1. The Appellants were charged with the offence of dealing in a specified endangered wildlife species without a permit or other lawful exemptions contrary to Section 92(2) of the Wildlife Conservation and Management Act. The particulars of the offence are that on 12.1.22 at around 1700 hrs at Mitsiktsini village Kayafungo location, Kaloleni subcounty within Kilifi County, jointly with others not before court were found dealing in wildlife trophy namely 2 pieces of elephant tusks weighing 53.5kg with a street value of Kshs. 5,350,000/= and at the time of doing so, did not have a permit or other lawful exemption under the Act.
2. The Appellants faced a second count of being in possession of wildlife trophy of an endangered species without a permit or lawful exemptions, contrary to Section 92(4) of the Wildlife Conservation and Management Act. The particulars of the offence are that on same date at the same time in the same place, jointly with others not before court were found in possession of the said and at the time of doing so, did not have a permit or other lawful exemption under the Act.
3. Following trial, the Appellants were convicted of both counts and each sentenced to pay a fine of Kshs. 1,000,000/= and in default serve 5 years imprisonment for each count.
4. Being aggrieved, each of the Appellants separately filed appeals challenging their conviction and sentence. The Appeals were consolidated by an order of the Court dated 8.8.24.
5. The Appellants filed amended grounds of appeal jointly. The summarized grounds are that the trial court erred in both law and fact by:
i) failing to find that the elements of the offence of dealing and being in possession of wildlife trophy were not proved to the required standard.
ii) failing to appreciate that the conviction and sentence amounted to double jeopardy and double punishment for 2 counts that occurred in the same transaction contrary to Section 279 of the Criminal Procedure Code and Article 50(2)(o) of the Constitution.
iii) meting a sentence that was manifestly harsh and excessive and urged that the same be reviewed to run concurrently.
6. The Appellants prayed that their appeals be allowed, the conviction quashed and sentence set aside.
7. The Appeal is opposed by the Respondent vide submissions dated 6.8.24.
8. As a first appellate Court, I have subjected the evidence adduced before the trial court to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
9. The facts as can be gleaned from the record are that the Appellants were arrested in an operation as they were in the process of selling elephant tasks to Kenya Wildlife Service (KWS) officers. PW1 July Odhiambo, from the Mombasa KWS investigation unit, testified that following a tip off, she and PW5, Assistant Warder Dickson Munene met the 1st Appellant on 10.1.22 at Mitsikitsini area, Kaloleni, who told them he had elephant tusks for sale. They negotiated a price of Kshs. 25,000/= per kilo. On 12.1.22 the agreed date to finalise the transaction, PW1 and PW5 were accompanied by colleagues PW4 Jackline Maiyo, PW2 Paul Maina, PW3 Paul Maccan and driver Njagi. They went in 2 vehicles. The first vehicle consisted of PW1, PW2 and Njagi as buyers and the second had PW2, PW3 and PW4 as back-up. The testimony of PW1 was corroborated by PW2, PW3 and PW4.
10. PW1 went on to state that they met the 1st Appellant at Masono Bandi who boarded their vehicle and guided them to where the tusks were in Mitsikitsini area. After a few kilometres, he instructed them to stop and the 2nd and 3rd Appellants appeared and left with the 1st Appellant. They returned later with the 1st and 2nd Appellants carrying the tusks with the 3rd Appellant following them from behind. After they loaded the tusks into the vehicle, PW1 signalled the back-up team who arrested the Appellants. The tusks and the Appellants were taken to Kaloleni Police Station in the back-up vehicle, a pick-up. At the police station, the tusks were weighed and found to be 53.5kg. PW3 prepared the inventory and a weighing certificate.
