REPUBLIC OF KENYA
IN THE HIGH COURT AT MAKUENI
CRIMINAL APPEAL NO. E039 OF 2024
PETER MUTUA MWOLOLO…………………..…..…………APPELLANT
-VERSUS-REPUBLIC……………….…………………………..………..RESPONDENT
(From the original conviction and sentence of Hon. B.N. Ireri (SPM) in Makindu Senior Principal Magistrate’s Court Criminal Case No. E092 of 2020 delivered on 6 th June 2024)
JUDGMENT
Introduction
1. The Appellant was charged with dealing in a wildlife trophy contrary to section 92(2) as read with section 105 of the Wildlife Conservation and Management Act 2013 . That on the 16 th day of October 2020 at Makindu Township, Makindu Location in Makindu Sub County within Makueni County, he was found dealing in a wildlife trophy namely two (2) pieces of suspected elephant tusks transporting using motor cycle registration number KMCN 493K make Skygo with street value of kshs 700,000 without authority from Kenya Wildlife service director general.
2. In Count II, the Appellant was charged with being in possession of wildlife trophy contrary to section 92(4) as read with section 105 of the Wildlife Conservation and Management Act 2013.
3. The particulars of Count II were that on the same day and at the same place, he was found in possession of wildlife trophy namely two (2) pieces of suspected elephant tusks transporting using motor cycle registration number KMCN 493K make Skygo with street value of kshs 700,000 without authority from Kenya Wildlife service director general.
4. After a full trial, the Appellant was found guilty, of both charges convicted and sentenced to 7 and 5 years imprisonment respectively with the sentences running concurrently.
The Appeal
5. Aggrieved by that decision, the Appellant filed this Appeal on the following grounds;
a) That the learned trial magistrate erred in law and fact by convicting the Appellant while the prosecution had failed to prove their case beyond reasonable doubt as required by the law thereby occasioning the Appellant a miscarriage of justice.
b) That the learned trial magistrate erred in law and fact by holding that the prosecution had proved both Count I and II of the charge sheet while there was no evidence tendered in respect of Count I by the prosecution witnesses .
c) That the learned trial magistrate erred in law and fact by convicting the Appellant on Count I on the offence of dealing while there was no evidence adduced by the prosecution in support of that count.
d) That the learned trial magistrate erred in law and fact by holding that the Appellant was in possession of the elephant tusks in question while there were glaring contradictions on where the Appellant was arrested in possession of the elephant tusks.
e) That the learned trial magistrate erred in law and fact by convicting the Appellant on Count II and sentencing him to 5 years imprisonment while the evidence by the prosecution was contradictory on where the Appellant was found in possession of the elephant tusks where the Occurrence Book (OB) and the evidence tendered in court differed on the scene of crime.
f) The court having visited the alleged scene of crime and having confirmed the buildings where the Appellant was allegedly found in possession of the elephant tusks were separate and distinct buildings contrary to the prosecution’s evidence that it was in one building, failed to find that these inconsistencies cast doubts on the prosecution’s case which doubts ought to have been exercised in favor of the Appellant.
g) That the learned trial magistrate erred in law and fact in failing to consider that the Appellant’s sworn defence which raised doubts in the prosecution’s case and that the said doubts ought to have been exercised in favor of the Appellant.
h) That the learned trial magistrate erred in law by passing excessive imprisonment sentences on both counts of 7 years and 5 years respectively without the option of a fine against the Appellant in the circumstances.
Summary of the case before the Trial Court
6. The prosecution’s case was that; on 16/10/2020, the KWS officers received intelligence from an informer about a suspect who had elephant tusks and was looking for a buyer in Makindu town. The officers proceeded to Makindu using an unmarked vehicle whereupon they laid ambush and arrested the suspect inside a hotel.
7. The prosecution called 4 witnesses to wit ; a KWS Ranger (PW1), a Senior Research Scientist (PW2), a KWS Ranger (PW3) and a Police Officer (PW4). The exhibits produced were; Motor Cycle Reg. No. KMCM 493K (P.Ex 1), 2 pieces of ivory [P.Ex 2(a) & (b)], White Sac [P.Ex 3(a)], White Sac with label extracts [P.Ex 3(b)] and Orange Sac written fugo makre [P.Ex 3(c)].
8. The Appellant elected to give sworn evidence in his defence and to call one witness. He denied the charges and acknowledged ownership of motor cycle KMCN 493K. He testified that on 16/10/2020, he was at the shamba with his worker Daniel Kasina and at around 10.30am, he received a call from a client who wanted to be ferried. His phone numbers are 0762154842 and 0721614361. The client called using 0723683650.
9. The client who called told him to go ferry another client (Ken) who was at Nairobi stage. DW1 was called by a new number and the caller told him that he was at riverside hotel and not Nairobi stage. DW1 picked the pillion passenger who told him to pass through Enzau and they got to a homestead of Benjamin Muthiani. They greeted each other and Benjamin told DW1 to leave him with the customer and wait for him some meters away.
