(Being an Appeal from the Judgment, Conviction, and Sentence delivered by Hon. E.K. Usui, Chief Magistrate, in Malindi Chief Magistrate’s Court Criminal Case No. E227 of 2025 delivered on 11th November 2025)
1. Introduction
1. The Appellant, Katana Mwamutsi Hanjare, alongside another individual ( Charo Menza Lugo ), was charged before the Chief Magistrate's Court at Malindi in Criminal Case No. E227 of 2025 with the offence of Being in Possession of Endangered Wildlife Trophy Without Permit or Other Lawful Exemption, contrary to Section 92(4) as read with Section 105 of the Wildlife Conservation and Management Act, Cap 376 of the Laws of Kenya.
2. Upon full trial, the trial court found the Appellant guilty as charged, convicted him under Section 215 of the Criminal Procedure Code (Cap 75), and sentenced him to serve five (5) years imprisonment.
3. Aggrieved by both the conviction and the sentence, the Appellant lodged this first appeal, challenging the decision of the learned Chief Magistrate.
2. Background
4. The particulars of the charge against the Appellant were that on the 23rd day of March 2025 at around 1800 hrs in the Marekebuni Area, Magarini Sub-County within Kilifi County, jointly with another, was found in possession of an endangered wildlife trophy, namely two (2) pieces of elephant tusks weighing 10 kilograms, with an estimated street value of Kshs. 1,000,000/-, transported on a motor cycle registration number KMEH 456G (also referred to as KCMEH 564 in subsequent proceedings), concealed in a green sack, without a valid permit or lawful exemption granted under the Act.
5. The Appellant entered a plea of not guilty, leading to a full trial where the Prosecution called five (5) witnesses. Upon being placed on his defence pursuant to Section 211 of the Criminal Procedure Code, the Appellant gave sworn evidence.
6. In a judgment delivered on 11 th November 2025, the trial magistrate that the Prosecution had proved its case beyond reasonable doubt against both accused persons, resulting in the 5-year custodial sentence against the Appellant.
3. Grounds of Appeal
7. Through his Amended Grounds of Appeal filed pursuant to Section 350(2)(v) of the Criminal Procedure Code, the Appellant contested the decision of the lower court on six (6) main grounds, summarized as follows:
a) The learned trial magistrate erred in law and fact by failing to properly evaluate and analyze the prosecution evidence (PW1, PW3, PW4, and PW5), specifically failing to note that the evidence regarding the sack containing the trophies was scanty and stereotypical.
b) The trial court erred in relying on prosecution evidence riddled with material inconsistencies, discrepancies, and contradictions regarding the chain of custody and inventory dates, contrary to Section 163(3)(c) of the Evidence Act.
c) The trial magistrate erred in failing to consider that the Prosecution produced no call logs, digital forensic evidence, or expert testimony from telecommunication providers (Safaricom/Airtel) to corroborate claims of phone communication between officers and the informer, contrary to Section 107(1) of the Evidence Act.
d) The trial court erred in finding that the Prosecution had discharged its burden of proof beyond reasonable doubt under Section 109 of the Evidence Act.
e) The trial magistrate erred in failing to give due consideration to the Appellant’s plausible defence.
f) The trial court erred in imposing a sentence that was harsh, excessive, and unjust in the circumstances.
4. Submissions by Parties
A. Appellant’s Submissions
8. In his written submissions drawn and filed from Malindi Main Prison, the Appellant submitted that this Court, as a first appellate court, is duty-bound under the doctrine in Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336 to re-evaluate the entire evidence afresh and arrive at its own independent findings.
9. The Appellant argued that the Prosecution failed to satisfy the legal threshold of proof beyond reasonable doubt established in Miller v. Minister of Pensions [1947] 2 All ER 372 . He highlighted major contradictions in the Prosecution’s case, including:
a) Discrepancies in the chain of custody dates between police OB reports ( 23/03/2025 ) and KWS exhibit/weighing records dated 23/03/2024 .
b) Direct contradiction between PW1 (who testified that Accused 2 was the rider ) and PW3 (who testified that Accused 1 was the rider ).