11. On the ground that the elements of the offences of dealing and being in possession of wildlife trophy were not proved to the required standard, the Appellants submitted that the evidence states that at 1700 hours when the alleged incident occurred, the Appellants were at the police station which is not the scene of crime. Further that none of the Appellants was photographed with the tusks and that the photographs could have been downloaded from any social media site and produced as evidence. As such, it was not demonstrated that the Appellants handled the tusks. They contend that the inventory ought to have been filled at the alleged crime scene where the recovery and weighing was done and not at the police station. They asserted that there was no recovery on them as alleged and hence no recent possession or dealing with the tusks. To buttress their submissions, they relied on the case of David Mugo Kimunge v Republic [2015] eKLR.
12. The Respondent submitted that the prosecution proved that the Appellants were in possession of trophies which they were selling when PW1 and her team posed as potential buyers.
13. In the cited case of David Mugo Kimunge v Republic [2015] eKLR, the Court of Appeal considered the doctrine of recent possession and stated:
16. The doctrine of recent possession has been applied in numerous decisions of this court and the High court properly cited the Kahiga case (supra) as one for the elements necessary for proof. We may reproduce the elements from that case:
“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.
In other words, there must be positive proof:
i). that the property was found with the suspect;
ii). that the property is positively the property of the complainant;
iii). that the property was stolen from the complainant;
iv). that the property was recently stolen from the complainant.
The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”
14. The evidence on record shows that the 1st Appellant led PW1 and her team to where the tusks in question were, in Mitsikitsini area. When they stopped the vehicle on his instructions, the 2nd and 3rd Appellants appeared and left with the 1st Appellant. They returned later with the 1st and 2nd Appellants carrying the tusks, with the 3rd Appellant following them closely. The fact of their possession of the tusks was clear from the evidence. The claim that the pictures did not capture the Appellants holding the tusks or that it cannot be established whether the pictures were taken at the police station or downloaded from any social media site, does not negate the evidence that the Appellants were in actual possession of the tusks. The test in the David Mugo Kimunge case (supra) was thus met.
15. The Appellants have impugned the inventory. They contend that the filling of the same at the police station and not at the alleged scene, rendered the inventory invalid. As such, there was no proof of recent possession or dealing with the alleged trophies by the Appellants.
16. The inventory on record lists 2 elephant tusks and 2 sacks. The weighing was done in the presence of the Appellants. The inventory was signed by all the Appellants with the 3rd Appellant affixing his thumb print confirming the same was done in their presence. The Appellant have not said or even suggested that the signatures are not theirs. The fact of the weighing being done at the police station did not shake the prosecution case.
17. In Francis Kioi Karanja & 3 others v Director of Public Prosecutions [2021] eKLR, Ogembo, J. considered and rejected a somewhat similar challenge to an inventory and stated:
The inventory must surely have been of all the items recovered. The appellants must have signed the same. This is buttressed by the fact that nowhere during the trial is it on record that the appellants were coerced into signing same.
18. I have also noted from the record that the Appellants did not, in the trial court, challenge the fact that they were not in the photographs. Similarly, they did not challenge the inventory and the place it was done. These are new issues which having not been raised in the trial court, no decision was made thereon. As such, this Court sitting on appeal cannot make a decision on the same. An appeal can only lie where there has been a decision made by a lower court. This was the holding in Kipkorir v Republic (Criminal Appeal E056 of 2022) [2024] KECA 745 (KLR) (21 June 2024) (Judgment) where the Court of Appeal stated:
We are of the considered opinion that this court sitting as a second appellate court can only entertain matters that were considered by the court being appealed from. An appeal can only lie where there has been a decision made by a lower court. If an issue was not brought up before the lower court, and therefore not determined, then any decision made by the appellate court would not be considered a judgment on an appeal.
19. The Appellants further submitted that the record is replete with material contradictions that are capable of unseating the verdict. They argue that the alleged time of recovery of the tusks cannot be ascertained whether it was 4pm, 5pm or 6pm. Additionally, that the scene of crime was not established as to whether it was Msono Mbadi, Bari or Bandi of Mitsikitsini or Kaloleni Police Station. Further, that the existence of the motor vehicle in which the alleged tusks were recovered was also never established. The Appellants faulted the trial court for failing to evaluate the discrepancies which go to the root core of the matter. For the Respondent, its was submitted that the charge sheet indicates that the scene of crime was Mitsiksini village
20.