10. DWI waited for 30 minutes whereby he called the person who had sent him and told him that the customer was taking too long. The Mpesa name of the person who had sent him is Cosmas Marete. DW1 called the customer Ken but Ken did not pick up. Later, Ken picked the call and told DW1 to give him about 5 minutes and then he arrived with Benjamin Muthiani and they boarded the motor cycle. Ken carried a black bag and he told DW1 to take him to TZ hotel.
11. DW1 parked his motor cycle between Kilimanjaro and TZ and Ken alighted and got into the hotel. James Muthusi, also a boda boda worker, arrived and greeted DW1 and they spoke for a short time. As DW1 was talking to Muthusi, he saw the said Ken pointing at him and saying ‘ndio huyo’ -he is the one. Ken was in the company of four men who arrested DW1 and forcefully took the car keys and phone. DW1 was handcuffed and taken to a white land cruiser.
12. The vehicle went towards Wote route and DW1 was taken to a room at the police station where he was asked his name and told to get outside. As DW1 stood at the corridor, a woman, Shiru, arrived and asked him what was wrong. He said he didn’t know why he was arrested and Shiru told him that he was arrested for being in possession of ivory. Shiru came with people who arrested DW1 and she told DW1 to open the phone. She operated the phone and told DW1 that she would help him.
13. DW1 protested but was restrained by the two men who had arrested him. Shiru returned after about 20 minutes and told him to look for relatives and the relatives to look for land so that he could be released on bond. One of the arresting officers took a photograph of DW1 and told him that he would be seen at CNN. The phone was returned to him but all the call logs had been deleted. Later, DW1 was called by strange numbers alleging to be Ken and asking for kshs 20,000/= in order to be released.
14. Meshack Mutua, the one who had referred Ken, also called DW1 and told him that what Ken said was true. DW1 did not send the money and he informed his relatives about what had happened at around 6.00pm. he was placed in custody and his phone taken away. On 17/10/2020, DW1 got his phone whereupon he was called by Ken and was told that he would be taken to court if he did not send the money. Ken asked DW1 to give kshs 15,000/= but DW1 did not send. In the evening, DW1 was called by Mutua who told him to add kshs 6,000/= as Mutua had raised kshs 9,000/=. DW1 informed PC Hussein who said that he would follow up. The following day, PC Hussein called PC Saitoti and they spoke.
15. DW1 called his wife who came with kshs 6,000/= and Hussein asked DW1 how they would know where the people were. After sometime, Meshack Mutua was arrested by Saitoti and he admitted having asked for money. Meshack and Ken told DW1 that they were looking for money in that manner and were placed in custody. On Monday, DW1 was charged in court.
16. DW1 was shown a statement for Meshack Mutua. The OB extract (D. EX 1) shows that Meshack Mutua was booked for an offence of failing to register as a Kenya..DW1 said that the black bag was not his and denied being arrested inside TZ bar. He said that TZ hotel and Kilimanjaro building are two different houses. Cosmas Marete, Meshack and Ken were not charged. DW1 said that he never knew what a trophy was and denied that the ivory produced in court was found on him.
17. DW1 confirmed, through Mpesa, that the numbers which called him were; Jackson Njuki and Benjamin Muthiani. Meshack told DW1 that he would be released if he gave out the money.
18. On cross-examination, he said that he was an agricultural officer but was not employed at the time of the incident. He agreed that motor cycle KMCM 493K belonged to him. He denied having been arrested inside TZ hotel. He denied seeing the two police officers, Muindau and Osore. TZ is a two- storey building. He denied being inside the hotel. He saw the orange sac in court. He was called at around 10.30am and arrested at around 12.30pm. He was wearing a T-shirt pink trouser.
19. Meshack was a regular customer and was the one who led him to ferry Ken. Meshack was arrested for receiving money. The OB shows that he was arrested for failing to register. He (DW1) was arrested because he did not give a bribe. Before his arrest, Meshack did not ask for money. He did not know why the KWS officers framed him and did not know them. He didn’t know why Meshack would frame him.
20. DW2 was James Muthusi who testified that he lived in Kiboko and was a farmer as well as a boda boda rider. The Appellant was known to him as a fellow boda boda operator. On 16/10/2020, he saw Peter Mutua Mwololo carrying a man with the boda boda . The pillion passenger alighted and walked near the office of Kasyoka advocate and DW2 greeted the Appellant and they spoke. As DW2 was almost leaving, he heard somebody say ndio huyu ndiyo huyu . DW2 looked back and saw that the Appellant had been arrested by some people. The Appellant was grabbed on his hands and trouser at the back and was put inside a KWS vehicle. The three men took the motor cycle keys and drove towards the police station. One of the men drove the motor cycle away. DW2 knew TZ hotel, a storey building and also knew Kilimanjaro bar and restaurant.
21. On cross-examination, he said that he lives at Kiboko and at Makindu. On 16/10/2020, he saw the Appellant and greeted him and they spoke for about five minutes. He had seen the Appellant about 5 days earlier. The Appellant is his friend but he did not know what the Appellant had come to do there. He did not know if the Appellant had ivory. DW2 saw KWS vehicle which is known to him. He did not know why the Appellant was arrested.
22. Directions were given that the appeal be canvassed through written submissions. The only submissions on record are for the Appellant.