10. The Appellant further submitted that failure to call the key informer deprived him of his constitutional right to cross-examine critical witnesses under Article 50 of the Constitution, citing Edward s/o Msengna v. Regnam (1942) EACA 553 and Mwenda Maithya v. Republic (2023) eKLR .
11. Finally, regarding sentence, the Appellant submitted that he is a first-time offender, genuinely remorseful, and has young children and a wife depending on him, making the 5-year custodial sentence disproportionately harsh.
B. Respondent’s Submissions
12. The Respondent strongly opposed the appeal.
13. On the role of the appellate court, the Respondent conceded to the principles in Okeno v. Republic and Mark Oiruri Mose v. Republic (2013) eKLR , emphasizing that the appellate court must give due allowance to the fact that the trial judge observed the witnesses' live demeanor.
14. Responding to Ground 1 , the Respondent submitted that there were no fundamental contradictions in the testimony of the five prosecution witnesses. Relying on Richard Munene v. Republic [2018] eKLR and Erick Onyango Ondeng' v. Republic (2014) eKLR , the Respondent argued that minor or trifling discrepancies do not warrant rejection of evidence unless they go to the root of the charge or show deliberate untruthfulness.
15. Responding to Ground 2 & 3 , the Respondent submitted that all core ingredients of the offence under Section 95 of the Act were proved beyond reasonable doubt:
a) Possession: Established through PW1, PW3, PW4, and PW5 who intercepted the Appellant. The recovered tusks were produced as P. Exhibit 1 , and the expert analysis report by PW2 (Research Scientist, NMK) was produced as P. Exhibit 8 confirming the trophy belonged to an endangered elephant.
b) Lack of Permit: The Appellant failed to produce any valid permit or exemption authorizing possession.
16. The Respondent urged that the Appellant’s defense constituted a mere denial unsupported by evidence, which failed to dislodge the Prosecution's watertight case. Consequently, the Respondent prayed that the appeal be dismissed in its entirety and the conviction and sentence upheld.
5. Summary of Evidence Adduced Before the Lower Court
Prosecution Case
17. PW1 (Sergeant Habil Mbogo, KWS): Testified that on 23rd March 2025, he received intelligence regarding suspects looking for buyers of elephant tusks at Marekebuni Junction. He assembled a team comprising Rangers Juma, Musyoka, Isiche, and Musembi. Posing as prospective buyers in an unmarked vehicle, they intercepted a motorcycle carrying two individuals with a green sack. Upon search, two elephant tusks weighing 10 kg were recovered. An inventory was executed on 23rd March 2025.
18. PW2 (Esther Nguta, Research Scientist - National Museums of Kenya): Examined the recovered exhibits and compiled an Analysis Report ( P. Exhibit 8 ), confirming that the two pieces were genuine ivory tusks derived from a mature elephant ( Loxodonta africana ), a protected/endangered species under CITES.
19. PW3, PW4, and PW5 (KWS Rangers): Corroborated PW1’s evidence regarding the ambushing, pursuit, arrest, and recovery of the green sack containing the elephant tusks at the scene.
Defence Case
20. In his sworn testimony, the Appellant ( DW2 ) admitted being at the scene on the motorcycle but asserted that he was merely a passenger/rider who had been given a sealed package by a third party for transport/delivery without knowledge of its contents. He denied having control or knowledge of the elephant tusks.
6. Issues for Determination
21. Having re-evaluated the entire record of the lower court, the grounds of appeal, and the written submissions of both parties, the following three key issues arise for determination:
(i) Whether the Prosecution proved the legal ingredients of the charge of being in possession of an endangered wildlife trophy beyond reasonable doubt.