21. I have looked at the record. The charge sheet clearly indicates that the offence took place at Mitsiksini village. The prosecution witnesses testified that after meeting the 1st Appellant at Masono Bandi, he led them to Mitsikitsini area where the tusks were. That is where they brought the tusks to them with the 3rd Appellant in tow and that is where they were arrested. It is clear from the evidence where the offence took place and I do not see any contradiction in the prosecution evidence.
22. I now turn to the ground that failing to appreciate that the conviction and sentence amounted to double jeopardy and double punishment for 2 counts that occurred in the same transaction contrary to Section 279 of the Criminal Procedure Code and Article 50(2)(o) of the Constitution. The Appellants submitted that they were charged and convicted of the offences of dealing and possession which were from in the same transaction. Their contention is that one cannot be there without the other and so to convict and sentence them to the 2 counts on the same facts amounts to double jeopardy. They argued that the one of the sentences ought to have been suspended. The Respondent submitted that the 2 counts with which the Appellants were charged are well provided for in statute and did not amount to double jeopardy.
23. Black’s Law Dictionary, Tenth Edition defines double jeopardy as the fact of being prosecuted or sentenced twice for substantially the same offence.
24. The principle of double jeopardy has constitutional underpinning. Article 50(2) of the Constitution guarantees to every accused person the right to a fair trial which includes inter alia the right not to be subjected to double jeopardy as follows:
(2) Every accused person has the right to a fair trial, which includes the right—.
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.
25. The double jeopardy principle safeguards individuals from facing in respect of an act or omission for which he has previously been tried. It is immaterial that such person is convicted or acquitted. Such person cannot be prosecuted again for that same offence.
26. The law allows a person who has been charged, to plead double jeopardy where such person has been previously tried for the same offence. Section 279 of the Criminal Procedure Code provides:
(1) An accused person against whom an information is filed may plead—
(a) that he has been previously convicted or acquitted of the same offence; or
(b) that he has obtained the President’s pardon for his offence.
(2) If either of those pleas are pleaded and denied to be true, the court shall try whether the plea is true or not.
(3) If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that it is false, the accused shall be required to plead to the information.
27. The offences with which the Appellants were charged are separate and distinct notwithstanding that they arise from the same transaction. Each offence is provided for under different sections of the Act with each requiring proof of distinct ingredients. The Appellants had not been previously tried for the same offences. As such, they have not been subjected to double jeopardy Accordingly, this ground fails.
28. In the final ground, the Appellants faulted the trial court for meting a sentence on both counts without ordering that the same run concurrently. They contend that this is manifestly harsh and excessive. They urged the Court to review their sentence and take into account the period spent in custody pending trial. They further urged the Court to consider that they are first offenders and family men and that the 3rd Appellant is 79 years old with health issues. His continued incarceration may constitute a violation of his right to a just and proportionate punishment. They urged for alternative punishment for him.
29. Section 92(2) of the Act provides that a person convicted of the offence of dealing in a wildlife trophy, of any critically endangered or endangered species is liable to a term of imprisonment of not less than seven years. Section 92(4) provides that a person convicted of the offence of being in possession is liable to a fine of not less than 3 million shillings or a term of imprisonment of not less than 5 years or both such fine and imprisonment.
30. Upon the conviction of the Appellants, the trial Magistrate considered their mitigation and sentenced them to a fine of Kshs. 1,000,000/= each and in default serve 5 years imprisonment. The sentence was within the range provided under the Act and cannot be said to be excessive in the circumstances. This ground fails.
31. After reexamining the evidence on record, it is my finding that the prosecution proved its case beyond reasonable doubt and that the Appellants were properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld save that the sentences shall run concurrently.
