Republic v Mukenga (Criminal Case E586 of 2023) [2025] KEMC 98 (KLR)
The bottom line
#A Makindu court convicted a man of illegally dealing in elephant tusks, confirming that proving possession is central to Kenya's wildlife trafficking cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused person was found dealing in wildlife trophy on 28/6/2023
- 2.Whether the trophy was of an endangered species and in particular elephant tusks
- 3.If (i) and (ii) above are in the affirmative, whether the accused person had a permit
- 4.Whether the prosecution has proven its case against the accused person to the required standard
Key legal issues
#Elements of the offence of dealing in a wildlife trophy under section 92(2)
The prosecution must establish possession of the tusks, dealing in them, their endangered status, and absence of permit or exemption
The court construed section 92(2) with section 3 of the Wildlife Conservation and Management Act, which defines 'deal' broadly to include selling, transporting and possession with intent to supply. Because 'possession' is not defined in the Act, the court imported the definition in section 4 of the Penal Code, including constructive possession and joint possession with knowledge and consent.
Whether possession and dealing were proved to the required standard
Yes — possession and commercial dealing were proved beyond reasonable doubt on consistent and corroborative prosecution evidence
The arresting officers' evidence was consistent and corroborative; the chain of custody from recovery, marking (KM1–KM4), transmission to Nairobi and analysis by PW2 was clear and unbroken. The accused's defence that he was framed lacked any suggestion of grudge, demand or motive. The court applied the Woolmington principle that the burden lies on the prosecution and the Miller standard that proof need not reach certainty but must carry a high degree of probability.
Whether the tusks were of an endangered species and whether the accused had a permit
The tusks were elephant tusks of an endangered species and the accused had no permit or exemption
PW2, a Research Scientist at the Kenya National Museum, analysed the four pieces and confirmed they were elephant tusks. The Sixth Schedule lists the African elephant as an endangered species. No permit or exemption was produced, satisfying the final elements of section 92(2).
Legal principles established
#- The offence of dealing in wildlife trophy is not proven unless possession of the trophy by the accused is proven, and possession borrows the Penal Code definition
Court orders
#- 1.Finding the accused person GUILTY of the offence of Dealing in wildlife trophy of an endangered species contrary to section 92(2) of the Wildlife Conservation and Management Act and convicting him accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original criminal jurisdiction over an offence under section 92(2) of the Wildlife Conservation and Management Act
Relief refused
#Accused person's sworn defence that he was a bystander returning from the market
Court rejected the defence as not raising doubt on the prosecution case
Costs
Not applicable — criminal proceedings; no costs order made.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The offence of dealing in wildlife trophy cannot suffice unless possession of the wildlife trophy by the accused person is proven.
I find the accused person GUILTY of the offence of Dealing in wildlife trophy of an endangered species contrary to section 92(2) of the Wildlife Conservation and Management Act and proceed to convict him of the offence accordingly.
The chain of custody of the elephant tusks from recovery to the time they were produced in court is clear and unbroken.
The duty is on the prosecution to prove its case against the accused person beyond reasonable doubt.
Issues in the judgment
#The judgment notes an internal inconsistency in the Wildlife Conservation and Management Act's definition of endangered species, citing the Fourth Schedule but indicating it should be the Sixth Schedule
The judgment is a conviction only; sentencing is not recorded, and the closing text ends at the conviction with the date and signature
Recurring typographical errors ('ofience' for 'offence') throughout the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Mukenga (Criminal Case E586 of 2023) [2025] KEMC 98 (KLR)", Case Analysis (2025). Criminal Case (Makindu) — charge of Dealing in wildlife trophy contrary to section 92(2) of the Wildlife Conservation and Management Act. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/98/eng@2025-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.