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MagistrateOtherCriminal Case (Makindu) — charge of Dealing in wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act· [2025] KEMC 98 (KLR)

Republic v Mukenga (Criminal Case E586 of 2023) [2025] KEMC 98 (KLR)

Magistrates' Court
14 May 2025
2,762 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Makindu court convicted a man of illegally dealing in elephant tusks, confirming that proving possession is central to Kenya's wildlife trafficking cases.

What this practically means

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Executive summary

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Kasoo Mukenga was charged with dealing in a wildlife trophy without a permit contrary to section 92(2) of the Wildlife Conservation and Management Act, the particulars being that on 28/6/2023 at Subati area, Kibwezi Sub-County, he was found dealing in four elephant tusks weighing about 33.5 kg with another person not before court. After four prosecution witnesses testified — two KWS rangers involved in a sting in which an officer posed as a buyer, a museum scientist who confirmed the items were elephant tusks, and the investigating officer — the court found the accused had a case to answer and, after part of the prosecution case was heard by a transferred magistrate, took over under section 200(3) of the Criminal Procedure Code. The accused gave a sworn denial, claiming he was arrested at his gate while returning from the market. The court framed four issues: possession, dealing, endangered status and absence of a permit. It held that 'deal' is broadly defined by section 3 of the Act and that 'possession' takes the Penal Code section 4 meaning. It found the officers' evidence consistent and corroborative, the chain of custody clear and unbroken, the defence unsupported by any evidence of framing or grudge, and the tusks confirmed as those of an endangered species with no permit. Applying the Woolmington principle and the Miller standard, the court found the case proved beyond reasonable doubt, rejected the defence, and convicted the accused of dealing in a wildlife trophy of an endangered species.

Key legal issues

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01

Elements of the offence of dealing in a wildlife trophy under section 92(2)

Holding

The prosecution must establish possession of the tusks, dealing in them, their endangered status, and absence of permit or exemption

Reasoning

The court construed section 92(2) with section 3 of the Wildlife Conservation and Management Act, which defines 'deal' broadly to include selling, transporting and possession with intent to supply. Because 'possession' is not defined in the Act, the court imported the definition in section 4 of the Penal Code, including constructive possession and joint possession with knowledge and consent.

02

Whether possession and dealing were proved to the required standard

Holding

Yes — possession and commercial dealing were proved beyond reasonable doubt on consistent and corroborative prosecution evidence

Reasoning

The arresting officers' evidence was consistent and corroborative; the chain of custody from recovery, marking (KM1–KM4), transmission to Nairobi and analysis by PW2 was clear and unbroken. The accused's defence that he was framed lacked any suggestion of grudge, demand or motive. The court applied the Woolmington principle that the burden lies on the prosecution and the Miller standard that proof need not reach certainty but must carry a high degree of probability.

p. 4
03

Whether the tusks were of an endangered species and whether the accused had a permit

Holding

The tusks were elephant tusks of an endangered species and the accused had no permit or exemption

Reasoning

PW2, a Research Scientist at the Kenya National Museum, analysed the four pieces and confirmed they were elephant tusks. The Sixth Schedule lists the African elephant as an endangered species. No permit or exemption was produced, satisfying the final elements of section 92(2).

p. 5

Legal principles established

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  • The offence of dealing in wildlife trophy is not proven unless possession of the trophy by the accused is proven, and possession borrows the Penal Code definition

Court orders

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  1. 1.Finding the accused person GUILTY of the offence of Dealing in wildlife trophy of an endangered species contrary to section 92(2) of the Wildlife Conservation and Management Act and convicting him accordingly
Jurisdiction invoked
Original criminal jurisdiction over an offence under section 92(2) of the Wildlife Conservation and Management Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Mukenga (Criminal Case E586 of 2023) [2025] KEMC 98 (KLR)", Case Analysis (2025). Criminal Case (Makindu) — charge of Dealing in wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/98/eng@2025-05-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.