DATED SIGNED and DELIVERED in MALINDI this 18th day of July 2025
2. The Appellants faced a second count of being in possession of wildlife trophy of an endangered species without a permit or lawful exemptions, contrary to Section 92(4) of the Wildlife Conservation and Management Act. The particulars of the offence are that on same date at the same time in the same place, jointly with others not before court were found in possession of the said and at the time of doing so, did not have a permit or other lawful exemption under the Act.
3. Following trial, the Appellants were convicted of both counts and each sentenced to pay a fine of Kshs. 1,000,000/= and in default serve 5 years imprisonment for each count.
4. Being aggrieved, each of the Appellants separately filed appeals challenging their conviction and sentence. The Appeals were consolidated by an order of the Court dated 8.8.24.
5. The Appellants filed amended grounds of appeal jointly. The summarized grounds are that the trial court erred in both law and fact by:
i) failing to find that the elements of the offence of dealing and being in possession of wildlife trophy were not proved to the required standard.
ii) failing to appreciate that the conviction and sentence amounted to double jeopardy and double punishment for 2 counts that occurred in the same transaction contrary to Section 279 of the Criminal Procedure Code and Article 50(2)(o) of the Constitution.
iii) meting a sentence that was manifestly harsh and excessive and urged that the same be reviewed to run concurrently.
6. The Appellants prayed that their appeals be allowed, the conviction quashed and sentence set aside.
7. The Appeal is opposed by the Respondent vide submissions dated 6.8.24.
8. As a first appellate Court, I have subjected the evidence adduced before the trial court to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32 and Kariuki Karanja v Republic [1986] KLR 190).
9. The facts as can be gleaned from the record are that the Appellants were arrested in an operation as they were in the process of selling elephant tasks to Kenya Wildlife Service (KWS) officers. PW1 July Odhiambo, from the Mombasa KWS investigation unit, testified that following a tip off, she and PW5, Assistant Warder Dickson Munene met the 1st Appellant on 10.1.22 at Mitsikitsini area, Kaloleni, who told them he had elephant tusks for sale. They negotiated a price of Kshs. 25,000/= per kilo. On 12.1.22 the agreed date to finalise the transaction, PW1 and PW5 were accompanied by colleagues PW4 Jackline Maiyo, PW2 Paul Maina, PW3 Paul Maccan and driver Njagi. They went in 2 vehicles. The first vehicle consisted of PW1, PW2 and Njagi as buyers and the second had PW2, PW3 and PW4 as back-up. The testimony of PW1 was corroborated by PW2, PW3 and PW4.
10. PW1 went on to state that they met the 1st Appellant at Masono Bandi who boarded their vehicle and guided them to where the tusks were in Mitsikitsini area. After a few kilometres, he instructed them to stop and the 2nd and 3rd Appellants appeared and left with the 1st Appellant. They returned later with the 1st and 2nd Appellants carrying the tusks with the 3rd Appellant following them from behind. After they loaded the tusks into the vehicle, PW1 signalled the back-up team who arrested the Appellants. The tusks and the Appellants were taken to Kaloleni Police Station in the back-up vehicle, a pick-up. At the police station, the tusks were weighed and found to be 53.5kg. PW3 prepared the inventory and a weighing certificate.
11. On the ground that the elements of the offences of dealing and being in possession of wildlife trophy were not proved to the required standard, the Appellants submitted that the evidence states that at 1700 hours when the alleged incident occurred, the Appellants were at the police station which is not the scene of crime. Further that none of the Appellants was photographed with the tusks and that the photographs could have been downloaded from any social media site and produced as evidence. As such, it was not demonstrated that the Appellants handled the tusks. They contend that the inventory ought to have been filled at the alleged crime scene where the recovery and weighing was done and not at the police station. They asserted that there was no recovery on them as alleged and hence no recent possession or dealing with the tusks. To buttress their submissions, they relied on the case of David Mugo Kimunge v Republic [2015] eKLR.
