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4. On 07.09.2016, he was arrested and brought to court to answer to the charges herein. On that day he denied before me that on 21.08.2016 at Lariak Forest within Laikipia County, he was found having cut 2 pieces of indigenous tree namely Onea Africana (Mutamaywa) valued at Ksh. 2,000/= without a permit from the Director of Kenya Forest Service. I on the same day released him on a cash bail of Kshs. 1000/=. He has therefore been out on the bail throughout the duration of the trial herein. He was represented by Mr. Mbugua Advocate. 5. The prosecution was led by Ms. Chelangat, prosecution counsel, instructed by the Director of Public Prosecutions, who, by virtue of Article 157(6) of the Constitution, exercises state powers of prosecution within the Republic of Kenya. 6. Hearing of the prosecution's case commenced and closed on 15.11.2016, during the judiciary children service week. On 17.11.2016, I called upon the defendant herein to make his defence. The court was however informed he was to remain silent in his defence. Learned counsel then filed an authority to back up his submissions at the close of the prosecution's case. 7. All the other procedural issues and adjournments have all been well captured in the record of proceedings herein and do not therefore require any additional duplication herein. Substantive Facts of the Case 8. The facts of this case are basically as per the introduction hereinabove. The prosecution witnesses all insisted that the defendant herein was found within the borders and boundaries of Lariak Forest and not anywhere else. The pieces of the indigenous trees that he was found while cutting together with the panga that he was using were produced by PW3, No. 85xxx PC John Mburu, as PExh. Nos 1 and 2 respectively. Issus, Burden and Standard of Proof 9. Going by the issues raised in the submissions herein, the main issue herein is whether the defendant herein was found in a state, provisional or local authority forest (since renamed county forests). The other issue is whether he was found having cut the trees alleged in the forest? The burden of proving the same lies with the prosecution, in the first instance, and the standard of proof on the part of the prosecution is beyond reasonable doubt [1]. 10. However, going by the provisions of section 50(1)(b) of the Forests Act, 2005, the burden of proof in this instance may also shift to the defendant to explain how he came to be in possession of the suspected forest produce, once it is proved to the standard of beyond reasonable doubt that he was found with the same. The said section provides as follows: 50. Powers of Oficers (1) A forest oficer may—... (b) 11. require any person found within or without a State, local authority or provisional forest who has in his possession any forest produce suspected to have been taken from such forest, to give an account of the manner in which he became possessed thereof, and, where the account given is not satisfactory, arrest and take such person before a magistrate. In such instances where the defendant is required to give an explanation, the standard of proof is on a balance of probability. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/125/eng@2017-01-10 2

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Determination 12. There is no evidence to make me doubt that the defendant herein was found while cutting down the indigenous tree whose pieces were produced as PExh. No. 1 herein. The panga that he was using was also produced as PExh. No. 2. I find no material contradiction in the evidence of the forest rangers who found him red-handed while cutting the trees to be used to prepare charcoal. The main issue that came from the cross-examination and the submissions herein is whether the defendant was found in a forest. 13. With due respect to he learned counsel to the defendant, and by virtue of the provisions of section 50(1) (b) of the Forests Act, the defendant herein was supposed to ofier a satisfactory explanation to the forest oficers or to the court on how he came to be in possession of the suspected forest produce. Whether he was found in a forest or not, provided that he was found in possession of a suspected forest produce as has been proved to the required standard by the unchallenged and consistent evidence herein, he was supposed to at least ofier an explanation of how he came to be in possession of the produce. 14. According to the oficers who found him, he was inside Lariak Forest. They are government oficers and one of them PW2, confirmed on oath that he is stationed at Lariak Forest. They insisted that they found the defendant while cutting the trees within Lariak Forest. Their evidence was not challenged in any material way and I therefore have no reason to disbelieve them. 15. Going by the provisions of section 50(1)(b) of the Forests Act, I did call upon the defendant herein to make his defence. I expected him to ofier a defence if he had any. Such defence could include his belief that he was not in a state forest, or that he was in a private land etc. He however opted to remain silent and ofiered no explanation. The defendant in Stephen Kamiri Kimarua and Anor vrs Republic [2015] eKLR[2] did in fact ofier an explanation in defence when he stated that he cut the trees in a private land, and not a state, provisional or local authority forest as alleged. It is when such an explanation has been ofiered, and to the satisfaction of the court, that the prosecution are required by law to counter the explanation by way of evidence. Otherwise the provisions of section 50(1)(b) of the Forests Act, 2005, it being a more recent, supersedes those in the Evidence Act. It should also be noted that the requirement that the prosecution bears the burden of proof is not constitutional one. In some instances, such as the present one, some statutes may impose some burden on behalf of the defendant to ofier an explanation. 16. In Stephen Kamiri Kimarua's case, supra, the Judge found that the defence raised by the appellant raised serious doubts in the prosecution's case. The Judge found as follows at page 6 of the decision: " The defence ofiered by the appellant raised serious doubts on the prosecution case. He said that he was cutting trees on private land." He then went ahead to discuss the laws relating to forests established on private lands. In this case, I find no such defence raised by the defendant herein. He did not attempt to explain that he was found with the trees which he got from a private forest or land. He remained silent in his defence. This makes the prosecution's case and evidence, whether oral or otherwise, unchallenged. It not a requirement that such evidence must be documentary. Unchallenged oral evidence is suficient and I do therefore find the prosecution's case to have been proved to the required standard. I have no reason to doubt the same. 17. In the circumstances, and without any explanation to the contrary, and further upon applying the provisions of section 50(1)(b) of the Forests Act, 2005, I find that the forest rangers herein were justified in arresting the defendant herein and presenting him before this curt with the charges. I do therefore find him guilty as charged. Their evidence that they found him within Lariak Forest remains unchallenged. They found him while cutting down trees within the forest. Unlike the appellant in https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/125/eng@2017-01-10 3

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Stephen Kamiri Kimarua's case, supra, he has not explained whether he believed that the land was a private land or otherwise. Conclusion 18. I do find that the prosecution has been able to prove its case against the defendant herein beyond reasonable doubt as the same remains unchallenged. I do therefore find the defendant herein guilty of the ofience of Cutting Down Forest Trees contrary to section 52(1)(a) as reads with section 52(2) of the Forests Act No. 7 of 2005. 19. I shall hereinafter receive the material and evidence relevant to sentencing. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 10TH DAY OF JANUARY, 2017. ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Court interpreter: Tiktik. Prosecution Counsel: Chelangat. Defence Counsel: N/A. KFS Oficers: N/A. [1] See Stephen Kamiri Kimarua And Anor. vrs Republic [2015] eKLR. [2] Submitted by the Learned Counsel for the defendant. https://new.kenyalaw.org/akn/ke/judgment/kemc/2017/125/eng@2017-01-10 4

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