Republic v Mukoondo (Criminal Case 1212 of 2015) [2016] KEMC 5 (KLR)

The Facts 5. PW1, KWS 8xxx Ranger Juma Malembe, informed the court that on the material day, he was on patrol within Posta area, while with PW2, KWS 10xxx Adan Daudi, when one of their informers described to them a person who herds cattle for the Member of Parliament (MP) for Laikipia North, who was being suspected to be possessing elephant ivories. The informer described to him the suspect's place. They immediately decided to go for the suspect at his place. They were with PW2, KWS 10xxx Adan Daudi, and their driver. 6. According to PW1, KWS 8xxx Ranger Juma Malembe, on arrival at the described place, they went to a temporary nylon house (like a greenhouse) wherein they found the defendant herein lying on a mattress. They then introduced themselves and their mission. That they then conducted a search therein and found a sisal bag hidden at a corner in the house next to where the defendant was lying. That on checking inside the bag, they found the 4 pieces of ivory being alleged herein. That the defendant herein confirmed to them that the house belongs to him and that he stays there. 7. According to PW2, KWS 10xxx Adan Daudi, upon reaching the described homestead, they knocked at one of the huts therein that had been described to them. That the homestead had 4 huts. That a tall Samburu emerged from the hut (a small manyatta) in response to the knock. That they asked for his name. That he introduced himself as the defendant herein. That they then introduced themselves and their mission there. That they then proceeded to conduct a search in the presence of the defendant. They then told him to lift a mattress inside the small hut. That under the mattress, they saw some tea leaves and an old sack made of sisal. They then instructed the defendant to open it. Inside it they recovered the 4 pieces of ivory herein. They then requested him for the permit to possess the ivory pieces which he lacked. 8. The defendant was then arrested and escorted to Rumuruti Police Station together with the 4 pieces and the sisal bag for further investigations. At the police station, they were received by PW3, No. 77xxx PC Reynard Omboto who confirmed that in the course of the investigations, he also visited the manyatta at Posta area. He then escorted the pieces of ivory to the National Museums of Kenya for analysis. That the report of the analysis came back with an opinion that the pieces were trophies from an elephant. He produced the sisal bag, as PExh. No. 1, the 4 pieces of ivory as PExh. Nos 2A, B, C, and D; and the report from the analyst dated 11.04.2016 as PExh. No.3. That in the course of his investigations, he interrogated the witnesses who included the neighbours of the defendant, who informed him that the defendant was found while asleep in his hut. That the neighbours, however, feared to come and testify herein as witnesses. The Submissions 9. After the close of the prosecution's case, there were brief submissions by the defendant. The prosecution had no reply. 10. The defendant mainly submitted that no other witness who assisted in the investigations was called by the prosecution. That from the evidence of the prosecution, he is unable to comprehend whether what he is alleged to have been found with were elephant teeth, or ivories. That they could have involved the area chief or village elder to confirm that the place belongs to him. The Issues, Burden and Standard of Proof 11. It is trite law that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt. The main issue at this stage is whether the prosecution, in discharging this burden, has https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/5/eng@2016-11-08 2