(ii) Whether the alleged inconsistencies in evidence, procedural gaps, and non-calling of the informer were fatal to the Prosecution's case.
(iii) Whether the Appellant’s defence was properly evaluated, and whether the sentence imposed was lawful and appropriate.
7. Legal Analysis
(i) Whether the Prosecution proved the legal ingredients of the charge of being in possession of an endangered wildlife trophy beyond reasonable doubt.
22. The Appellant was charged under Section 92(4) as read with Section 105 of the Wildlife Conservation and Management Act, Cap 376. To secure a conviction for unlawful possession of a wildlife trophy, the Prosecution must establish three elements beyond a reasonable doubt:
(i) Physical control or custody of the trophy;
(ii) Knowledge/mens rea that the item possessed was a wildlife trophy; and
(iii) Absence of a valid permit or statutory exemption.
23. On physical custody, the uncontroverted evidence of PW1, PW3, PW4, and PW5 confirms that the Appellant and his co-accused were intercepted while physically transporting a green sack on motorcycle registration KMEH 456G.
24. Scientific evidence presented by PW2 ( P. Exhibit 8 ) conclusively established that the recovered items were genuine elephant tusks weighing 10 kg. The Appellant did not produce any statutory permit under Cap 376 authorizing possession. Thus, physical control and lack of authorization were firmly established.
(ii) Whether the alleged inconsistencies in evidence, procedural gaps, and non-calling of the informer were fatal to the Prosecution's case.
25. The Appellant made much of the contradiction between PW1 and PW3 regarding who was actually riding the motorcycle ( Accused 1 vs. Accused 2 ), as well as typographical errors in date documentation 2024 vs. 2025 .
26. As held in Richard Munene v. Republic [2018] eKLR and Erick Onyango Ondeng' v. Republic (2014) eKLR , it is not every minor variance or typographical mistake that vitiates a trial. Where two individuals are jointly caught on a single motorcycle carrying a single contraband package, joint physical control is established regardless of who held the handlebars. The inconsistency as to who was steering is minor and does not go to the root of joint physical possession.
27. Regarding the failure to call the confidential informer or produce telecommunication call logs, Section 132 of the Evidence Act dictates that no particular number of witnesses is required to prove a fact. Since the arresting officers ( PW1, PW3, PW4, PW5 ) personally executed the operation and recovered the exhibits at the scene, the informer's testimony was non-essential, and no prejudice was suffered by the Appellant.
(iii) Whether the Appellant’s defence was properly evaluated, and whether the sentence imposed was lawful and appropriate.
28. The Appellant’s defence that he was an innocent courier carrying an unknown package was carefully considered by the trial magistrate. Under Section 111 of the Evidence Act, when a fact is especially within the knowledge of an accused person, the burden of proving that fact lies upon him. The Appellant provided no details, names, or evidence regarding the alleged third party who handed him the green sack. The trial court correctly classified this as an uncorroborated mere denial.
29. On sentence, Section 92(4) of the Wildlife Conservation and Management Act sets a mandatory statutory minimum penalty of a fine not less than Kshs. 3,000,000/- or imprisonment for a term of not less than five (5) years, or both. The trial court imposed a custodial sentence of five (5) years, which is the absolute minimum custodial term prescribed by Parliament under the statute. Consequently, the sentence is lawful and cannot be interfered with.
8. Disposition & Final Orders
30. In the premises, this Court finds that the Appellant’s conviction by the Chief Magistrate's Court at Malindi in Criminal Case No. E227 of 2025 was based on solid, lawful, and sufficient evidence.
31. Accordingly, the Court issues the following final orders:
a) The Appeal against both conviction and sentence is hereby dismissed in its entirety.
b) The conviction and sentence passed by the trial court on 11 th November 2025 are hereby affirmed.
