High Court 7486 of 2026

Penal Code (Cap. 63) Laws of Kenya that on the same day, time and place as in the first count he willfully and unlawfully assaulted No. KWS5699 Sergeant Juma Mwabavu thereby occasioning him actual bodily harm. 4. The third count was failing to comply with a lawful requirement contrary to section 101 of the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya that on the same day, place and time as in the previous charges having been issued with a lawful requirement to surrender for arrest failed to comply with the said requirement without a reasonable excuse by resisting and fighting. 5. The appellants pleaded not guilty to the charges. After full trial, they were convicted as charged and sentenced as follows: a. Count 1, each fined KShs 3 million in default to serve five years’ imprisonment. b. Count 2, the 1st appellant fined KShs 10,000/= in default to serve six months’ imprisonment. c. Count 3, the 1st appellant fined KShs 100,000/= in default to serve two months’ imprisonment. 6. The sentences were ordered to run concurrently. 7. Dissatisfied with the trial court’s decision, the appellants have moved to this court on appeal based on the grounds outlined in their memorandum dated 9th October 2024. The six grounds outlined in the memorandum are basically two grounds. First that the cases facing the appellants were not proved against each of the appellants beyond a reasonable doubt and second that the sentences handed out ere harsh in the circumstances. 8. The appeal was heard by way of written submissions filed by learned counsel for the appellant alone. The respondent opted not to file submissions. Learned counsel for the appellants urged the court to allow the appeal. 1. This being a first appeal, the court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses as per the guidance of the Court of Appeal in Okeno v. Republic (1972) EA 32 at 36 that; “An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v. R., (1957) EA 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions (Shantital M. Ruwala v. R., (1957) E.A. 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 findings and conclusions; 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 the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E.A. 424.” 9. The prosecution’s case against the appellants was as follows. On 3rd March 2022, Kenya 2/14

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Wildlife Service (KWS) officers at the Lunga Lunga Border post and Lunga Lunga Outpost namely PW 1, Sgt. Juma Mwabavu, PW 2, Sgt Seif Ali, PW 3, Major Kiplangat Bett and PW 7, Snr Sgt Patrick Boit received intelligence information that two people from Mwangulu area were in possession of a live Pangolin and were going to transport it to Lunga Lunga area. The officers an ambush for the duo at Kibaoni area. The two appellants herein appeared being ferried on a motor cycle and were dropped at Kibaoni. They were carrying luggage in a sack. The KWS officers approached them and identified themselves as such. The two appellants took off in different directions leaving the luggage on the ground. 10. PW 1, Juma Mwambavu and PW 3, Major Kiplangat Bett pursued Jimmy Nyawa the 1st appellant who was armed with a metal rod. The 1st appellant hit PW 1 with the metal rod near the left eye and as he raised the rod to hit him a second time, PW 1 managed to hold the rod which in the process cut him deeply on the palm. PW 3 sensing danger shot in the air whereupon the 1st appellant fell on the grass and they managed to arrest him. 11. PW 2 Sgt Seif and PW 7 Snr Sgt Boit pursued the 2nd appellant Guni Nguta and arrested him a short distance away and recovered a knife from him. 12. PW 7 called for their station motor vehicle whereupon they took the appellants and the sack to the police post. The sack was opened and inside were two plastic containers neatly woven at the open ends using a rope so as to accommodate the live Pangolin that was inside and also provide space for its breathing. 13. The two appellants were asked for a permit that allowed them to be in possession of the Pangolin but none of them had one. 14. An inventory of the items recovered was prepared. There was the live Pangolin in two plastic containers and a sack, a metal rod, and a knife. The inventory was signed by the KWS officers and the appellants as well. Photographs of all the items were taken and produced in court as exhibits. 15. PW 1 proceeded to Lunga Lunga hospital for medical attention. 16. An exhibit memo form was prepared and the live pangolin was forwarded to the KWS Veterinary Laboratories for examination and classification of the species to which the recovered animal belonged. 17. PW 5, Data Nicholas gave evidence on behalf of his colleague who attended to PW 1 at Lunga Lunga hospital. He produced the P3 form completed by his colleague Dr. Rajab. He said that PW 1 had sustained a cut wound on the left thumb and it was stitched. He also had bruises on the left upper limb secondary to assault. The degree of injury was assessed as harm. 18. He also said he attended to Jimmy Nyawa, the 1st appellant on 6th March 2022 who had a history of assault as well as eye and neck pain. The wound was healing and also had a bruise of the left chin, right thumb from assault. 19. PW 4, Jeremiah Jeremiah Pogion Kaitoek is a veterinary doctor specialized in wildlife medicine. He examined the animal presented to him by PW 7 and established that it was a 3/14