The Submissions
The Appellant’s Submissions
23. The submissions were filed on behalf of the Appellant by the firm of Muia V.M & Co. Advocates.
24. It was submitted that the natural interpretation of the particulars in count II is that, the Appellant was stopped while on transit riding the alleged motor cycle and then arrested for transporting the alleged elephant tusks. It was contended that the evidence on record shows clearly that this was not the case. That, the prosecution’s evidence was that the Appellant was arrested in a particular hotel with a sack that had the elephant tusks.
25. It was submitted that the evidence of PW1 was inconsistent and had gaps which the prosecution failed to fill. That, PW1 said they did not have mobile numbers of the informer and there was no evidence on how the KWS officers met the informer in a hotel yet they did not know them and did not have their mobile numbers. That, PW1 also said that they arrested the Appellant on the second floor of TZ hotel but in re-examination, he said that they arrested him on the ground floor.
26. It was submitted that the registration number of the motor cycle allegedly used in the commission of the offence was KMCM 493K (pg. 6 line 9) while the one in evidence is KMCN 493K (pg. 6 line 6). It was contended that this is a major discrepancy which the trial magistrate ought to have considered and or noted in his judgment.
27. It was submitted that according to the evidence of PW3, he was with PW1 when they followed the Appellant to the upper room of TZ hotel where they found him seated at a wooden table. That, the Appellant did not have a licence so they arrested him and put him together with his motor cycle in their vehicle and took him to Makindu police station where the Appellant was charged. It was contended that the evidence of PW3 differed with that of PW1 who said that, he (PW1) was the one who rode the Motor cycle to the Makindu Police station.
28. It was submitted that from the evidence of PW1 and PW3, it is clear that they did not make any attempts to posse as buyers of the elephant tusks and did not even attempt to engage the Appellant on any negotiations for the purchase of the alleged elephant tusks. That, according to the two witnesses, they simply asked the Appellant what was contained in the sac that he (Appellant) allegedly had and the Appellant did not reply/respond thus prompting the witnesses to open the sac where they allegedly found the elephant tusks.
29. It was submitted that there was no inventory taken at the scene of arrest and there was no weighing of the elephant tusks. That, the weighing of the tusks was alleged to have been conducted at the police station but there was no inventory and /or Weighing Certificate produced in court. It was contended that this was a gap in the prosecution’s case which casts doubts as to whether the elephant tusks were indeed recovered at the scene alleged by the two witnesses.
30. It was submitted that according to the investigating officer (IO), PW4, the Appellant was arrested by PW1 and PW3 and taken to the police station where the matter was reported. That, it was reported that the Appellant was arrested at Kilimanjaro bar as per the occurrence book (OB) and that PW4 visited the scene-TZ hotel -where the Appellant was arrested. That, on cross-examination, PW4 said that TZ hotel and Kilimanjaro bar was one building and that the main building was Kilimanjaro bar and that TZ hotel was inside that building. That, the witness was not forth right as to the scene of arrest prompting the defence to apply for the scene of arrest visit.
31. It was submitted that the scene of arrest was critical in the proceedings and was visited by the court whereupon it was established that TZ hotel and Kilimanjaro bar are two distinct buildings hence the evidence of PW4 was not truthful and/or reliable.
32. It was submitted that the scene of arrest is crucial as it touches on count 2 of the charge sheet and that despite the trial magistrate having established the discrepancy as to the scene where the Appellant was alleged to have been found in possession of the elephant tusks, he went ahead and convicted him on the said 2 nd count of being found in possession. It was contended that this was erroneous as the credibility of PW4 was in doubt and his evidence unreliable. The court was urged to take note of the fact that the Appellant had in his defence maintained that he was not arrested at TZ and was not in possession of the elephant tusks and that the whole prosecution case was a frame up.
33. Reliance was placed on Charles Mbaabu Mburi -vs- Republic (2018) eKLR where the court reiterated the case of Jean Wanjala Songoi & Patrick Manyora -vs- Republic; Criminal Appeal No.100 of 2014 where the judge stated;
“… Possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others. In this case, that aspect of the offences was not established beyond reasonable doubt against the appellant”.
34. It was submitted that the trial court also failed to take note of the fact that there was no witness called to confirm the allegation that the Appellant was looking for a buyer for the elephant tusks and/or that there was an overt act by the Appellant to the witnesses to show that he attempted to sell and indeed was looking for a buyer for the tasks. That, the trial court ignored the Appellant’s sworn defence that the charges were a frame up against him (Appellant). That, the Appellant gave sworn evidence in his defence and categorically denied the two counts hence the trial Magistrate ought to have given the benefit of doubt to the Appellant and acquit him.
35. It was submitted that the cumulative effect of the evidence on record is that the prosecution failed to prove the case against the Appellant beyond reasonable doubt.
Duty of Court
36. It is now settled that the duty of a first appellate Court is to reevaluate the evidence on record, and draw its own conclusions keeping in mind that it never saw nor heard the witnesses.
37. I have considered the grounds of appeal, the submissions and the entire record, and the issue for determination is whether the prosecution proved its case beyond reasonable doubt.
Analysis & Determination
38. With regard to Count I, Section 92(2) of the Wildlife Conservation & Management Act, Cap 376 Laws of Kenya (the Act) provides;
“A person who, without permit or exemption issued under this Act, deals in a wildlife trophy , of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than seven years.”
