm ownership or origin of the exhibits. The Appellant argues that this created a real possibility of fabrication or misidentification of exhibits. Additionally, he submits that none of the prosecution witnesses had the requisite expertise to conclusively identify the exhibits as endangered wildlife trophies. He contends that the prosecution failed to prove common intention under section 21 of the Penal Code as no evidence was tendered to show a meeting of minds or joint participation between the Appellant and any co-accused.
42. Regarding his defence, the Appellant submits that the trial court failed to consider his plausible explanation that he was merely a passenger travelling to purchase second-hand clothing and that he had never sold carvings. He argues that the defence evidence was neither evaluated nor rejected with reasons, contrary to settled principles of criminal justice. He reiterates that the burden of proof lay entirely with the prosecution, as underscored in Woolmington v DPP [1935] A.C 462 and Sekitoliko v Uganda [1967] EA 53.
43. On sentence, the Appellant filed supplementary submissions urging the Court to interfere with the custodial sentence imposed. He submits that the trial court acted on wrong principles and overlooked material mitigating factors. He highlights that he is a first offender, elderly of 68 years old and suffers from serious and chronic medical conditions, including hypertension, severe rheumatoid arthritis and early-stage renal failure, which require continuous medication and frequent medical review.
44. The Appellant invokes Articles 43, 50 (2) and 57 of the Constitution, arguing that his right to the highest attainable standard of health, fair trial and dignity as an older person should inform the sentencing outcome. He submits that his continued incarceration amounts to excessive and disproportionate punishment in light of his medical condition. He further relies on the Judiciary Sentencing Policy Guidelines (2016) particularly the objectives of sentencing, the preference for non-custodial sentences where appropriate, and the guidance on sentencing elderly and terminally ill offenders. He argues that the period already served has sufficiently met the objectives of punishment, deterrence, and rehabilitation.
45. While citing the case of Nelson v Republic [1970] E.A 599 and the case of Thomas Mwambu Wenyi versus Republic [2017] eKLR, the Appellant submits that the appellate court is entitled to interfere where a sentence is manifestly excessive or where the trial court overlooked material considerations. He urges the Court to substitute the custodial sentence with a non-custodial sentence, including a Community Service Order or in the alternative, to substantially reduce the custodial term.
46. In conclusion, the Appellant prays that the conviction be quashed and the sentence set aside. In the alternative, he urges the Court to exercise its discretion and impose a non-custodial sentence or grant appropriate sentencing relief in light of the exceptional circumstances presented.
b) Respondent’s Submissions
47. The Respondent began its submis
[...truncated]
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E042 & E043 OF 2024 (CONSOLIDATED)
CHRISTOPHER NDOLO KIIO ………………….…. 1ST APPELLANT
JOHN MUTUKU KITHIA ………………….………. 2ND APPELLANT
VERSUS
REPUBLIC ………………………………..…………...….. RESPONDENT
(Being an appeal from the Judgment of Hon. Andayi W. Fracis (CM) at Machakos Chief Magistrate Criminal Case No. 420 of 2019 delivered on 23rd May 2024)
JUDGMENT
A. Introduction
1. The appellants, Christopher Ndolo Kiio and John Mutuku Kithia were charged before the Chief Magistrate’s court at Machakos with the offence of being in possession of endangered wildlife trophy contrary to Section 92 (4) of the Wildlife Conservation and Management Act 2013 as read with Statute Law (Miscellenaous Amendment) Act No. 18 of 2018.
2. The particulars of the offence for the 1st Appellant are that on 25th June 2019 night at around 3:40a.m at Kyumbi area along Mombasa-Nairobi road within Machakos county was found in possession of 7 gunny bags containing assorted wood carvings weighing approximately 215 kilogrammes which were cut from endangered species namely Dalbergia sisso (Rosewood) species which he was transporting using Motor Vehicle Registration Number KCC 080U Mitsubishi FH matatu without a permit from Kenya Wildlife Service.
3. The particulars of the offence for the 2nd Appellant are that on 25th June 2019 night at around 3:40a.m at Kyumbi area along Mombasa-Nairobi road within Machakos county was found in possession of 4 gunny bags containing assorted wood carvings weighing approximately 115kilogrammes which were cut from endangered species namely Dalbergia sissoo (Rosewood) species which he was transporting using Motor Vehicle Registration number KCC 080U Mitsubishi FH matatu without permit from Kenya Wildlife Service.
4. Following trial, the appellants were found guilty of the charge, convicted and each sentenced to 3 years imprisonment and each fined Kshs 2 million.