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ground Pangolin known by the scientific name of Smutsai temmickii. He said it is a nocturnal animal and most difficult to keep in captivity as it feeds on specific termites. He issued a certificate to the KWS officers for its release back to the natural habitat. He also said that it is a highly trafficked animal for its scales and it is also eaten. 20. PW 6, Cpl Ezekiel Juma of Lunga Lunga police station was the investigating officer in the case. His evidence was basically a recount of what the KWS officers recorded about the arrest of the appellants and the recoveries made. 21. Each of the appellants gave sworn evidence in defence. They denied that they committed the offences. Jimmy Nyawa Mwamuse, the 1st appellant gave evidence as DW 1 and Guni Nguta Guni, the 2nd appellant gave evidence as DW 2. They called two witnesses common to both of them, DW 3, Mwauchi Mwakalu and DW 4, Francis Mulwa. 22. The 1st appellant gave a long account of the events leading to his arrest together with the 2nd appellant, denying that they were in possession of the Pangolin. DW 2 adopted the evidence of DW 1 and made a few additions of his own. 23. The evidence of the 1st appellant was that on 2nd March 2022, he was away from home in a farm together with the 2nd accused person when one Francis Nyawa, a person well known to him, called him back home. When they arrived there, Francis had left to the shops. They went to the shops and found him there with two other people unknown to him but whom he later came to know as Lucas Kimeu and Mwauchi Mwahui. They had a discussion at which the two strangers said they were dealing in gemstones and one of their colleagues had taken gemstones to town and that they had business to conduct the next day at Tsunga. So they requested to spend the night at the 1st appellant’s home while the 1st appellant went with the 2nd appellant and they spent at his home. 24. The following day, the two strangers who had spent at his home went to where the appellants were. There was also a driver and two other young men, one had a “gunia” or sack. Francis joined them. The group then proceeded to wherever they were going to. 25. At around noon, Francis called the 1st appellant and told him he was passing by. When the 1st appellant reached his home, he found Francis and Lucas there. Francis then told him that Lucas was turning against him and that he was a bad person as he had lied about working with gemstones. Francis and Lucas left to Kibaoni. Francis came back being carried on a motorcycle after about 20 minutes. The motor cycle rider told him that he was to take back but Francis declined then said they should all leave. At that point, Mwauchi, who was Francis’ friend arrived and the two left together. 26. The two appellants decided to go to the shops but then they saw Lucas approaching on a motor cycle. Lucas asked them why they were leaving. He then asked them to help him find Francis by calling him on phone as they owed him KShs 25,000/=. The 1st appellant told him where Francis and Mwauchi had gone and Lucas called him. Lucas went ahead of the two appellants as their motor cycle needed to fuel first. The first appellant passed by his home and picked a bottle to purchase kerosene. 4/14

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27. They proceeded to Kibaoni whereupon the 2nd appellant alighted first so that the 1st appellant could purchase kerosene. At that moment, another motor cycle with two occupants appeared and blocked theirs and ordered him to get off without explaining anything. The people whose motor cycle was blocking theirs then switched off the appellants’ motor cycle. The 1st appellant refused to alight. The two people held him by the shirt from behind and he got off the motor cycle. Seven other people emerged from a thicket pointing pistols but dressed in civilian clothes. They ordered him to sit down and pulled a metal rod he had got from the motor cycle and he fell. He heard someone give an order to shoot. He was then arrested, handcuffed and beaten up thoroughly. The 2nd appellant was also followed and arrested. They were placed in a motor vehicle and as it was moving they saw Lucas in a small light grey car with a sack between his legs. He was beaten and forced to sign some documents. 28. The 1st appellant said that Lucas was not known to him before that time and he did not know what Francis does. He said that Lucas fixed him because Lucas could not find Francis. He vowed that he had never seen a pangolin before. 29. The 2nd appellant said that he got off the motor cycle to go visit his sister when police arrived and told him to get off and arrested and handcuffed him and took him to the road where he found the 1st appellant in a vehicle. They were then taken to the police station where they were told to produce a permit for an animal that he had never seen. He was then forced to sign He said he did not know Francis and Lucas. 30. The appellants called two witnesses between them, DW 3, Mwauchi Mwakulu who said that he had no idea on how and why the appellants were arrested. His evidence was therefore not useful to the court in general. 31. DW 4, Francis Mutua was the one who ferried the appellants on his motor cycle to the point where they were arrested. He said the 2nd appellant Guni was the one who called him while they were at Mwangulu and asked him to take the two appellants to Lunga Lunga which he did. 32. While there a motor cycle approached them with two people. The people on board appeared interested in the 2nd appellant Guni. They told the 1st appellant to get off the motor cycle and the 1st appellant took a metal rod belonging to DW 4. He fell as he walked backwards. The officers told DW 4 to leave. He said that the 2nd appellant had a one and a half litre botlle of water from which he wanted to fetch kerosene. He did not know what the officers wanted from the 2nd appellant. 33. Learned counsel for the appellants submits that first the actual culprit in this case was aided to escape and the appellants ensnared then arrested and charged as sacrificial lambs, secondly, there was no expert evidence tendered to prove that the exhibit produced in court was a Pangolin and third that the trial court unfairly rejected the plausible evidence tendered by the appellants that exonerated them from the charges and thereby reversed the burden of proof and placed it upon the appellants. 5/14