39. Section 3 of the Act defines a ‘dealer’ as;
“Any person who, in the ordinary course of any business or trade carried on by him, whether on his own behalf or on behalf of any other person;
a. sells, purchases, barters or otherwise in any manner deals with any trophy; or
b. cuts, carves, polishes, preserves, cleans, mounts or otherwise prepares any trophy; or
c. transports or conveys any trophy;”
40. With regard to Count II, Section 92(4) of the Act provides;
“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.”
41. PW1, Cpl Isidory Mwandau and PW3, Duncan Odhiambo are KWS Officers and were the arresting officers. Their evidence was that on 16/10/2020, they received information from their senior, Daudi Aden, about a suspect at Makindu who had elephant tusks and was looking for a buyer. They left Mtito Andei at 10.00am and arrived in Makindu at 11.00am whereupon they laid ambush and at 2.00pm, they saw the suspect riding a motor cycle which was carrying an orange sac on the rear seat.
42. They followed the suspect into TZ hotel and found him sitting alone with a sac on the ground between his legs. They asked what was inside the sac but the suspect did not respond. The officers opened the sac and saw two pieces of elephant tusks and the suspect agreed that he did not have a licence hence was arrested. Dr. Goetz Mwebi, a Senior Research Scientist from the National Museums of Kenya (PW2) confirmed that the two animal remains were broken tusks from an elephant.
43. A casual look at the evidence of the two arresting officers suggests that the Appellant was caught red handed with two elephant tusks hence perfectly fitting into the definitions of dealing and being in possession of wildlife trophy. However, a keen re-evaluation of the entire evidence reveals gaps which the trial court ought to have noted.
44. According to the prosecution PW1 and 3 arrested the Appellant together and as such, and the expectation is that their accounts would match. However, PW1 testified that after arresting the Appellant, he took the motor cycle keys from the table and rode the motor cycle to Makindu police station while PW3 testified that they ferried the motor cycle using their vehicle. This in my view was a red light as to the credibility of the two witnesses . How could such a conspicuous detail come out so differently from the two arresting officers? Either the Appellant was not arrested as per the accounts of the two officers or that the two officers were not together during the arrest. This the prosecution did not resolve.
45. Secondly, PW1 and PW3 3 testified that they arrested the Appellant at TZ hotel but the OB report No. 26/16/10/2020 which was booked by PW1 at 1300hrs, states that the Appellant was arrested at Kilimanjaro bar . Further, the Investigating Officer, PC Goeffrey Kipkemoi (PW4) claimed to have visited TZ bar where the Appellant was arrested and his account was that TZ bar was inside a building called ‘Kilimanjaro’. However, the trial court visited the scene and established that; ‘Kilimanjaro bar is on its own building and TZ bar & restaurant is also on a separate building.’ In my view, it is alarming that three witnesses who ‘saw’ the crime scene could not give an accurate description of the same. This was another red light that the evidence given by PW1, PW3 and the I.O could not have come out of an actual arrest or that they were deliberately distorting the evidence. Nevertheless, this contradiction ought to have been resolved..
46. The trial court established fact that Kilimanjaro bar and TZ bar the alleged scene of crime are in two distinct buildings, these the inconsistencies in the testimonies of PW1, 3 and 4 are not minor as they have a bearing on their credibility. In Ndung’u Kimani -vs- Republic (1979) KLR 282 , the Court of Appeal stated as follows on credibility of witnesses;
“A witness in Criminal Case upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
47. In this case, the trial court relied heavily on the evidence of PW1 and 3 to convict the Appellant. The re -evaluation of the evidence of the two witnesses does not stand and falls within the description of the Court of Appeal in Ndung’u Kimani. The case for the prosecution is set heavily on the alleged arrest of the appellant at a certain time at a certain place in possession of the wildlife trophy. However, the contradictions in their testimony , the confirmation by the court that witnesses were referring tow two different scenes of arrest creates the impression that they were not telling the truth and the trustworthiness of their testimony became suspect. Their testimony rendered them unreliable witness and it was unsafe for trial court to accept their evidence and use it to convict the appellant
48. . The evidence of PW1 and 3 cannot be relied on to prove beyond reasonable doubt that the two elephant tusks were in possession of the Appellant.
49. As for the disparity in the registration number of the motor cycle in PW1’s evidence, I am of the view that the same was a typographical error as the Appellant acknowledged that motor cycle registration number KMCN 493K belonged to him and was the same motor cycle that was produced in evidence as per the list of exhibits on record.
50. The upshot is that the case for the was marred by inconsistencies that ought to have been resolved to the benefit of the appellant.
51. The appeal succeeds. The conviction is quashed. The sentence is set aside. The appellant be set at liberty unless otherwise legally held.