32. Right of Appeal within 14 days
33. It is so ordered.
DATED AND DELIVERED AT MALINDI THIS …21 st … DAY OF SEPTEMBER, 2026
C.AKAIGWA
JUDGE
Page 2 of 2
1. Introduction
1. The Appellant, Katana Mwamutsi Hanjare, alongside another individual ( Charo Menza Lugo ), was charged before the Chief Magistrate's Court at Malindi in Criminal Case No. E227 of 2025 with the offence of Being in Possession of Endangered Wildlife Trophy Without Permit or Other Lawful Exemption, contrary to Section 92(4) as read with Section 105 of the Wildlife Conservation and Management Act, Cap 376 of the Laws of Kenya.
2. Upon full trial, the trial court found the Appellant guilty as charged, convicted him under Section 215 of the Criminal Procedure Code (Cap 75), and sentenced him to serve five (5) years imprisonment.
3. Aggrieved by both the conviction and the sentence, the Appellant lodged this first appeal, challenging the decision of the learned Chief Magistrate.
2. Background
4. The particulars of the charge against the Appellant were that on the 23rd day of March 2025 at around 1800 hrs in the Marekebuni Area, Magarini Sub-County within Kilifi County, jointly with another, was found in possession of an endangered wildlife trophy, namely two (2) pieces of elephant tusks weighing 10 kilograms, with an estimated street value of Kshs. 1,000,000/-, transported on a motor cycle registration number KMEH 456G (also referred to as KCMEH 564 in subsequent proceedings), concealed in a green sack, without a valid permit or lawful exemption granted under the Act.
5. The Appellant entered a plea of not guilty, leading to a full trial where the Prosecution called five (5) witnesses. Upon being placed on his defence pursuant to Section 211 of the Criminal Procedure Code, the Appellant gave sworn evidence.
6. In a judgment delivered on 11 th November 2025, the trial magistrate that the Prosecution had proved its case beyond reasonable doubt against both accused persons, resulting in the 5-year custodial sentence against the Appellant.
3. Grounds of Appeal
7. Through his Amended Grounds of Appeal filed pursuant to Section 350(2)(v) of the Criminal Procedure Code, the Appellant contested the decision of the lower court on six (6) main grounds, summarized as follows:
a) The learned trial magistrate erred in law and fact by failing to properly evaluate and analyze the prosecution evidence (PW1, PW3, PW4, and PW5), specifically failing to note that the evidence regarding the sack containing the trophies was scanty and stereotypical.
b) The trial court erred in relying on prosecution evidence riddled with material inconsistencies, discrepancies, and contradictions regarding the chain of custody and inventory dates, contrary to Section 163(3)(c) of the Evidence Act.
c) The trial magistrate erred in failing to consider that the Prosecution produced no call logs, digital forensic evidence, or expert testimony from telecommunication providers (Safaricom/Airtel) to corroborate claims of phone communication between officers and the informer, contrary to Section 107(1) of the Evidence Act.
d) The trial court erred in finding that the Prosecution had discharged its burden of proof beyond reasonable doubt under Section 109 of the Evidence Act.
e) The trial magistrate erred in failing to give due consideration to the Appellant’s plausible defence.
f) The trial court erred in imposing a sentence that was harsh, excessive, and unjust in the circumstances.
4. Submissions by Parties
A. Appellant’s Submissions
8. In his written submissions drawn and filed from Malindi Main Prison, the Appellant submitted that this Court, as a first appellate court, is duty-bound under the doctrine in Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336 to re-evaluate the entire evidence afresh and arrive at its own independent findings.
9. The Appellant argued that the Prosecution failed to satisfy the legal threshold of proof beyond reasonable doubt established in Miller v. Minister of Pensions [1947] 2 All ER 372 . He highlighted major contradictions in the Prosecution’s case, including:
a) Discrepancies in the chain of custody dates between police OB reports ( 23/03/2025 ) and KWS exhibit/weighing records dated 23/03/2024 .
b) Direct contradiction between PW1 (who testified that Accused 2 was the rider ) and PW3 (who testified that Accused 1 was the rider ).