12. The Respondent submitted that the prosecution proved that the Appellants were in possession of trophies which they were selling when PW1 and her team posed as potential buyers.
13. In the cited case of David Mugo Kimunge v Republic [2015] eKLR, the Court of Appeal considered the doctrine of recent possession and stated:
16. The doctrine of recent possession has been applied in numerous decisions of this court and the High court properly cited the Kahiga case (supra) as one for the elements necessary for proof. We may reproduce the elements from that case:
“It is trite that before a court of law can rely on the doctrine of recent possession as a basis for conviction in a criminal case, the possession must be positively proved.
In other words, there must be positive proof:
i). that the property was found with the suspect;
ii). that the property is positively the property of the complainant;
iii). that the property was stolen from the complainant;
iv). that the property was recently stolen from the complainant.
The proof as to time, as has been stated over and over again, will depend on the easiness with which the stolen property can move from one person to the other.”
14. The evidence on record shows that the 1st Appellant led PW1 and her team to where the tusks in question were, in Mitsikitsini area. When they stopped the vehicle on his instructions, the 2nd and 3rd Appellants appeared and left with the 1st Appellant. They returned later with the 1st and 2nd Appellants carrying the tusks, with the 3rd Appellant following them closely. The fact of their possession of the tusks was clear from the evidence. The claim that the pictures did not capture the Appellants holding the tusks or that it cannot be established whether the pictures were taken at the police station or downloaded from any social media site, does not negate the evidence that the Appellants were in actual possession of the tusks. The test in the David Mugo Kimunge case (supra) was thus met.
15. The Appellants have impugned the inventory. They contend that the filling of the same at the police station and not at the alleged scene, rendered the inventory invalid. As such, there was no proof of recent possession or dealing with the alleged trophies by the Appellants.
16. The inventory on record lists 2 elephant tusks and 2 sacks. The weighing was done in the presence of the Appellants. The inventory was signed by all the Appellants with the 3rd Appellant affixing his thumb print confirming the same was done in their presence. The Appellant have not said or even suggested that the signatures are not theirs. The fact of the weighing being done at the police station did not shake the prosecution case.
17. In Francis Kioi Karanja & 3 others v Director of Public Prosecutions [2021] eKLR, Ogembo, J. considered and rejected a somewhat similar challenge to an inventory and stated:
The inventory must surely have been of all the items recovered. The appellants must have signed the same. This is buttressed by the fact that nowhere during the trial is it on record that the appellants were coerced into signing same.
18. I have also noted from the record that the Appellants did not, in the trial court, challenge the fact that they were not in the photographs. Similarly, they did not challenge the inventory and the place it was done. These are new issues which having not been raised in the trial court, no decision was made thereon. As such, this Court sitting on appeal cannot make a decision on the same. An appeal can only lie where there has been a decision made by a lower court. This was the holding in Kipkorir v Republic (Criminal Appeal E056 of 2022) [2024] KECA 745 (KLR) (21 June 2024) (Judgment) where the Court of Appeal stated:
We are of the considered opinion that this court sitting as a second appellate court can only entertain matters that were considered by the court being appealed from. An appeal can only lie where there has been a decision made by a lower court. If an issue was not brought up before the lower court, and therefore not determined, then any decision made by the appellate court would not be considered a judgment on an appeal.
19. The Appellants further submitted that the record is replete with material contradictions that are capable of unseating the verdict. They argue that the alleged time of recovery of the tusks cannot be ascertained whether it was 4pm, 5pm or 6pm. Additionally, that the scene of crime was not established as to whether it was Msono Mbadi, Bari or Bandi of Mitsikitsini or Kaloleni Police Station. Further, that the existence of the motor vehicle in which the alleged tusks were recovered was also never established. The Appellants faulted the trial court for failing to evaluate the discrepancies which go to the root core of the matter. For the Respondent, its was submitted that the charge sheet indicates that the scene of crime was Mitsiksini village
20.