JUDGMENT dated signed and delivered virtually this 22 nd May 2026
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present virtually
Mr. Musyoki for State
Mr. Muia for appellant
JUDGMENT HCCRA E039 OF 2024 Page 2 of 2MWOLOLO V R
IN THE HIGH COURT AT MAKUENI
CRIMINAL APPEAL NO. E039 OF 2024
PETER MUTUA MWOLOLO…………………..…..…………APPELLANT
-VERSUS-REPUBLIC……………….…………………………..………..RESPONDENT
(From the original conviction and sentence of Hon. B.N. Ireri (SPM) in Makindu Senior Principal Magistrate’s Court Criminal Case No. E092 of 2020 delivered on 6 th June 2024)
JUDGMENT
Introduction
1. The Appellant was charged with dealing in a wildlife trophy contrary to section 92(2) as read with section 105 of the Wildlife Conservation and Management Act 2013 . That on the 16 th day of October 2020 at Makindu Township, Makindu Location in Makindu Sub County within Makueni County, he was found dealing in a wildlife trophy namely two (2) pieces of suspected elephant tusks transporting using motor cycle registration number KMCN 493K make Skygo with street value of kshs 700,000 without authority from Kenya Wildlife service director general.
2. In Count II, the Appellant was charged with being in possession of wildlife trophy contrary to section 92(4) as read with section 105 of the Wildlife Conservation and Management Act 2013.
3. The particulars of Count II were that on the same day and at the same place, he was found in possession of wildlife trophy namely two (2) pieces of suspected elephant tusks transporting using motor cycle registration number KMCN 493K make Skygo with street value of kshs 700,000 without authority from Kenya Wildlife service director general.
4. After a full trial, the Appellant was found guilty, of both charges convicted and sentenced to 7 and 5 years imprisonment respectively with the sentences running concurrently.
The Appeal
5. Aggrieved by that decision, the Appellant filed this Appeal on the following grounds;
a) That the learned trial magistrate erred in law and fact by convicting the Appellant while the prosecution had failed to prove their case beyond reasonable doubt as required by the law thereby occasioning the Appellant a miscarriage of justice.
b) That the learned trial magistrate erred in law and fact by holding that the prosecution had proved both Count I and II of the charge sheet while there was no evidence tendered in respect of Count I by the prosecution witnesses .
c) That the learned trial magistrate erred in law and fact by convicting the Appellant on Count I on the offence of dealing while there was no evidence adduced by the prosecution in support of that count.
d) That the learned trial magistrate erred in law and fact by holding that the Appellant was in possession of the elephant tusks in question while there were glaring contradictions on where the Appellant was arrested in possession of the elephant tusks.
e) That the learned trial magistrate erred in law and fact by convicting the Appellant on Count II and sentencing him to 5 years imprisonment while the evidence by the prosecution was contradictory on where the Appellant was found in possession of the elephant tusks where the Occurrence Book (OB) and the evidence tendered in court differed on the scene of crime.
f) The court having visited the alleged scene of crime and having confirmed the buildings where the Appellant was allegedly found in possession of the elephant tusks were separate and distinct buildings contrary to the prosecution’s evidence that it was in one building, failed to find that these inconsistencies cast doubts on the prosecution’s case which doubts ought to have been exercised in favor of the Appellant.
g) That the learned trial magistrate erred in law and fact in failing to consider that the Appellant’s sworn defence which raised doubts in the prosecution’s case and that the said doubts ought to have been exercised in favor of the Appellant.
h) That the learned trial magistrate erred in law by passing excessive imprisonment sentences on both counts of 7 years and 5 years respectively without the option of a fine against the Appellant in the circumstances.
Summary of the case before the Trial Court
6. The prosecution’s case was that; on 16/10/2020, the KWS officers received intelligence from an informer about a suspect who had elephant tusks and was looking for a buyer in Makindu town. The officers proceeded to Makindu using an unmarked vehicle whereupon they laid ambush and arrested the suspect inside a hotel.
7. The prosecution called 4 witnesses to wit ; a KWS Ranger (PW1), a Senior Research Scientist (PW2), a KWS Ranger (PW3) and a Police Officer (PW4). The exhibits produced were; Motor Cycle Reg. No. KMCM 493K (P.Ex 1), 2 pieces of ivory [P.Ex 2(a) & (b)], White Sac [P.Ex 3(a)], White Sac with label extracts [P.Ex 3(b)] and Orange Sac written fugo makre [P.Ex 3(c)].
8. The Appellant elected to give sworn evidence in his defence and to call one witness. He denied the charges and acknowledged ownership of motor cycle KMCN 493K. He testified that on 16/10/2020, he was at the shamba with his worker Daniel Kasina and at around 10.30am, he received a call from a client who wanted to be ferried. His phone numbers are 0762154842 and 0721614361. The client called using 0723683650.
9. The client who called told him to go ferry another client (Ken) who was at Nairobi stage. DW1 was called by a new number and the caller told him that he was at riverside hotel and not Nairobi stage. DW1 picked the pillion passenger who told him to pass through Enzau and they got to a homestead of Benjamin Muthiani. They greeted each other and Benjamin told DW1 to leave him with the customer and wait for him some meters away.
10. DWI waited for 30 minutes whereby he called the person who had sent him and told him that the customer was taking too long. The Mpesa name of the person who had sent him is Cosmas Marete. DW1 called the customer Ken but Ken did not pick up. Later, Ken picked the call and told DW1 to give him about 5 minutes and then he arrived with Benjamin Muthiani and they boarded the motor cycle. Ken carried a black bag and he told DW1 to take him to TZ hotel.