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established a prima facie case that requires me to call upon the defendants herein to make their defence as required by section 211 of the Criminal Procedure Code. 12. The case of Republic v Kennedy Otieno & 6 Others (1998) eKLR, gave a recent and simpler explanation of what constitutes a prima facie case. The High Court held that it is a case where there is suficient evidence upon which the court would convict the accused if no explanation is given. 13. The main issue herein is whether the defendant herein was in possession of the ivory pieces as alleged herein. The Determination 14. The main issue is that of possession. Possession to me involves having a degree of physical control over the elephant tusks, with the person in control knowing that the elephant tusks are in his control. That was the position in Warner v Metropolitan Police Commissioner [1969] AC 256 and Republic v Chatwood [1980] 1 All ER 567. The issue of possession must therefore involve knowledge that the said item is in one's possession. The direct evidence to be considered at this stage is that in PW1 and PW2. They are the KWS Oficers who arrested the defendant herein with the present allegations. The 2 witnesses gave a contradictory account of where the items herein were found. 15. Whereas PW1, an experienced KWS Oficer, stated that they found the same in a greenhouse like structure where the defendant was resting; PW2, another KWS Oficer, stated that they found the items in a manyatta which was opened for them by the defendant herein. According to PW1, the ivory pieces were in a sisal bag, PExh No. 1, which was hidden at a corner next to where the defendant was resting. PW2, on the other hand, stated that the PExh. No. 1, which had the ivory pieces, was found hidden together with some tea leaves, under a mattress inside the small manyatta. 16. These Oficers alleges to have been together while conducting the search and making the recoveries herein. For this court to make a determination to the required standard of beyond reasonable doubt on whether the defendant herein was in possession, actual or constructive, of the ivory pieces herein, and with his knowledge, then the evidence of where the items were found must be consistent. If the ivory was under the mattress, covered by some leaves, and not in a corner of the said house, whether it was a greenhouse structure or a small manyatta, the evidence of these must be clear for the defendant to be able to make a reasonable defence if at all he had the knowledge that the items were in his possession or not. 17. With the inconsistencies herein, I am left to wonder whether the witnesses herein were together at the time of the recoveries alleged herein or not. If they were not together, then their evidence herein is not true and therefore unreliable. If each of them is speaking the truth, then it appears that the house or structure that PW1 went and made the recovery herein is not the manyatta that PW2 went to and made his recovery. The person that PW1 found while lying on a mattress in an ambush-like operation inside a greenhouse-like structure is not the same person who opened for PW2 after a simple knock and emerged from a manyatta in a homestead with several other manyattas. The ivory pieces that PW1 recovered while hidden at a corner in a greenhouse structure is also not the same as the ivory pieces that PW2 recovered from under the mattress in a manyatta. The question is who to believe? Should I take it that the defendant herein is the one who was ambushed by PW1 while in the greenhouse structure, or the one who opened for PW2 in a manyatta. What about the ivory pieces herein? Are they those that were recovered by PW1 while hidden at a corner in the greenhouse structure or those that were recovered by PW2 while under a mattress? The identity of the defendant herein and the exhibits herein is therefore in doubt. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/5/eng@2016-11-08 3

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18. I do therefore find the inconsistency on where and how the ivory pieces herein were recovered to be so material that it will greatly prejudice the defendant in his defence, should he be called upon to make his defence of the allegations herein. The questions could still be asked from a difierent angle. Was the defendant lying inside a greenhouse structure belonging to him where the ivory pieces herein were found? Did he emerge from a small manyatta where the items herein were found? Between the greenhouse structure and the small manyatta, which was his house where he is alleged to have possessed the ivory pieces alleged herein? Where was he possessing them? Were they hidden? If yes, then where? Under the mattress in a small manyatta while covered with tea leaves, or in a greenhouse structure at a corner next to a mattress where he was lying? 19. I do believe that with all the above questions and doubts, the defendant may not be able to adequately defend himself. He did confirm in his submissions that even after the close of the prosecution's case and evidence he still does not fully understand what allegations are facing him herein. He is entitled to remain silent because the prosecution's case appears confused. This is a case that should not proceed beyond the prosecution's inconsistent evidence. The prosecution has thus been unable to prove its case to the required standard of beyond reasonable doubt at this stage. The High Court in Republic v Kennedy Otieno & 6 Others, supra, addressed the point as follows: It must be remembered that at the close of prosecution case, an accused has a right to keep silent in his defence. An accused person is brought to court by the prosecution. It is upon the prosecution to prove a case against an accused person beyond reasonable doubt. An accused person is under no obligation to prove his innocence. The burden of proving his guilt lies on the prosecution. 20. Guided by the above decision, I do hereby find that no prima facie case has been disclosed to warrant the defendants herein to be called upon to make their defence herein. 21. The upshot is that I do hereby enter a finding of not guilty against the defendants herein. Final Disposal Orders 22. I do therefore find no prima facie case disclosed herein and pursuant to the provisions of section 210 of the Criminal Procedure Code, I do hereby dismiss the charges against the defendant herein and consequently do hereby acquit all of the ofience of Being in Possession of Wildlife Trophy contrary to section 95 of WCMA as charged herein. He should therefore be immediately set at liberty unless otherwise lawfully held. 23. The ivory pieces herein, PExh. No. 2A, B, C, and D, be immediately released to the Oficer in charge of Rumuruti Wildlife Station, to be dealt with in accordance with the law. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 08TH DAY OF NOVEMBER , 2016. ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik. Prosecutor: Chelangat. Defendant: Present. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/5/eng@2016-11-08 4

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KWS Oficer or any interested party/ies: Absent. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/5/eng@2016-11-08 5

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