5. The Appellants were aggrieved by their conviction and sentence. They have appealed to this court on the grounds that the learned trial magistrate erred in both fact and law by convicting them on evidence that did not meet the minimum threshold to uphold a conviction and for failing to consider their plausible defence and failing to provide cogent reasons for it.
6. On 5th November 2025, both appeals were consolidated and this court directed that Appeal No. E043 of 2024 as the lead file.
Background
7. The appellant pleaded not guilty to the convicted charge and to prove its case, the prosecution called 5 witnesses. The defence did not call any other witness.
B. Prosecution case
8. To prove its case, the prosecution called 7 witnesses.
9. PW1, James Mutunga Mutiso, testified that he is a resident of Mtito Andei and a driver with Nyasena Sacco, operating Motor Vehicle Registration No. KCC 080U on the Mtito Andei–Nairobi route. He stated that on 24th June 2019, he drove from Mtito Andei, departing from Kivindyo and arriving at Kibarani stage, where his conductor, Kevin Mulinge, stopped the vehicle to pick three passengers, one lady and two men who had luggage packed in gunny bags. He testified that before reaching Makutano junction, at about 3:30 a.m., the vehicle was stopped by police officers who climbed onto the vehicle and inspected the luggage. The vehicle was thereafter taken to Kyumbi Police Station, where the police inquired about the ownership of the luggage. According to PW1, the conductor identified the owners, whereupon they were arrested, after which the vehicle was allowed to proceed without the three passengers. PW1 stated that he did not know what the gunny bags contained. Although he identified the gunny bags in court, he stated that he was not certain, as the incident occurred at night.
10. On cross-examination, PW1 stated that it was dark and that he did not see the passengers clearly and therefore could not identify them. He testified that when the police stopped the vehicle while he was driving, he was instructed to drive the 46-seater bus to the police station and that, at that point, the luggage had not been offloaded. He stated that the passengers only alighted at the police station, where the luggage was then offloaded. He further stated that he could not tell which passenger owned which luggage. PW1 testified that he recorded his statement on a different date, which he could not recall.
11. On re-examination, he stated that the owners of the luggage were eventually identified, though he personally could not identify them. He confirmed that he read his statement before signing it. He also stated that when the motor vehicle was initially stopped, the police did not inspect the vehicle at that point.
12. PW2, Kelvin Muthini Katumo, the conductor of the 46-seater Motor Vehicle Registration No. KCC 080U (F.H. Mitsubishi), testified that on 24th June 2019, at about midnight, they were travelling to Nairobi when, at Kaharaki, they picked passengers who had luggage packed in approximately ten gunny bags. He stated that he could not identify the passengers. He testified that he loaded the gunny bags with the assistance of the passengers, the driver, and other touts, and that the gunny bags contained items that appeared to be made of wood. He further stated that at about 3:00 a.m., they were stopped by police officers at Makutano, who informed him that they were carrying illegal goods and instructed them to proceed to Kyumbi Police Station, where the luggage was offloaded. He stated that thereafter, they left about ten passengers at the police station.
13. On cross-examination, PW2 stated that it was at night and that he could not see the passengers clearly. He testified that he ferries many passengers and could not tell who was who. He stated that receipts are usually issued to passengers for fare and luggage, but he did not have any such receipts in court. He further testified that at the police station, the passengers alighted and the luggage was offloaded, after which they left the passengers behind and departed. He stated that he therefore did not know what happened to the luggage thereafter. PW2 testified that he recorded his statement but could not recall the date. He stated that the statement was recorded by a police officer as he narrated the events and that he signed it.
14. On re-examination, PW2 stated that he had issued receipts to the passengers and that at the police station, all passengers were left behind. He confirmed that his statement was read out to him before he signed it.
