Ngaza alias Maridadi v Republic (Criminal Appeal E007 of 2022) [2025] KEHC 132 (KLR) (17 January 2025) (Judgment)
Neutral citation:
[2025] KEHC 132 (KLR)
Republic of Kenya
Criminal Appeal E007 of 2022
M Thande, J
January 17, 2025
Between
Mwauchi Ngaza Alias Maridadi
Appellant
and
Republic
Respondent
(An Appeal against the conviction and sentence of Hon. S. K. Ngii SRM on 16.7.2020 in Mariakani Criminal Case No. 575 of 2019)
Judgment
1.The Appellant and one John Chisiwa Ngoma were charged and convicted of the offence of dealing in wildlife trophy of a specified endangered species without a permit or other lawful exemption contrary to Section 92(2) of the Wildlife Conservation and Management Act, 2013. The particulars of the offence are that on 30.7.19 at around 0550 hrs at Makobeni area, Rabai subcounty within Kilifi County, jointly with others not before court were found dealing in wildlife trophy namely 35 cut pieces of elephant tusks weighing 182.1 kilograms that being a trophy of a specified species under Sixth Schedule of the said Act with a street value of Kshs. 18,221,000/= without a permit from Director General Kenya Wildlife Service.
2.The Appellant has appealed against both the conviction and sentence raising 3 grounds namely that the trial Magistrate failed to that the case was poorly investigated which rendered the conviction unsafe; that the trial Magistrate failed to see that failure of the police informer to testify resulted in a miscarriage of justice; that the trial Magistrate erred in convicting the Appellant on the basis of evidence of prosecution witnesses who are all state officers and for rejecting his defence.
3.The Appeal is opposed by the Respondent vide submissions dated 17.4.23.
4.In his submissions, the Appellant did not submit on the grounds in his petition of appeal. He submitted that the time he spent in remand pending trial was not taken into account. Although the issue was not raised in the petition of appeal, this Court is mindful that the Appellant is unrepresented and may not be conversant with the legal procedural intricacies. I am thus inclined to consider the issue of the period spent in remand, duly aware that Article 159(2)(d) of the Constitution enjoins the Court to administer justice without undue regard to procedural technicalities.
5.The lower court record shows that the Appellant was arrested on 30.7.19. He remained in custody until he was convicted and sentenced on 16.7.2020.
6.Section 333(2) of the Criminal Procedure Code provides as follows:
7.The proviso to Section 333(2) of the Criminal Procedure Code requires that court while sentencing, do take into account the period an accused person has spent in custody pending trial. In the case of Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal had this to say about the said proviso:
8.Flowing from the above authority, it is clear that a trial court must specifically state that the period spent in custody by an accused person pending trial, has been taken into account when imposing sentence. As such, the imposed sentence must be is reduced proportionately by such period.
9.From the record, there is no mention by the trial court that the period that the Appellant had spent in custody pending trial, was taken into account when sentencing him. This is a serious omission on the part of the trial court, as it amounts to non-compliance with an express statutory provision.
10.In light of the foregoing, I do direct the sentence imposed upon the Appellant shall run from 30.7.19, the date of his arrest.
DATED SIGNED AND DELIVERED IN MALINDI THIS 17TH DAY OF JANUARY 2025M. THANDEJUDGE