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34. Learned counsel submits that for these reasons, the conviction was unsafe and the sentence unjust and this court should therefore reverse the trial court’s findings, acquit the appellants and set them at liberty. 35. Learned counsel submits that the evidence tendered by the prosecution witnesses was inaccurate, inconsistent and contradictory and that the learned trial magistrate erred when she failed to find as much. However, that is not correct. That there was no evidence of possession of the Pangolin by the appellants. That the witnesses were inconsistent on what was actually recovered with PW 1 describing it as two nylon bags, PW 3 as white “gunia” and yet PW 2 described it as green “gunia.” Further that the failure of the investigations to dust the said luggage of fingerprints further eroded the credibility of the prosecution evidence that any of the appellants was in possession thereof. 36. Learned counsel submits further that the failure to open the luggage at the scene leads to further doubt that it was a pangolin or even that there was anything inside there at all. 37. Learned counsel submits that instead the true owner of the luggage allegedly found with the appellants was Francis Nyawa. 38. I have considered the grounds of appeal, the record of appeal and the submissions by learned counsel for the appellants. The issue for determination is whether or not the prosecution proved its case against the accused persons beyond a reasonable doubt and whether in her determination of the case and finding the appellant’s guilty as charged the learned trial magistrate made any errors of law and fact. 39. Contrary to the submissions by learned counsel for the appellants, I find evidence of PW 1, PW 2, PW 3 and PW 7 consistent throughout on how they arrested the appellants. Learned counsel has not pointed out any material contradictions or inconsistencies in their evidence. The only issue pointed out is that one witness said he saw the two appellants carrying two nylon papers, another one that it was a green “gunia” and a third one that it was a white “gunia.” That is not a material inconsistence and certainly not a contradiction but a minor discrepancy with regard to the description of what the two were seen carrying and eventually recovered from them. 40. The prosecution witnesses were all consistent that the appellants were on the motor cycle and they reached a point where it stopped and they alighted with the luggage which they dropped on the ground upon the officers identifying themselves. The witnesses said that the luggage was not opened at the scene until they reached the police station. There is no indication that there was opportunity to change the luggage along the way. There was a chain of custody form produced in court to show how the exhibits moved from the point of recovery to the eventual release of the Pangolin back to its natural environment. 41. In fact, in his testimony, the 1st appellant stated that earlier that morning when he met Francis and his two friends Lucas and Mwauche, there were also two other young men, one with a “gunia” or sack, and a driver. He also said that after their arrest, they saw Lucas in a car with a “gunia” or sack between his legs. This means the issue of there being a sack did 6/14