11. DW1 parked his motor cycle between Kilimanjaro and TZ and Ken alighted and got into the hotel. James Muthusi, also a boda boda worker, arrived and greeted DW1 and they spoke for a short time. As DW1 was talking to Muthusi, he saw the said Ken pointing at him and saying ‘ndio huyo’ -he is the one. Ken was in the company of four men who arrested DW1 and forcefully took the car keys and phone. DW1 was handcuffed and taken to a white land cruiser.
12. The vehicle went towards Wote route and DW1 was taken to a room at the police station where he was asked his name and told to get outside. As DW1 stood at the corridor, a woman, Shiru, arrived and asked him what was wrong. He said he didn’t know why he was arrested and Shiru told him that he was arrested for being in possession of ivory. Shiru came with people who arrested DW1 and she told DW1 to open the phone. She operated the phone and told DW1 that she would help him.
13. DW1 protested but was restrained by the two men who had arrested him. Shiru returned after about 20 minutes and told him to look for relatives and the relatives to look for land so that he could be released on bond. One of the arresting officers took a photograph of DW1 and told him that he would be seen at CNN. The phone was returned to him but all the call logs had been deleted. Later, DW1 was called by strange numbers alleging to be Ken and asking for kshs 20,000/= in order to be released.
14. Meshack Mutua, the one who had referred Ken, also called DW1 and told him that what Ken said was true. DW1 did not send the money and he informed his relatives about what had happened at around 6.00pm. he was placed in custody and his phone taken away. On 17/10/2020, DW1 got his phone whereupon he was called by Ken and was told that he would be taken to court if he did not send the money. Ken asked DW1 to give kshs 15,000/= but DW1 did not send. In the evening, DW1 was called by Mutua who told him to add kshs 6,000/= as Mutua had raised kshs 9,000/=. DW1 informed PC Hussein who said that he would follow up. The following day, PC Hussein called PC Saitoti and they spoke.
15. DW1 called his wife who came with kshs 6,000/= and Hussein asked DW1 how they would know where the people were. After sometime, Meshack Mutua was arrested by Saitoti and he admitted having asked for money. Meshack and Ken told DW1 that they were looking for money in that manner and were placed in custody. On Monday, DW1 was charged in court.
16. DW1 was shown a statement for Meshack Mutua. The OB extract (D. EX 1) shows that Meshack Mutua was booked for an offence of failing to register as a Kenya..DW1 said that the black bag was not his and denied being arrested inside TZ bar. He said that TZ hotel and Kilimanjaro building are two different houses. Cosmas Marete, Meshack and Ken were not charged. DW1 said that he never knew what a trophy was and denied that the ivory produced in court was found on him.
17. DW1 confirmed, through Mpesa, that the numbers which called him were; Jackson Njuki and Benjamin Muthiani. Meshack told DW1 that he would be released if he gave out the money.
18. On cross-examination, he said that he was an agricultural officer but was not employed at the time of the incident. He agreed that motor cycle KMCM 493K belonged to him. He denied having been arrested inside TZ hotel. He denied seeing the two police officers, Muindau and Osore. TZ is a two- storey building. He denied being inside the hotel. He saw the orange sac in court. He was called at around 10.30am and arrested at around 12.30pm. He was wearing a T-shirt pink trouser.
19. Meshack was a regular customer and was the one who led him to ferry Ken. Meshack was arrested for receiving money. The OB shows that he was arrested for failing to register. He (DW1) was arrested because he did not give a bribe. Before his arrest, Meshack did not ask for money. He did not know why the KWS officers framed him and did not know them. He didn’t know why Meshack would frame him.
20. DW2 was James Muthusi who testified that he lived in Kiboko and was a farmer as well as a boda boda rider. The Appellant was known to him as a fellow boda boda operator. On 16/10/2020, he saw Peter Mutua Mwololo carrying a man with the boda boda . The pillion passenger alighted and walked near the office of Kasyoka advocate and DW2 greeted the Appellant and they spoke. As DW2 was almost leaving, he heard somebody say ndio huyu ndiyo huyu . DW2 looked back and saw that the Appellant had been arrested by some people. The Appellant was grabbed on his hands and trouser at the back and was put inside a KWS vehicle. The three men took the motor cycle keys and drove towards the police station. One of the men drove the motor cycle away. DW2 knew TZ hotel, a storey building and also knew Kilimanjaro bar and restaurant.
21. On cross-examination, he said that he lives at Kiboko and at Makindu. On 16/10/2020, he saw the Appellant and greeted him and they spoke for about five minutes. He had seen the Appellant about 5 days earlier. The Appellant is his friend but he did not know what the Appellant had come to do there. He did not know if the Appellant had ivory. DW2 saw KWS vehicle which is known to him. He did not know why the Appellant was arrested.
22. Directions were given that the appeal be canvassed through written submissions. The only submissions on record are for the Appellant.
The Submissions
The Appellant’s Submissions
23. The submissions were filed on behalf of the Appellant by the firm of Muia V.M & Co. Advocates.
24. It was submitted that the natural interpretation of the particulars in count II is that, the Appellant was stopped while on transit riding the alleged motor cycle and then arrested for transporting the alleged elephant tusks. It was contended that the evidence on record shows clearly that this was not the case. That, the prosecution’s evidence was that the Appellant was arrested in a particular hotel with a sack that had the elephant tusks.