15. PW3, Ranger Bernard Yegon, a Kenya Wildlife Service (KWS) officer based at Kajiado Station and attached to the investigation’s unit, testified that on 24th June 2019, at about 9:30 p.m., he was with his colleagues at Kajiado when Sergeant Kinyua informed them that he had received intelligence that individuals were transporting endangered tree species from Mtito Andei to Nairobi using Motor Vehicle Registration No. KCC 080U. He testified that they left Kajiado and proceeded to Kyumbi, where there was a police roadblock. At about 3:00 a.m., the said motor vehicle approached and was stopped. He testified that Sergeant Kinyua introduced the team and requested permission to conduct a search. PW3 stated that he climbed onto the carrier of the vehicle together with the conductor and found several gunny bags containing carved wooden items. He testified that the luggage was offloaded and that the conductor identified the owners of the gunny bags as follows: Mutuku with seven bags, Ndolo with four bags, and Sanlack with one bag. He stated that an inventory was prepared, after which the luggage was reloaded and the parties proceeded to Kyumbi Police Station, where the incident was recorded. He further testified that at the police station, the owners of the luggage identified themselves as Ndolo and Mutuku. He stated that the two had previously been arrested in another incident involving the transportation of endangered species. He further testified that on 10th October 2019, they were summoned to Kyumbi Police Station, where they were informed of the results of the analysis, which confirmed that the wood was sandalwood, an endangered species. He produced the gunny bags and the inventory as exhibits.
16. On cross-examination, PW3 stated that although there is a KWS office in Machakos, they did not involve officers from that station. He testified that he did not know the names of the police officers manning the roadblock at Kyumbi. He stated that they confiscated Mpingo artifacts. They inquired from the conductor about the ownership of the luggage and that the conductor pointed out the owners, although he did not initially give their names. He stated that he knew the accused persons from before but clarified that he did not arrest them because of prior knowledge, but because of the luggage found in their possession. He testified that he boarded the motor vehicle at Kyumbi and that it was full. He stated that all passengers alighted when the vehicle was stopped and that all luggage was offloaded. He testified that the owners of the luggage were identified through the conductor both at the roadblock and at the police station. He further testified that he was not present when the motor vehicle was released. He stated that the accused persons were not forced to sign the inventory. He confirmed that no photographs were taken and that he did not know who took the photograph shown to him by the prosecutor. He testified that he recorded his statement on the same day of arrest and did not know when the driver and conductor recorded their statements. He further testified that he did not know who took the samples for analysis. He stated that the accused persons were informed of the reasons for their arrest. He further stated that each passenger took their luggage and that there were other luggage items on the carrier.
17. On re-examination, PW3 clarified that his jurisdiction covers Machakos County. He stated that according to the intelligence received, the wood was initially believed to be Mpingo, but upon forensic examination, it was confirmed to be rosewood, which is an endangered species. He further clarified that the accused persons did not deny ownership of the luggage and that they cooperated with the officers.
18. PW4, Warden III Justin Kinyua, testified that on 24th June 2019, at about 7:00 p.m., he received information regarding a suspected motor vehicle ferrying carvings made from endangered tree species. He testified that he informed his colleague, Salome Yegon, and they acted on the information. He stated that they left Kajiado at about 11:30 p.m. and proceeded to Machakos Junction along the Nairobi–Mombasa Highway, arriving there at about 2:00 a.m. At around 2:30 a.m., Motor Vehicle Registration No. KCC 080U, belonging to Sema Sacco Limited, arrived and was flagged down with the assistance of police officers. Upon inspection, they found carvings packed in gunny bags on the carrier of the vehicle. PW4 testified that the conductor identified the owners of the luggage, stating that the 1st appellant had seven gunny bags, the 2nd appellant had four gunny bags, while one bag belonged to another accused person who was not before the court. He further testified that he prepared an inventory of the recovered items dated 25th September 2019, which was signed by the officers present, the accused persons, and the driver of the motor vehicle. He stated that they directed the motor vehicle to proceed to Kyumbi Police Station, where the accused persons and the recovered items were booked under OB No. 4/25/9/19. He testified that he also discovered that the accused persons had previously been arrested with other items. He further testified that Motor Vehicle Registration No. KCC 080U belonging to Sema Sacco was detained, that the artefacts were photographed, and that two persons were arrested, whom he confirmed were before the court. He stated that he did not know the whereabouts of the third accused person but confirmed that the item found in his possession was not from an endangered species.
19. On cross-examination, PW4 testified that he knew the accused persons prior to the incident but clarified that he did not receive their names in the initial tip-off. He stated that he did not know where the accused persons had been before the interception and denied that they were immediately identified as the owners of the luggage when the vehicle was stopped.
20. He confirmed that the driver of the motor vehicle was James Malinga but he did not record statements from either the driver or the conductor. PW4 further testified that there were police officers manning the roadblock and that, upon stopping the vehicle, he and Yegon climbed onto the carrier together with the conductor. He stated that the inventory was signed at the roadblock. He added that he did not know the specific tree species used to make the artefacts at the time of arrest. He maintained that Kevin, the conductor, would have been untruthful had he claimed not to have identified the owners of the luggage, since the driver did not provide such information. He testified that when the conductor pointed out the owners, each accused person stated the number of gunny bags that belonged to him. He further testified that there were three officers, the three accused persons, and the driver were present when the inventory was signed, and that no force, intimidation, or confession was recorded. PW4 emphasized that he was not an expert capable of confirming the tree species and that at the time of arrest, the officers were acting purely on suspicion.