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not arise from the prosecution but it is something the appellants had interacted with all along, noting that they had always been together from beginning to end. 42. I am satisfied that the luggage that was opened at the police station was the same one that the appellants had seen earlier in the day and which they were carrying before being confronted by the KWS offices and they dropped and took off in different directions. For me, the witnesses describing the luggage either as nylon bag, “gunia” or sack is an issue of description of how one refers to the material from which the luggage was made. The luggage was photographed and the photographs were produced in court as exhibits. It is not a material discrepancy that can lead to a finding that the witnesses were inconsistent. 43. There was no need to dust the luggage of fingerprints, as contended by learned counsel, when the evidence tendered was that the appellants had been found red-handed with the same. 44. Learned counsel for the appellants submits that the two appellants were innocent citizens who were ensnared in a calculated trap. That may be true or not true. What is material is whether they were found in possession the Pangolin. 45. The two appellants were found together. In his evidence, the 1st appellant testified that indeed he had been with the 2nd appellant from the previous day until the time they were arrested. It is inconceivable how Francis could have called and convinced the 1st appellant to leave his work at the farm to introduce him to some strangers whom the 1st appellant then allowed into his home to spend the night then the following day, he was back dealing with Francis and the two supposed strangers until the time the two were arrested. 46. It is highly probable that indeed Francis had some deal with Lucas and Mwauche, the supposed strangers. But it can also be strongly inferred from their conduct, that the appellants were part of that deal or they were roped into it at some point after elaborate discussions with Francis and his two friends, which led the 1st appellant to surrender his home for Francis and his colleagues to sleep. The two appellants then worked together with Francis and his colleagues until the luggage was handed over to the appellants. The two appellants were then handed over the luggage and they were in the process of ferrying it away when they were intercepted by the KWS officers. It must be the case, that seeing that so many people were involved, one of them or even another person who was aware of the goings on alerted the KWS officers who then set out to arrest them. 47. Learned counsel submitted that since the luggage that was recovered at the scene where the appellants took off was not opened right there then it was not proved that it was the same one that had reached the police station. However, there was no indication that any of these officers begrudged any of the appellants so as to plant the Pangolin on them. In fact, the appellants’ problem was with Francis, Lucas and Mwauche. So if their position is that they were ensnared by the three it cannot be the case again that the KWS officers tampered with the luggage. I find no reason why the officers would have planted the luggage upon the appellants but that the appellants were in possession thereof. 7/14

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48. I find that the denial by the appellants that they were arrested while in possession of the luggage, even with the evidence of DW 4 who was their motor cycle rider was incapable of creating a doubt in the strong evidence of the prosecution witnesses, PW 1, PW 2, PW 3 and PW 7. 49. The luggage was opened and found to contain a Pangolin carefully concealed in two plastic containers customized to ensure that it survived. Whoever did that and even the appellants who received and were ferrying intended that it should not be easily identifiable as such. 50. There is no dispute that a Pangolin is a protected wild animal. According to Wikipedia, the ground pangolin, also known as Temminck's pangolin, Cape pangolin or steppe pangolin is a species of pangolin from genus Smutsia of subfamily Smutsiinae the within family Manidae. It is one of four species of pangolins which can be found in Africa, and the only one in Southern and Eastern Africa. Wikipedia. 51. Indeed, the Manis temminckii is listed under Appendix I of the Convention On International Trade in Endangered Species of Wild Fauna and Flora (CITES) of which Kenya is a party having ratified the treaty on 13th December 1978, which entered into force on 13th March 1979. 52. Article II of CITES provides that Appendix I shall include all species threatened with extinction which are or may be affected by trade. Trade in specimens of these species must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances. 53. Article XVII(1)(a) of CITES provides that parties to the Convention shall take appropriate measures to enforce the provisions of the Convention and to prohibit trade in specimens in violation thereof which measures shall include (a) to penalize trade in, or possession of, such specimens, or both. 54. Kenya has taken such measures to enforce the provisions of the convention as provided for under section 92(4) of the WCMA that one is required to have a permit in order to be in possession of the Pangolin. The section provides that: ‘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.’ 55. The prosecution evidence tendered by PW 1, PW 2, PW 3 and PW 7 was consistent that the two appellants dropped their luggage and ran away when the officers introduced themselves as being from KWS. Each of them was however arrested a short distance away and placed in custody and then taken to Lunga Lunga police station. Photographs of the luggage they were found with were produced in court as exhibits. They had no reason to take off if they thought they were innocent as learned counsel submits. 8/14