25. It was submitted that the evidence of PW1 was inconsistent and had gaps which the prosecution failed to fill. That, PW1 said they did not have mobile numbers of the informer and there was no evidence on how the KWS officers met the informer in a hotel yet they did not know them and did not have their mobile numbers. That, PW1 also said that they arrested the Appellant on the second floor of TZ hotel but in re-examination, he said that they arrested him on the ground floor.
26. It was submitted that the registration number of the motor cycle allegedly used in the commission of the offence was KMCM 493K (pg. 6 line 9) while the one in evidence is KMCN 493K (pg. 6 line 6). It was contended that this is a major discrepancy which the trial magistrate ought to have considered and or noted in his judgment.
27. It was submitted that according to the evidence of PW3, he was with PW1 when they followed the Appellant to the upper room of TZ hotel where they found him seated at a wooden table. That, the Appellant did not have a licence so they arrested him and put him together with his motor cycle in their vehicle and took him to Makindu police station where the Appellant was charged. It was contended that the evidence of PW3 differed with that of PW1 who said that, he (PW1) was the one who rode the Motor cycle to the Makindu Police station.
28. It was submitted that from the evidence of PW1 and PW3, it is clear that they did not make any attempts to posse as buyers of the elephant tusks and did not even attempt to engage the Appellant on any negotiations for the purchase of the alleged elephant tusks. That, according to the two witnesses, they simply asked the Appellant what was contained in the sac that he (Appellant) allegedly had and the Appellant did not reply/respond thus prompting the witnesses to open the sac where they allegedly found the elephant tusks.
29. It was submitted that there was no inventory taken at the scene of arrest and there was no weighing of the elephant tusks. That, the weighing of the tusks was alleged to have been conducted at the police station but there was no inventory and /or Weighing Certificate produced in court. It was contended that this was a gap in the prosecution’s case which casts doubts as to whether the elephant tusks were indeed recovered at the scene alleged by the two witnesses.
30. It was submitted that according to the investigating officer (IO), PW4, the Appellant was arrested by PW1 and PW3 and taken to the police station where the matter was reported. That, it was reported that the Appellant was arrested at Kilimanjaro bar as per the occurrence book (OB) and that PW4 visited the scene-TZ hotel -where the Appellant was arrested. That, on cross-examination, PW4 said that TZ hotel and Kilimanjaro bar was one building and that the main building was Kilimanjaro bar and that TZ hotel was inside that building. That, the witness was not forth right as to the scene of arrest prompting the defence to apply for the scene of arrest visit.
31. It was submitted that the scene of arrest was critical in the proceedings and was visited by the court whereupon it was established that TZ hotel and Kilimanjaro bar are two distinct buildings hence the evidence of PW4 was not truthful and/or reliable.
32. It was submitted that the scene of arrest is crucial as it touches on count 2 of the charge sheet and that despite the trial magistrate having established the discrepancy as to the scene where the Appellant was alleged to have been found in possession of the elephant tusks, he went ahead and convicted him on the said 2 nd count of being found in possession. It was contended that this was erroneous as the credibility of PW4 was in doubt and his evidence unreliable. The court was urged to take note of the fact that the Appellant had in his defence maintained that he was not arrested at TZ and was not in possession of the elephant tusks and that the whole prosecution case was a frame up.
33. Reliance was placed on Charles Mbaabu Mburi -vs- Republic (2018) eKLR where the court reiterated the case of Jean Wanjala Songoi & Patrick Manyora -vs- Republic; Criminal Appeal No.100 of 2014 where the judge stated;
“… Possession would involve an element of control of the thing a person is said to have. It is in effect the act of having and controlling property. The right under which a person can exercise control over something to the exclusion of all others. In this case, that aspect of the offences was not established beyond reasonable doubt against the appellant”.
34. It was submitted that the trial court also failed to take note of the fact that there was no witness called to confirm the allegation that the Appellant was looking for a buyer for the elephant tusks and/or that there was an overt act by the Appellant to the witnesses to show that he attempted to sell and indeed was looking for a buyer for the tasks. That, the trial court ignored the Appellant’s sworn defence that the charges were a frame up against him (Appellant). That, the Appellant gave sworn evidence in his defence and categorically denied the two counts hence the trial Magistrate ought to have given the benefit of doubt to the Appellant and acquit him.
35. It was submitted that the cumulative effect of the evidence on record is that the prosecution failed to prove the case against the Appellant beyond reasonable doubt.
Duty of Court
36. It is now settled that the duty of a first appellate Court is to reevaluate the evidence on record, and draw its own conclusions keeping in mind that it never saw nor heard the witnesses.
37. I have considered the grounds of appeal, the submissions and the entire record, and the issue for determination is whether the prosecution proved its case beyond reasonable doubt.
Analysis & Determination
38. With regard to Count I, Section 92(2) of the Wildlife Conservation & Management Act, Cap 376 Laws of Kenya (the Act) provides;
“A person who, without permit or exemption issued under this Act, deals in a wildlife trophy , of any critically endangered or endangered species as specified in the Sixth Schedule or listed under CITES Appendix I, commits an offence and shall be liable upon conviction to a term of imprisonment of not less than seven years.”