21. PW5 Wycliff Mauta, who has worked with Kenya Forestry Service for over 15 years and is based at Karura Nairobi in charge of wood anatomy laboratory testified that his work involves research and wood identification using internal features. He stated that he received a memo from Kyumbi police station on 10th July 2019 requesting him to identify the species of artefacts. He conducted his analysis and prepared a report dated 27th September 2019 which he produced in court. PW5 explained that the memo requested identification of seven exhibits delivered to him in seven sacks. His team carried out a random selection after coding the sacks. He examined the anatomical features such as water absorption, smell, texture, grains, wood maline and then used his microscope features specific to each species. His conclusion was that the artefacts sacks marked MK1-MK7 and OX1- OX4 were made of rosewood and the other sack marked XM1 contained items not made from an endangered species.
22. During cross-examination, PW5 stated that although he received a memo on 10th July 2019 he was not aware when the exhibits were confiscated or origin, as his role was limited to identification of the species. He added that while he may know which species are endangered his role was not to establish whether the species were endangered but only to identify them. He clarified that although the memo asked whether the species is endangered, he did not respond to that aspect because he considered the KWS to be the competent authority on endangered species.
23. PW6, Inspector Ndunda Morris in charge Forensic Machakos County testified that he was requested by the investigating officer to do forensic documentation of the exhibits in the matter. He testified that on 7th February 2020 at about 1p.m, Corporal Wamugunda of Kyumbi Police Station requested him to photograph exhibits before Machakos Law. These included Motor Vehicle KCC 080U Mitsubishi Matatu, which he took 3photos, sacks containing trophies and some trophies in small manilla bags as samples. He further stated that he took the films for processing under his supervision. He produced the certificate and photographs in court.
24. On cross examination, he stated that he is not aware of the ownership of the exhibits as his role limited to taking photos only.
25. PW7, Corporal Lawrence Wamugunda, the investigating officer, testified that on the night of 25th June 2019, he was the duty officer at the station. He stated that at about 3:00 a.m., officers from the Kenya Wildlife Service (KWS) based in Kajiado escorted three suspects together with Motor Vehicle Registration No. KCC 080U (Mitsubishi FH) to the station. He testified that the KWS officers informed him that the suspects had been found transporting endangered species in the said motor vehicle. He recorded statements from the witnesses, interrogated the suspects, and he presented them before court the following morning. He stated that the first accused had seven gunny bags, the second accused had four gunny bags, and the third accused had half a bag. He was also handed an inventory of the recovered items.
26. He further testified that on 10th July 2019, he prepared an exhibit memo form and escorted the exhibits to the Kenya Forestry Service (KFS), where an expert took samples from each bag and later returned the exhibits. On 12th September 2019, he proceeded to Makindu Handicraft to establish whether they had a permit to deal in endangered species, but none was produced. He later received a report from KFS, which confirmed that the exhibits recovered from the 1st and 2nd accused persons were made from rosewood, an endangered species, while the item recovered from the 3rd accused person was not from an endangered species. He then prepared an amended charge sheet in respect of the two accused persons who were before the court. He stated that he did not know the accused persons prior to the incident. He produced the twelve gunny bags as exhibits.
27. On cross-examination, PW7 testified that he relied on the expert report and confirmed from the relevant Schedule under the Act that rosewood is classified as an endangered species. He stated that he was informed that the accused persons had been passengers in the motor vehicle and were brought to the station together with other passengers but were later separated after inquiries were made. He confirmed that the driver of the motor vehicle was James Mutunga, who could not identify the owners of the luggage. PW7 testified that it was Kevin, PW2, the conductor, who identified the owners of the gunny bags. He added that he was not aware whether PW2 had ever indicated that he did not know the owners of the bags. He further testified that both the driver and the conductor later became hostile witnesses. He stated that he prepared the exhibit memo on 9th July 2019 and escorted the exhibits for analysis on 10th July 2019. He testified that he visited the Department of Trade and Industry in Makindu, where he was informed that they had never heard of Makindu Crafts or Arts. He further testified that KWS officers had suspected the items to be made from endangered species.