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56. An inventory of the items recovered from the appellants was prepared and they signed it. Their allegation afterwards that they signed under duress was an afterthought only raised too late in the day in court for purposes of their defences. 57. Learned counsel also submits that the expert evidence relied upon had no foundational proof of expertise and that PW 4 did not satisfy the requirements of section 48 of the Evidence Act (Cap. 80) Laws of Kenya that he is especially skilled in the relevant science or art. The said section provides as follows: 48. Opinions of experts. (1) When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity, or genuineness of handwriting or fingerprint or other impressions. (2) Such persons are called experts. 58. PW 4 gave evidence of his training as a veterinary doctor specialized in wildlife medicine with a Master’s Degree in Wildlife Medicine and a member of various wildlife associations and with over 20 years’ experience working in the wildlife field. I am satisfied that he was well grounded in wildlife forensics and therefore an expert in that area. 59. Moreover, section 77(1) of the Evidence Act provides that: “In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.” 60. PW 4 gave evidence that the animal was submitted to him for examination and analysis as to its species. PW 4 being a government analyst, his evidence of identification of the animal was admissible under section 77 of the Evidence Act. He did not have to produce in court documentary proof of his academic qualifications or professional training as contended by learned counsel for the appellants. 61. His evidence was the identification of the animal that the appellants were found in possession of. He identified it by both its physical characteristics from which he stated it was as a live mammal. It is covered with keratin scale that form a protective armour on the upper body surface from behind the head to the tail. It coiled when handled. Has a long tail, small head with abdominal area not covered with scales that stretched to the tail and that Pangolin is the only mammal with protective keratin scale. He then identified the live mammal by its local name of ground Pangolin from the Pangolin species and its scientific name as Smutsi temmickii. 62. Learned counsel has not stated why identification of the animal by its physical features would not be sufficient. This was a live animal and not a degraded or processed part without discernible physical characteristics that would require, for instance DNA analysis. 9/14

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63. There was no contrary evidence to discredit that tendered by PW 4 on the identification of the animal. Cross-examination did not impeach that evidence. 64. Therefore, contrary to the submission by learned counsel for the appellants, I am satisfied that PW 4 was a qualified expert who properly identified the animal that was found in possession of the appellants. His evidence met the criteria set by the Court of Appeal in the case of Mutonyi & another v Republic [1982] KECA 25 (KLR) to wit: “... an expert witness who hopes to carry weight in a court of law, must, before giving his expert opinion: a) Establish by evidence that he is specially skilled in his science or art. b) Instruct the court in the criteria of his science or art, so that the court may itself test the accuracy of his opinion and also form its own independent opinion by applying these criteria to the facts proved. c) Give evidence of the facts on which may be facts ascertained by him or facts reported to him by another witness.” 65. I am satisfied from the evidence that the appellants were found in possession of the Pangolin and they had no permit or exemption issued under the Act for the same. 66. Consequently, I find that the prosecution proved the first count against the appellants beyond a reasonable doubt and the learned trial magistrate was correct in convicting the appellants for the same. Their appeal on the first count therefore fails. 67. The second count is that the 1st appellant assaulted PW 1 thereby occasioning him actual bodily harm. 68. On the conviction of the 1st appellant for assault causing actual bodily harm and for failing to comply with a lawful order, learned counsel submits that the 1st appellant offered a convincing explanation of why he reacted the way he did. He was apprehensive when the officers confronted them without identifying themselves. He took the metal and was retreating backwards when PW 1 held the metal rod and injured himself. He had not guilty mind to injure PW 1. 69. There is no dispute that the 1st appellant armed himself with a metal rod that he took from the motor cycle and it was the one he used to hit PW 1. The evidence of DW 4 on the same supports that of PW 1 and PW 3. The evidence of all the KWS officers was that the two appellants took off in different directions when the KWS officers identified themselves. This is contrary to the evidence of the 1st appellant that he remained at the scene throughout. The 1st appellant concedes that the officers fired a shot or shots in the air. Why would one have fired the shot if he had surrendered? It is only logical from the explanation of PW 1 and PW 3 that when he took off and was pursued by them, he turned violent and hit PW 1 in the face and was again going to hit him a second time when PW 1 held the metal rod. Seeing the volatile situation and since the 1st appellant was armed PW 3 had to shoot in the air to scare him. Indeed, that is what caused him to fall down and he was subdued. I therefore dismiss his allegation that he had no intention to hurt PW 1 and that PW 1 injured himself. I 10/14

