Republic v Lemtambo (Criminal Case E086 of 2022) [2025] KEMC 70 (KLR)
The bottom line
#A Kenyan court acquitted a man accused of zebra meat poaching because prosecutors failed to positively identify him or even prove the carcass existed.
What this practically means
#Executive summary
#Key legal issues
#Whether a prima facie case was established against the accused person
No prima facie case was established; the prosecution failed to prove that the offences were committed and to link the accused to them
The court adopted the Bhatt and Galbraith tests, holding that the prosecution must establish the ingredients of the offences and link the accused to them. It found no positive identification of the accused at the scene, no reliable evidence of the carcass's existence, and no chain of custody. In those circumstances the case had to be stopped at the close of the prosecution case.
Whether the accused was positively identified as one of the suspects at the scene
No; the identification evidence was unsafe, being based on a fleeting encounter in darkness at 5:00 am in bushy terrain, and PW1 never mentioned the accused in his statement to police
PW1 did not mention the accused in evidence-in-chief, did not give his name to police, and even sought identities from the apprehended suspect. The suspect who mentioned 'Saitoti' was not called to testify, and Saitoti is a common name. Visibility at 5:00 am in a bushy park could not support a positive identification.
Whether the existence of and dealing in the zebra carcass was proved
No; the carcass was never produced, no inventory or certificate of disposal was made, and the scientist analysed only a photograph, not the carcass
The court held that clear evidence of the carcass's existence and a chain of custody were required. The alleged receiver of the carcass was not called, the trial proceedings of the convicted co-suspect were not produced, and a photograph cannot substitute for a real carcass in analysis. Without proof of the carcass there is no basis for the dealing charge.
Legal principles established
#- A prima facie case is one on which a reasonable tribunal, properly directing its mind to the law and the evidence, could convict if no explanation is offered by the defence
- It is not the duty of the accused person to fill in the gaps in the prosecution case; curiosity is not a reason to place an accused on his defence
- Where evidence against an accused is entirely of identification, that evidence must be scrutinized carefully and be free from the possibility of error
Court orders
#- 1.The accused person has No Case To Answer in respect of the offence of Entering a national park without a permit contrary to section 102(1)(a) of the Wildlife Conservation and Management Act
- 2.The accused person has No Case To Answer in respect of the offence of Dealing in meat of a wildlife species without a permit contrary to section 98(1) of the Wildlife Conservation and Management Act
- 3.The accused person is hereby Acquitted of Both Counts accordingly, pursuant to section 210 of the Criminal Procedure Code
- 4.The accused person be released from custody forthwith, unless otherwise lawfully held
- Jurisdiction invoked
- Original criminal jurisdiction over offences under the Wildlife Conservation and Management Act; acquittal pursuant to section 210 of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Lemtambo (Criminal Case E086 of 2022) [2025] KEMC 70 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/70/eng@2025-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.