21. I have looked at the record. The charge sheet clearly indicates that the offence took place at Mitsiksini village. The prosecution witnesses testified that after meeting the 1st Appellant at Masono Bandi, he led them to Mitsikitsini area where the tusks were. That is where they brought the tusks to them with the 3rd Appellant in tow and that is where they were arrested. It is clear from the evidence where the offence took place and I do not see any contradiction in the prosecution evidence.
22. I now turn to the ground that failing to appreciate that the conviction and sentence amounted to double jeopardy and double punishment for 2 counts that occurred in the same transaction contrary to Section 279 of the Criminal Procedure Code and Article 50(2)(o) of the Constitution. The Appellants submitted that they were charged and convicted of the offences of dealing and possession which were from in the same transaction. Their contention is that one cannot be there without the other and so to convict and sentence them to the 2 counts on the same facts amounts to double jeopardy. They argued that the one of the sentences ought to have been suspended. The Respondent submitted that the 2 counts with which the Appellants were charged are well provided for in statute and did not amount to double jeopardy.
23. Black’s Law Dictionary, Tenth Edition defines double jeopardy as the fact of being prosecuted or sentenced twice for substantially the same offence.
24. The principle of double jeopardy has constitutional underpinning. Article 50(2) of the Constitution guarantees to every accused person the right to a fair trial which includes inter alia the right not to be subjected to double jeopardy as follows:
(2) Every accused person has the right to a fair trial, which includes the right—.
(o) not to be tried for an offence in respect of an act or omission for which the accused person has previously been either acquitted or convicted.
25. The double jeopardy principle safeguards individuals from facing in respect of an act or omission for which he has previously been tried. It is immaterial that such person is convicted or acquitted. Such person cannot be prosecuted again for that same offence.
26. The law allows a person who has been charged, to plead double jeopardy where such person has been previously tried for the same offence. Section 279 of the Criminal Procedure Code provides:
(1) An accused person against whom an information is filed may plead—
(a) that he has been previously convicted or acquitted of the same offence; or
(b) that he has obtained the President’s pardon for his offence.
(2) If either of those pleas are pleaded and denied to be true, the court shall try whether the plea is true or not.
(3) If the court holds that the facts alleged by the accused do not prove the plea, or if it finds that it is false, the accused shall be required to plead to the information.
27. The offences with which the Appellants were charged are separate and distinct notwithstanding that they arise from the same transaction. Each offence is provided for under different sections of the Act with each requiring proof of distinct ingredients. The Appellants had not been previously tried for the same offences. As such, they have not been subjected to double jeopardy Accordingly, this ground fails.
28. In the final ground, the Appellants faulted the trial court for meting a sentence on both counts without ordering that the same run concurrently. They contend that this is manifestly harsh and excessive. They urged the Court to review their sentence and take into account the period spent in custody pending trial. They further urged the Court to consider that they are first offenders and family men and that the 3rd Appellant is 79 years old with health issues. His continued incarceration may constitute a violation of his right to a just and proportionate punishment. They urged for alternative punishment for him.
29. Section 92(2) of the Act provides that a person convicted of the offence of dealing in a wildlife trophy, of any critically endangered or endangered species is liable to a term of imprisonment of not less than seven years. Section 92(4) provides that a person convicted of the offence of being in possession is liable to a fine of not less than 3 million shillings or a term of imprisonment of not less than 5 years or both such fine and imprisonment.
30. Upon the conviction of the Appellants, the trial Magistrate considered their mitigation and sentenced them to a fine of Kshs. 1,000,000/= each and in default serve 5 years imprisonment. The sentence was within the range provided under the Act and cannot be said to be excessive in the circumstances. This ground fails.
31. After reexamining the evidence on record, it is my finding that the prosecution proved its case beyond reasonable doubt and that the Appellants were properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld save that the sentences shall run concurrently.
DATED SIGNED and DELIVERED in MALINDI this 18th day of July 2025