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am satisfied as the learned trial magistrate did that the 1st appellant deliberately hit PW 1 with the metal rod in a bid to escape from the scene, having been found with what he knew was the pangolin without a permit or authorization as required by law. 70. I am satisfied as the trial court did that the charge of assault causing actual bodily harm against the 1st appellant was proved beyond a reasonable doubt and the learned trial magistrate was correct in convicting him for the same. 71. As for the conviction for failing to comply with a lawful requirement or demand made or given by an authorized officer under section 101(a) of the WCMA, learned counsel submits that the officers were in civilian clothes and did not identify themselves to the 1st appellant nor tell him that he was under arrest. That the prosecution failed to demonstrate that there was any lawful order uttered to the 1st appellant by the officer. 72. That submission cannot be accepted given the findings above that the KWS officers identified themselves whereupon the appellants took off and they were pursued and arrested. The 1st appellant put up a spirited effort to get away by hitting PW 1 who was pursuing him with the metal rod clearly in defiance of the requirement to stop. He only responded to the sound of gunfire, otherwise he was intent on defying the officers. 73. I therefore find that the prosecution proved the charge on the third count beyond a reasonable doubt and the learned trial magistrate properly convicted him. Consequently, the appeal on that ground fails as well. 74. Learned counsel submits that the learned trial magistrate failed to analyze the defence evidence which was cogent and plausible and sufficiently cast doubt on the prosecution’s case. 75. On the issue of the learned trial magistrate not giving due regard to the appellant’s defence, I find the contention by the appellant not true. The trial court did not give an elaborate analysis of the evidence. But it is apparent that the trial court simply did not believe the evidence by the appellant, denying that they had committed the offence, to be capable of discounting the evidence that was tendered by the prosecution. The trial court clearly held that it had considered the prosecution’s evidence vis-a-viz that of the defence and found the prosecution evidence credible while that of the defence was an afterthought. As was held in the Okeno case (supra), notwithstanding the form taken by the magistrate’s court judgment, I am nevertheless satisfied that the learned trial magistrate did make her own evaluation of the facts, in this case, the defence by the appellant, although this is not elaborate in her judgment. On the evidence adduced at the trial, the judgment positively supports the findings that the offences were committed by the appellants. Any irregularity in failing to elaborately evaluate the defence tendered by the appellants did not in fact occasion a failure of justice. I am satisfied that that even if an elaborate analysis had been done, the learned trial magistrate would have arrived at the same conclusion and convicted the appellants. 76. Learned counsel submits further that the prosecution’s failure to call the alleged 11/14

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informer was fatal to their case and according to them, this alleged informer was Lucas who had a scheme to entrap Francis but when Francis slipped through his snare, he entrapped the unsuspecting appellants. 77. I have found above that the conduct of the appellants in the matter was not as innocent as they wish to present it. If their story of how they came to have the pangolin is to be believed, then they became part and parcel of the web involved int dealing with it and at the point of arrest, they had taken possession of it. 78. The KWS officers indeed said that they relied on an informer to arrest the appellants. The failure to call the informer was not per se fatal to the prosecution’s case where as was the case, there was sufficient evidence to convict the appellants. Having been found redhanded with the pangolin, there was no need to determine how they had come by it, in which case the informer would have been required to testify. Indeed, the Court of Appeal in the case of Bakari Rashid v Republic [2016] KECA 692 (KLR) refused to fault the prosecution for failure to produce police informers as witnesses, instead stating that: “Police officers and crime-busters, most of the time use informers to gather information regarding crime. The informers are normally secretive as they go about their business and to open them up by calling them as witnesses in open court would certainly blow up their cover, compromise them and expose them to danger. That will defeat the very purpose for which they exist. That is why they are never called or are rarely called as witnesses.” 79. I am bound to follow this decision and find that the failure to call the informant in this case was not fatal to the prosecution’s case. 80. Finally, learned counsel submits that the learned magistrate failed to exercise her discretion in sentencing correctly in imposing the minimum sentence. That she ought to have been guided by the case of Wachira & 12 others v Republic & 2 others [2022] KEHC 12795 (KLR)where the High Court issued declarations and orders regarding that minimum mandatory sentences under the Sexual Offences Act were unconstitutional. 81. Learned counsel’s submission that minimum sentences have been declared unconstitutional by the Court of Appeal has been overtaken by events in view of the recent Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that minimum sentences are not unconstitutional. 82. I note that the appellants were sentenced to pay various fines on each of the charges with default sentences of imprisonment. However, the sentences of imprisonment in default of payment of fine imposed by the learned trial magistrate in counts 1 and 2 do not accord with section 28(2) of the Penal Code (Cap. 63) Laws of Kenya which provides as follows: “2. In the absence of express provisions in any written law relating thereto, the term of imprisonment or detention under the Detention Camps Act (Repealed) ordered by a court in respect of the non-payment of any sum adjudged to be paid for costs under section 32 or compensation under section 31 or in respect of the non-payment of a fine or of any sum 12/14

