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1. The Applicants ALEX MAKUMI JOSHUA, JOSEPH MULE MUKENGA, PETER MULINGE KIOKO took plea on 22nd February, 2019 where they were charged with the offence under S. 92 (4) of the Wildlife Conservation and Management Act, 2013. It was alleged that they were found in possession of 2 pieces of tusk valued at Kshs.4.3 million without a permit. They pleaded not guilty. After a full trial they found guilty, convicted and sentenced to pay fine of Kshs.1,000,000/= in default to serve 5 years in prison on 31st May, 2023.
2. The sentence was pursuant to S. 92(4) which states:
92. endangered and threatened species (4).
Any person without permit or exemption issued under this Act is in possession of any live wildlife species or trophy of any critically endangered or endangered species as specified in the sixth schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than three million shillings or a term of imprisonment of not less than five years or both such fine and imprisonment.
3. All this time they were in remand custody.
4. They filed separate applications seeking the revision of the sentence because the trial court did not indicate whether/not it had taken into consideration the period spent in custody – pending trial.
5. Section 333(2) requires that the period the accused person has spent in custody be taken into consideration otherwise he might end up serving an illegal sentence.
6. The learned trial magistrate did not in the sentence state that she had taken into consideration the period the Applicant had spent in custody pending trial, but did determine that a term of 5 years imprisonment would suffice.
7. The record shows that they were in custody from 20th February, 2019 to 31st May, 2023 when they were convicted and sentenced.
8. The three Applicants were charged in Makindu MCCRC No. 188/2019 with Justus Mutie Mwengea who filed MISC CR Application E024/2023. This Court allowed the revision of the sentence to fine of Kshs.1,000,000/= or 5 years imprisonment to run from the date of plea which is 20th February, 2019
9. In the circumstance the justice of the case as per the provisions of Section 333 (2) of the Criminal Procedure Code, require that the Applicants sentence be revised.
10. Accordingly, the sentence is revised to read –
Each Applicant is sentenced to pay fine of Kshs.1,000,000/= in default to serve 5 years imprisonment. The default sentence to run from the date of plea which is 20th February, 2019.
11. This ruling to apply Mutatis Mutandis to each application.
12. Orders accordingly.
Dated, signed and delivered virtually this 4th December 2025
Mumbua T Matheka
Judge
Applicants present virtually
CA Chrispol
Mr Kazungu for the state
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1. The Applicants ALEX MAKUMI JOSHUA, JOSEPH MULE MUKENGA, PETER MULINGE KIOKO took plea on 22nd February, 2019 where they were charged with the offence under S. 92 (4) of the Wildlife Conservation and Management Act, 2013. It was alleged that they were found in possession of 2 pieces of tusk valued at Kshs.4.3 million without a permit. They pleaded not guilty. After a full trial they found guilty, convicted and sentenced to pay fine of Kshs.1,000,000/= in default to serve 5 years in prison on 31st May, 2023.
2. The sentence was pursuant to S. 92(4) which states:
92. endangered and threatened species (4).
Any person without permit or exemption issued under this Act is in possession of any live wildlife species or trophy of any critically endangered or endangered species as specified in the sixth schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a fine of not less than three million shillings or a term of imprisonment of not less than five years or both such fine and imprisonment.
3. All this time they were in remand custody.
4. They filed separate applications seeking the revision of the sentence because the trial court did not indicate whether/not it had taken into consideration the period spent in custody – pending trial.
5. Section 333(2) requires that the period the accused person has spent in custody be taken into consideration otherwise he might end up serving an illegal sentence.
6. The learned trial magistrate did not in the sentence state that she had taken into consideration the period the Applicant had spent in custody pending trial, but did determine that a term of 5 years imprisonment would suffice.
7. The record shows that they were in custody from 20th February, 2019 to 31st May, 2023 when they were convicted and sentenced.
8. The three Applicants were charged in Makindu MCCRC No. 188/2019 with Justus Mutie Mwengea who filed MISC CR Application E024/2023. This Court allowed the revision of the sentence to fine of Kshs.1,000,000/= or 5 years imprisonment to run from the date of plea which is 20th February, 2019
9. In the circumstance the justice of the case as per the provisions of Section 333 (2) of the Criminal Procedure Code, require that the Applicants sentence be revised.
10. Accordingly, the sentence is revised to read –
Each Applicant is sentenced to pay fine of Kshs.1,000,000/= in default to serve 5 years imprisonment. The default sentence to run from the date of plea which is 20th February, 2019.
11. This ruling to apply Mutatis Mutandis to each application.
12. Orders accordingly.
Dated, signed and delivered virtually this 4th December 2025
Mumbua T Matheka
Judge
Applicants present virtually
CA Chrispol
Mr Kazungu for the state
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