10. The Appellant further submitted that failure to call the key informer deprived him of his constitutional right to cross-examine critical witnesses under Article 50 of the Constitution, citing Edward s/o Msengna v. Regnam (1942) EACA 553 and Mwenda Maithya v. Republic (2023) eKLR .
11. Finally, regarding sentence, the Appellant submitted that he is a first-time offender, genuinely remorseful, and has young children and a wife depending on him, making the 5-year custodial sentence disproportionately harsh.
B. Respondent’s Submissions
12. The Respondent strongly opposed the appeal.
13. On the role of the appellate court, the Respondent conceded to the principles in Okeno v. Republic and Mark Oiruri Mose v. Republic (2013) eKLR , emphasizing that the appellate court must give due allowance to the fact that the trial judge observed the witnesses' live demeanor.
14. Responding to Ground 1 , the Respondent submitted that there were no fundamental contradictions in the testimony of the five prosecution witnesses. Relying on Richard Munene v. Republic [2018] eKLR and Erick Onyango Ondeng' v. Republic (2014) eKLR , the Respondent argued that minor or trifling discrepancies do not warrant rejection of evidence unless they go to the root of the charge or show deliberate untruthfulness.
15. Responding to Ground 2 & 3 , the Respondent submitted that all core ingredients of the offence under Section 95 of the Act were proved beyond reasonable doubt:
a) Possession: Established through PW1, PW3, PW4, and PW5 who intercepted the Appellant. The recovered tusks were produced as P. Exhibit 1 , and the expert analysis report by PW2 (Research Scientist, NMK) was produced as P. Exhibit 8 confirming the trophy belonged to an endangered elephant.
b) Lack of Permit: The Appellant failed to produce any valid permit or exemption authorizing possession.
16. The Respondent urged that the Appellant’s defense constituted a mere denial unsupported by evidence, which failed to dislodge the Prosecution's watertight case. Consequently, the Respondent prayed that the appeal be dismissed in its entirety and the conviction and sentence upheld.
5. Summary of Evidence Adduced Before the Lower Court
Prosecution Case
17. PW1 (Sergeant Habil Mbogo, KWS): Testified that on 23rd March 2025, he received intelligence regarding suspects looking for buyers of elephant tusks at Marekebuni Junction. He assembled a team comprising Rangers Juma, Musyoka, Isiche, and Musembi. Posing as prospective buyers in an unmarked vehicle, they intercepted a motorcycle carrying two individuals with a green sack. Upon search, two elephant tusks weighing 10 kg were recovered. An inventory was executed on 23rd March 2025.
18. PW2 (Esther Nguta, Research Scientist - National Museums of Kenya): Examined the recovered exhibits and compiled an Analysis Report ( P. Exhibit 8 ), confirming that the two pieces were genuine ivory tusks derived from a mature elephant ( Loxodonta africana ), a protected/endangered species under CITES.
19. PW3, PW4, and PW5 (KWS Rangers): Corroborated PW1’s evidence regarding the ambushing, pursuit, arrest, and recovery of the green sack containing the elephant tusks at the scene.
Defence Case
20. In his sworn testimony, the Appellant ( DW2 ) admitted being at the scene on the motorcycle but asserted that he was merely a passenger/rider who had been given a sealed package by a third party for transport/delivery without knowledge of its contents. He denied having control or knowledge of the elephant tusks.
6. Issues for Determination
21. Having re-evaluated the entire record of the lower court, the grounds of appeal, and the written submissions of both parties, the following three key issues arise for determination:
(i) Whether the Prosecution proved the legal ingredients of the charge of being in possession of an endangered wildlife trophy beyond reasonable doubt.
(ii) Whether the alleged inconsistencies in evidence, procedural gaps, and non-calling of the informer were fatal to the Prosecution's case.