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adjudged to be paid under the provisions of any written law shall be such term as in the opinion of the court will satisfy the justice of the case, but shall not exceed in any such case the maximum fixed by the following scale— Amount Maximum period Not exceeding Sh. 500 14 days Exceeding Sh. 500 but not exceeding Sh. 2,500 1 month Exceeding Sh. 2,500 but not exceeding Sh. 15,000 3 months Exceeding Sh. 15,000 but not exceeding Sh. 50,000 6 months Exceeding Sh. 50,000 12 months 3. The imprisonment or detention which is imposed in default of payment of a fine shall terminate whenever the fine is either paid or levied by process of law.” 83. From the foregoing provision, it is apparent that for the first and the second counts the learned trial magistrate imposed a default sentence beyond what is prescribed by the law. 84. For the first count, since the fine was KShs 3,000,000/= the maximum default term is 12 months’ imprisonment which the learned trial magistrate ought to have imposed. She was in error to impose a higher term of imprisonment of five years. The term of five years’ imprisonment provided for under that section is an alternative to the sentence of fine or in appropriate cases, both may be imposed. It is not the default term of imprisonment for failure to pay the fine. The default term is found under section 28 of the PC as set out above. 85. For the first count, to the extent that the sentence of fine of KShs 3,000,000/= imposed by the learned magistrate is a minimum as provided for under the Act, in terms that “... commits an offence and shall be liable upon conviction to a fine of not less than three million shillings ...” the sentence of fine of KShs 3 million shillings was legal and therefore not excessive and harsh as contended by the appellants. The learned trial magistrate had no discretion to pass a lesser sentence. 86. However, since the default sentence of five years’ imprisonment for count 1 was not correct, it follows that the same has to be and is hereby set aside and substituted with a term of 12 months’ imprisonment. Therefore, the sentence under count 1 should read a fine of KShs 3,000,000/= in default to serve 12 months’ imprisonment. 87. Similarly, for count 2 against the 1st appellant, under section 28 of the Penal Code the maximum default term of imprisonment for failure to pay a fine of KShs 10,000/= is 3 months’ imprisonment. It follows that the default sentence of six months’ imprisonment for count 2 was not correct. The same is hereby set aside and substituted with a term of 3 months’ imprisonment. Therefore, the sentence under count 2 should read a fine of KShs 10,000/= in default to serve 3 months’ imprisonment. 88. The default sentence for the third count against the 1st appellant was correctly imposed and the same remains. 89. The trial court ordered that the sentences shall run concurrently. That was not correct because default sentences should run consecutively and not concurrently as provided for in 13/14

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the proviso to section 37 of the Penal Code that: “... Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under subparagraph (i) of paragraph (c) of subsection (1) of section 28 or of any part thereof.” 90. Therefore, that part of the sentence providing that the sentences shall run concurrently is set aside and substituted with an order that the sentences shall run consecutively. 91. The appellants were sentenced on 12th September 2024. In default of payment of the fine, the 2nd appellant who had only one sentence against him has thus since completed his default sentence of 12 months’ imprisonment. He was supposed to have been released on or about 11th September 2025. If he is still in custody, he should be released forthwith unless otherwise lawfully held. 92. The cumulative default sentence for the 1st appellant, Jimmy Nyawa Mwamose was supposed to be seventeen months’ imprisonment from the date of conviction. His period of period of imprisonment in default of payment of the fine should be calculated accordingly. 93. The upshot of the above findings is that, other than the correction on the aspect of default sentences which have been accordingly altered, I find that the appeal has no merit and the same is dismissed. 94. Orders accordingly. ANDAYI W. FRANCIS JUDGE Dated, signed and delivered in open court at Kwale this 10th day of April 2026 in the presence of: The appellants in person from Kwale prison. Jumbale counsel for the appellants. Mr. Orwa holding brief for Ms Vallerie for the respondent. Ummu court assistant. SIGNED BY/FOR: □ TH E J U D I C I A R Y O F K E N Y A ★ HON. JUSTICE ANDAYI W.F. Kwale High Court High Court Div Date: 2026-04-12 07:48:17 14/14

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