39. Section 3 of the Act defines a ‘dealer’ as;
“Any person who, in the ordinary course of any business or trade carried on by him, whether on his own behalf or on behalf of any other person;
a. sells, purchases, barters or otherwise in any manner deals with any trophy; or
b. cuts, carves, polishes, preserves, cleans, mounts or otherwise prepares any trophy; or
c. transports or conveys any trophy;”
40. With regard to Count II, Section 92(4) of the Act provides;
“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.”
41. PW1, Cpl Isidory Mwandau and PW3, Duncan Odhiambo are KWS Officers and were the arresting officers. Their evidence was that on 16/10/2020, they received information from their senior, Daudi Aden, about a suspect at Makindu who had elephant tusks and was looking for a buyer. They left Mtito Andei at 10.00am and arrived in Makindu at 11.00am whereupon they laid ambush and at 2.00pm, they saw the suspect riding a motor cycle which was carrying an orange sac on the rear seat.
42. They followed the suspect into TZ hotel and found him sitting alone with a sac on the ground between his legs. They asked what was inside the sac but the suspect did not respond. The officers opened the sac and saw two pieces of elephant tusks and the suspect agreed that he did not have a licence hence was arrested. Dr. Goetz Mwebi, a Senior Research Scientist from the National Museums of Kenya (PW2) confirmed that the two animal remains were broken tusks from an elephant.
43. A casual look at the evidence of the two arresting officers suggests that the Appellant was caught red handed with two elephant tusks hence perfectly fitting into the definitions of dealing and being in possession of wildlife trophy. However, a keen re-evaluation of the entire evidence reveals gaps which the trial court ought to have noted.
44. According to the prosecution PW1 and 3 arrested the Appellant together and as such, and the expectation is that their accounts would match. However, PW1 testified that after arresting the Appellant, he took the motor cycle keys from the table and rode the motor cycle to Makindu police station while PW3 testified that they ferried the motor cycle using their vehicle. This in my view was a red light as to the credibility of the two witnesses . How could such a conspicuous detail come out so differently from the two arresting officers? Either the Appellant was not arrested as per the accounts of the two officers or that the two officers were not together during the arrest. This the prosecution did not resolve.
45. Secondly, PW1 and PW3 3 testified that they arrested the Appellant at TZ hotel but the OB report No. 26/16/10/2020 which was booked by PW1 at 1300hrs, states that the Appellant was arrested at Kilimanjaro bar . Further, the Investigating Officer, PC Goeffrey Kipkemoi (PW4) claimed to have visited TZ bar where the Appellant was arrested and his account was that TZ bar was inside a building called ‘Kilimanjaro’. However, the trial court visited the scene and established that; ‘Kilimanjaro bar is on its own building and TZ bar & restaurant is also on a separate building.’ In my view, it is alarming that three witnesses who ‘saw’ the crime scene could not give an accurate description of the same. This was another red light that the evidence given by PW1, PW3 and the I.O could not have come out of an actual arrest or that they were deliberately distorting the evidence. Nevertheless, this contradiction ought to have been resolved..
46. The trial court established fact that Kilimanjaro bar and TZ bar the alleged scene of crime are in two distinct buildings, these the inconsistencies in the testimonies of PW1, 3 and 4 are not minor as they have a bearing on their credibility. In Ndung’u Kimani -vs- Republic (1979) KLR 282 , the Court of Appeal stated as follows on credibility of witnesses;
“A witness in Criminal Case upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
47. In this case, the trial court relied heavily on the evidence of PW1 and 3 to convict the Appellant. The re -evaluation of the evidence of the two witnesses does not stand and falls within the description of the Court of Appeal in Ndung’u Kimani. The case for the prosecution is set heavily on the alleged arrest of the appellant at a certain time at a certain place in possession of the wildlife trophy. However, the contradictions in their testimony , the confirmation by the court that witnesses were referring tow two different scenes of arrest creates the impression that they were not telling the truth and the trustworthiness of their testimony became suspect. Their testimony rendered them unreliable witness and it was unsafe for trial court to accept their evidence and use it to convict the appellant
48. . The evidence of PW1 and 3 cannot be relied on to prove beyond reasonable doubt that the two elephant tusks were in possession of the Appellant.
49. As for the disparity in the registration number of the motor cycle in PW1’s evidence, I am of the view that the same was a typographical error as the Appellant acknowledged that motor cycle registration number KMCN 493K belonged to him and was the same motor cycle that was produced in evidence as per the list of exhibits on record.
50. The upshot is that the case for the was marred by inconsistencies that ought to have been resolved to the benefit of the appellant.
51. The appeal succeeds. The conviction is quashed. The sentence is set aside. The appellant be set at liberty unless otherwise legally held.
JUDGMENT dated signed and delivered virtually this 22 nd May 2026
Mumbua T Matheka
Judge
CA Chrispol
Appellant Present virtually
Mr. Musyoki for State
Mr. Muia for appellant
JUDGMENT HCCRA E039 OF 2024 Page 2 of 2MWOLOLO V R