Papayio Ole Kesio v Republic

6. The Appellant said he was arrested at the petrol station and taken to the park where he was forced to take photographs with an elephant tusk. 7. The Appellant called a witness, DW2, who said he was the one who had hired the Appellant to take him to the petrol station and he said at the petrol station two people with civilian clothes arrested the Appellant. 8. The trial court convicting the Appellant and sentenced him to seven (7) years imprisonment. 9. The Appellant has appealed to this court on the following grounds:i. That the learned trial Magistrate erred in both law and fact when she misdirected herself. ii. That the learned trial Magistrate erred in both law and facts when she shifted the burden of proof from prosecution to the Appellant. iii. That the learned Magistrate erred in law when she considered the evidence adduced by prosecution which was full of massive contradictions. iv. That the learned trial Magistrate erred in law in convicting the Appellant on poor investigations adduced by prosecution. v. That the learned trial court Magistrate erred in law fact by convicting and sentencing the Appellant to 7 years imprisonment without considering that the sentence meted on the Appellant was harsh and excessive. vi. That the learned trial court Magistrate erred in law fact by convicting and sentencing the Appellant to 7 years imprisonment without considering the period spent in remand custody prior to conviction and sentence as requires Section 333 of the CPC. vii. That the learned trial Magistrate erred in law fact by convicting the Appellant and sentencing him to 7 years imprisonment without considering his reasonable defence. 10. The Appellant filed written submissions as follows:- the appellant submitted that he was not represented by counsel which infringed on his rights. He argued that the trial court should have informed him of his right to legal representation and directed that he be provided with an advocate at the expense of the state as stated in the Legal Aid Act. 11. The appellant submitted further that the investigation officer herein was not at the scene of the incident hence his evidence should not have been admitted. The report on the exhibits were further not presented by the maker and the prosecution led no evidence to prove that the report was done by an expert. 12. It was the appellants argument that the prosecution’s evidence was inconsistent and contradictory. PW1 and PW2 testified that the appellant was arrested around 3pm which was contradicted by PW3 who stated that the arrest occurred at 11 am. 13. On the sentence the appellant submitted that it was too severe as he was remorseful and the he was a first offender. The appellant pleaded for another chance back to society so that he may continue with his parental responsibility. 14. The prosecution alternatively submitted that the sentence imposed was lenient and encourage the court to enhance the same. The witnesses identified the appellant. The prosecution’s witnesses were consistent and were corroborated by the evidence that was produced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19632/eng@2025-02-25 2

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15. That the appellant was in possession of Ivory which was confirmed by experts that the same were from elephants which under the law are considered endangered species. The prosecution argued that the lower court was correct in its conviction and urged the court to maintain the same. 16. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced at the trial court and to arrive at its own conclusion whether to support the findings of the trial court. 17. The Court of Appeal in Okeno vs Republic [1972] EA 32 held that: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA 424.” 18. The sole issue for determination in this appeal is whether the prosecution proved the guilt of the Appellant to the required standard. 19. The appellant was arrested in possession of Ivory which was confirmed by experts that the same were from elephants which under the law are considered endangered species. 20. There is evidence that the appellant was in possession of one (1) piece of elephant tusk weighing three (3) kilograms concealed in a white manilla sack being a trophy of an endangered species as listed in the 6th Schedule without a licence. 21. Section 3 of Wildlife Conservation Management Act defines wild trophy in 2 parts. It provides that Wildlife means; ‘‘any wild and indigenous animal, plant or microorganism or parts thereof within its consistent habitat or ecosystem or land or in water” 22. Trophy is defined as; ‘‘any bone, claw, egg, feather, hair, hoof, tooth or tusk of an animal, and of any species of plant, any bark, branch……………..’’ 23. Section 95 of the Wildlife Conservation and Management Act 2013 which provides as follows: “ Any person who keeps or is found in possession of a wildlife trophy or deals in a wildlife trophy, or manufactures any item from a trophy without a permit issued under this Act or exempted in accordance with any other provision of this Act, commits an offence and shall be liable upon conviction to a fine of not less than one million shillings or imprisonment for a term of not less than five years or to both such imprisonment and fine.’’ 24. The legal concept of possession is defined under section 4 of the penal code as: “ (a) (a) be in possession of or to have possession includes having in one's own personal possession but also knowingly having anything in the actual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19632/eng@2025-02-25 3

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possession custody of any other person or having anything in any place whether belonging to or recapped by oneself or of any other person. (b) if there are two or more persons and any one or more of them with the knowledge and consent of the rest has or have anything in his or their custody of possession it shall be denied and taken to be in the custody and possession of each and all of them.” 25. Under this section the definition of possession connotes two elements being in physical control of the items of the offence and it includes joint control with another. Secondly, knowledge or intention of having the article, instruments, thing or items constituting the offence. 26. I find that the prosecution proved the guilt of the Appellant to the required standard. 27. However, the sentence of seven (7) years is excessive and I reduce the same to five years imprisonment. 28. The period the appellant was in custody to be taken into account when computing the sentence. DATED, SIGNED AND DELIVERED THIS 25TH DAY OF FEBRUARY 2025 VIRTUALLY VIA MT AT VOI. ASENATH ONGERI JUDGE In the presence of:Prosecutor: Mr. Ngigi Court Assistant: Maina The Appellant present in court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19632/eng@2025-02-25 4

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