28. On re-examination, PW7 clarified that he relied on the provisions of the Wildlife Conservation and Management Act, which lists endangered species. He further clarified that he was informed that the accused persons were the owners of the gunny bags, which bore their initials.
29. With the testimony of these seven witnesses, the prosecution closed its case. Upon consideration, the court found that the prosecution had established a prima facie case, whereupon the appellants were placed on their defence. They elected to give sworn evidence and did not call any more witnesses.
C. Defence case
30. DW1, the 2nd Appellant, gave a sworn statement in which he testified that he is a trader dealing in second-hand clothes (mitumba). He stated that on 25th June 2019, he boarded Motor Vehicle Registration No. KCC 080U at Kirande en route to Nairobi to purchase second-hand clothes for resale. At about 4:00 a.m., the vehicle was stopped at Makutano Junction in Machakos, and all passengers were ordered to alight. Upon alighting, he observed several gunny bags. He testified that KWS officers held his hand and ordered him to stand behind the gunny bags, informed him that he was under arrest, and told him that he would be imprisoned. He stated that no inventory was prepared on that day and that he did not sign any such inventory. He further stated that he ordinarily signs using his initials, “J.M.”, and that the signature appearing on the inventory was not his. He testified that he has never sold carvings and that he did not have any luggage when he boarded the motor vehicle.
31. On cross-examination, DW1 confirmed that he boarded the motor vehicle on 25th June 2019. He testified that he did not know the driver but was acquainted with the conductor. He reiterated that he was travelling to Nairobi to purchase mitumba. Initially, he stated that the vehicle was a 14-seater matatu with other passengers. He testified that the vehicle was stopped by KWS officers and not police officers and that no other motor vehicle was stopped at that time. He admitted that he did not count the gunny bags but acknowledged that they contained wood carvings. He also confirmed that the other accused person was among the passengers.
32. On re-examination, DW1 clarified that he had boarded a large matatu and not a small one. He further stated that he only came to know the other accused person at the time of arrest and not before. He testified that there were many gunny bags, though he did not determine their exact number. He reiterated that he did not sign the inventory.
33. DW2, the 1st Appellant, testified that he is a farmer from Ndaine. He stated that on the material night, he boarded Motor Vehicle Registration No. KCC 080U at Mbui-Nzau stage, heading towards Makutano–Kyumbi, intending to visit his aunt in Kathiani, Machakos County. He stated that he did not know the DW1, prior to that day. He further testified that after boarding the vehicle, he fell asleep. He stated that upon reaching a roadblock at the junction, the vehicle was stopped, and he was woken up. Police officers boarded the vehicle while KWS officers remained on the ground. The driver was instructed to drive the vehicle to the police station. Upon arrival, all passengers were ordered to alight. Those who had boarded at Mbui-Nzau were asked to step forward, at which point luggage was placed on the ground. DW2 stated that the passengers were asked about the ownership of the luggage, which he denied. He testified that some passengers were taken aside and spoken to by the officers. When they returned, he was informed that he was the owner of the luggage and was arrested at about 3:00 a.m. He stated that the remaining passengers were allowed to re-board the vehicle and leave. He further testified that he declined to record a statement as demanded. At about 7:00 a.m., the head of KWS arrived, appeared angry, and again demanded that he record a statement, which he again declined. He stated that he was threatened with imprisonment and transfer to Machakos. He also declined to sign the inventory. He testified that he was travelling to visit his aunt, Alice Muthikwa, who was unwell.
34. On cross-examination, DW2 stated that his aunt resides in Kathiani. He testified that he boarded the motor vehicle at Mbui-Nzau at around midnight, intending to arrive at her home by 5.00am as the journey would take approximately four hours. He confirmed that when the motor vehicle was stopped at the junction, police officers boarded it and it was then driven to the police station. He testified that he only saw the luggage on the ground at the police station. He stated that about twelve passengers were taken aside and spoken to by the police, but ultimately, only DW1 and himself were remained at the police station. He further testified that he sells vegetables in various markets within Makueni County and that it was first time boarding that particular motor vehicle.
35. On re-examination, DW2 clarified that he came to know DW1 on the day of arrest. He testified that there was a pickup truck under arrest at the junction carrying sacks, and that the sacks he later saw at the police station had been offloaded from that pickup truck. He stated that there was nothing unusual about visiting his aunt early in the morning.
36. After the close of the defence case the appellants filed their submissions and the matter was scheduled for delivery of the judgment.