(iii) Whether the Appellant’s defence was properly evaluated, and whether the sentence imposed was lawful and appropriate.
7. Legal Analysis
(i) Whether the Prosecution proved the legal ingredients of the charge of being in possession of an endangered wildlife trophy beyond reasonable doubt.
22. The Appellant was charged under Section 92(4) as read with Section 105 of the Wildlife Conservation and Management Act, Cap 376. To secure a conviction for unlawful possession of a wildlife trophy, the Prosecution must establish three elements beyond a reasonable doubt:
(i) Physical control or custody of the trophy;
(ii) Knowledge/mens rea that the item possessed was a wildlife trophy; and
(iii) Absence of a valid permit or statutory exemption.
23. On physical custody, the uncontroverted evidence of PW1, PW3, PW4, and PW5 confirms that the Appellant and his co-accused were intercepted while physically transporting a green sack on motorcycle registration KMEH 456G.
24. Scientific evidence presented by PW2 ( P. Exhibit 8 ) conclusively established that the recovered items were genuine elephant tusks weighing 10 kg. The Appellant did not produce any statutory permit under Cap 376 authorizing possession. Thus, physical control and lack of authorization were firmly established.
(ii) Whether the alleged inconsistencies in evidence, procedural gaps, and non-calling of the informer were fatal to the Prosecution's case.
25. The Appellant made much of the contradiction between PW1 and PW3 regarding who was actually riding the motorcycle ( Accused 1 vs. Accused 2 ), as well as typographical errors in date documentation 2024 vs. 2025 .
26. As held in Richard Munene v. Republic [2018] eKLR and Erick Onyango Ondeng' v. Republic (2014) eKLR , it is not every minor variance or typographical mistake that vitiates a trial. Where two individuals are jointly caught on a single motorcycle carrying a single contraband package, joint physical control is established regardless of who held the handlebars. The inconsistency as to who was steering is minor and does not go to the root of joint physical possession.
27. Regarding the failure to call the confidential informer or produce telecommunication call logs, Section 132 of the Evidence Act dictates that no particular number of witnesses is required to prove a fact. Since the arresting officers ( PW1, PW3, PW4, PW5 ) personally executed the operation and recovered the exhibits at the scene, the informer's testimony was non-essential, and no prejudice was suffered by the Appellant.
(iii) Whether the Appellant’s defence was properly evaluated, and whether the sentence imposed was lawful and appropriate.
28. The Appellant’s defence that he was an innocent courier carrying an unknown package was carefully considered by the trial magistrate. Under Section 111 of the Evidence Act, when a fact is especially within the knowledge of an accused person, the burden of proving that fact lies upon him. The Appellant provided no details, names, or evidence regarding the alleged third party who handed him the green sack. The trial court correctly classified this as an uncorroborated mere denial.
29. On sentence, Section 92(4) of the Wildlife Conservation and Management Act sets a mandatory statutory minimum penalty of a fine not less than Kshs. 3,000,000/- or imprisonment for a term of not less than five (5) years, or both. The trial court imposed a custodial sentence of five (5) years, which is the absolute minimum custodial term prescribed by Parliament under the statute. Consequently, the sentence is lawful and cannot be interfered with.
8. Disposition & Final Orders
30. In the premises, this Court finds that the Appellant’s conviction by the Chief Magistrate's Court at Malindi in Criminal Case No. E227 of 2025 was based on solid, lawful, and sufficient evidence.
31. Accordingly, the Court issues the following final orders:
a) The Appeal against both conviction and sentence is hereby dismissed in its entirety.
b) The conviction and sentence passed by the trial court on 11 th November 2025 are hereby affirmed.
32. Right of Appeal within 14 days
33. It is so ordered.
DATED AND DELIVERED AT MALINDI THIS …21 st … DAY OF SEPTEMBER, 2026
C.AKAIGWA
JUDGE
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