37. The trial court found the appellant guilty of the offence charged. In sentencing, the trial court considered the probation officer’s report and the ages of the accused persons and fined each accused Kshs 2 million in default to serve 3 years imprisonment.
D. The Appeal
38. The appeal is as set out in the earlier paragraphs of this judgment. The appellants seeks that their conviction be quashed and the sentence set aside. The appellant rely on written submissions dated 9th April 2025 and 6th October 2025 while the respondent relies on its submissions dated 26th November 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
39. The Appellant challenges both the conviction and sentence imposed by the trial court for the offence of being in possession of endangered wildlife trophies contrary to section 92(4) of the Wildlife Conservation and Management Act, 2013. He submits that the conviction was unsafe for want of proof beyond reasonable doubt and that the sentence imposed was harsh, excessive, and imposed without due regard to material mitigating factors.
40. On conviction, the Appellant contends that the prosecution evidence did not meet the requisite threshold to sustain a conviction. He points out that PW1, the driver of the vehicle, expressly stated that he did not know the contents of the gunny bags and could not identify the passengers or the owners of the luggage, particularly as the incident occurred at night. Similarly, PW2, the conductor, testified that he could not identify the owners of the luggage and acknowledged that several passengers were on board, thereby weakening the prosecution’s assertion that the Appellant was in possession of the exhibits. The Appellant argues that possession, being a key ingredient of the offence was not proved. The Appellant further submits that the evidence of PW3, the arresting KWS officer, was contradictory and doubtful particularly regarding the identification of the luggage owners and the manner in which the arrest was conducted. He contends that the arrest was founded on mere suspicion rather than concrete evidence, contrary to the holding in Sawe v Republic. The Appellant also faults the failure to involve local KWS officers and the unexplained release of a co-accused person.
41. The Appellant further submits that the chain of custody was not properly established. He points out that no photographs were taken at the scene, inventories were allegedly signed at the roadblock and forensic photographs were taken later at the police station by officers who could not confirm ownership or origin of the exhibits. The Appellant argues that this created a real possibility of fabrication or misidentification of exhibits. Additionally, he submits that none of the prosecution witnesses had the requisite expertise to conclusively identify the exhibits as endangered wildlife trophies. He contends that the prosecution failed to prove common intention under section 21 of the Penal Code as no evidence was tendered to show a meeting of minds or joint participation between the Appellant and any co-accused.
42. Regarding his defence, the Appellant submits that the trial court failed to consider his plausible explanation that he was merely a passenger travelling to purchase second-hand clothing and that he had never sold carvings. He argues that the defence evidence was neither evaluated nor rejected with reasons, contrary to settled principles of criminal justice. He reiterates that the burden of proof lay entirely with the prosecution, as underscored in Woolmington v DPP [1935] A.C 462 and Sekitoliko v Uganda [1967] EA 53.
43. On sentence, the Appellant filed supplementary submissions urging the Court to interfere with the custodial sentence imposed. He submits that the trial court acted on wrong principles and overlooked material mitigating factors. He highlights that he is a first offender, elderly of 68 years old and suffers from serious and chronic medical conditions, including hypertension, severe rheumatoid arthritis and early-stage renal failure, which require continuous medication and frequent medical review.
44. The Appellant invokes Articles 43, 50 (2) and 57 of the Constitution, arguing that his right to the highest attainable standard of health, fair trial and dignity as an older person should inform the sentencing outcome. He submits that his continued incarceration amounts to excessive and disproportionate punishment in light of his medical condition. He further relies on the Judiciary Sentencing Policy Guidelines (2016) particularly the objectives of sentencing, the preference for non-custodial sentences where appropriate, and the guidance on sentencing elderly and terminally ill offenders. He argues that the period already served has sufficiently met the objectives of punishment, deterrence, and rehabilitation.
45. While citing the case of Nelson v Republic [1970] E.A 599 and the case of Thomas Mwambu Wenyi versus Republic [2017] eKLR, the Appellant submits that the appellate court is entitled to interfere where a sentence is manifestly excessive or where the trial court overlooked material considerations. He urges the Court to substitute the custodial sentence with a non-custodial sentence, including a Community Service Order or in the alternative, to substantially reduce the custodial term.
46. In conclusion, the Appellant prays that the conviction be quashed and the sentence set aside. In the alternative, he urges the Court to exercise its discretion and impose a non-custodial sentence or grant appropriate sentencing relief in light of the exceptional circumstances presented.
b) Respondent’s Submissions
47. The Respondent began its submis
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