Kioko v. R. Crim. App. 73-A-71; 17/7/71; Bramble J.

Kioko v. R. Crim. App. 73-A-71; 17/7/71; Bramble J.

The appellant was convicted of being in unlawful possession of Government Trophies c/ss 49 and 53 of the Fauna Conservation Ordinance, obtaining a certificate by false pretences c/s 309 Penal Code and uttering an exhausted document c/s 343 Penal Code. The appellant admitted possession of certain Certificates of Ownership in respect of animal skins and stated that he had legally bought the skins from one David Kasivo Kiamba of Emali, Kenya. Appellant has possession of Kenya Export Permits stamped with a rubber stamp and showing David  Kasivo Kiamba of P. O. Box Emali as a seller of the skins and the appellant’s business “Zebra Craft and Carvings, Arusha”, as the buyer. Evidence was tendered by Murithi, an Investigations Officer with the Game department in Nairobi, there is no trophy dealer registered in Kenya by the name of David Kasio Kiamba, and that in the course of his duty he had gone to Emali several times but had never met a dealer known by that name, and that the people he had contacted in the area did not know that man. Francis Sabuni, a C. I. D. officer in Arusha testified that on 17/6/70 he went to Emali Kenya and contacted the local headman and the Game Warden of the area; both of them told him that they did not know a person of hat name. Henry Mulundi, the licensing officer at Nairobi in February 1969 to May 1970 testified that he never came across the name of David Kasivo Kiaqmba in the course of his duties. From this evidence, the trial magistrate found that David Kasivo Kiamba did not exist and convicted the appellant.

            Held: (1) “It is clear that all the evidence as to the non –existence of the Man Kiamba was hearsay. The witness Murithi (PW.2) said that several people told him that they did not know Kiamba to be living at Emali and the headman and Game Warden told he investigating officer the same thin. I do not see why these persons were not called to speak of their own knowledge and permit the court to draw its own conclusions. In the 1970 treason trial of R. v. Gray Mattaka and Others Georges, C. J. observed that in Tanzania the law as to admission of hearsay evidence was somewhat different from the law in England. Indeed section 34 of the Evidence Act, 1967 specifies eight cases in which hearsay evidence written or oral are admissible to prove relevant facts but only “where the person who made them is dead or cannot be found, or had become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable. “

The proper basis must be laid for the admission of such evidence. In the instant case no ground was laid for the admission of statements of persons, not called as witnesses, as to the non –existence of Kiamba and these statements were inadmissible and non-probative of that fact. (2) “The next point was whether David Kasivo Kiamba was a trophy dealer registered in Kenya. The evidence of the witness Marithi (P W. 2) was “From the records we have at Game Headquarters in Nairobi there is no trophy dealer known as David Kasivo Kiamba ….. I had no connections with the man with the name David Kasivo Kiamba.” This was secondary evidence of a document. Section 67 of the Evidence Act sets out the circumstances under which secondary evidence of a written document can be given and the manner in which it should be done. There is no evidence to bring the statement as to the contents of the register in Kenya within the section and it was therefore inadmissible.” (3) “The appellant relied on Certificates of ownership to show that he was in lawful possession of the skins. These certificates were issued by the competent authority in Arusha on the production to him of Export permits. The respondent’s case was that these permits were false since the person in whose name they were did not exist and so no permit could have been issued to him, but, as indicated above, there was no evidence to warrant such a conclusion.” [Citing Section 144 of the Evidence Act.] “All that it is necessary for the defence to establish is that its story is more than likely to be true. Apart from raising suspicion on the export permits the prosecution did no show that the story of the appellant was false and there was enough to create reasonable doubt.” (4) “The Game Warden fro Nairobi, PW.6 explained how an export Permit Book and some Registers. When the export permit is obtained. A licenced dealer was given an Export Permit Book and some Registers. When he exports trophies he would enter them in the Export Permit Book and the register; the Export Permit is signed by a clerk in the Licensing office and handed back to the dealer. When a trophy is exported out of Kenya there must be an entry in the Register. The buyer’s name would be at the head of the permit and the seller would put his stamp or address on it. The relevant permits were filled up according to this procedure but the Game warden could not identify the signatures of officers of his department. He did not pretend to know the signatures of all the officers and even trainees were permitted to sign. His evidence did not show that the permits were false. It was proved that the stamp of the dealer which was shown on them was ordered by the appellant and that the stamp was the same as Kiamba was reported to have used previous to most of the transactions and had lost. On this point the prosecution relied on a letter from a Document Examiner who was not called to give evidence. It was sought to draw indifference that the stamp on the export permits were placed there by the appellant himself. I am not aware of any rule of evidence to make the letter admissible. The appellant admitted that he ordered the stamp at the request of Kiamba. He stated that Kiamba collected it and the prosecution did not refute this. On the statement of a witness that only the appellant and a Mr. Tariq were

Present when the order was given, and impliedly no Kiamba, the learned trial magistrate came to the conclusion, that the stamp was made for the appellant and that he used them on the documents in question. The admissible evidence did not support this finding.” (5) “The last conviction was for uttering an Exhausted Document contrary to section 343 of the Penal Code. The particulars alleged that on the 2^nd February in Arusha District the appellant uttered as and for a subsisting and effectual document Export Permit No. 138368, the operation of which had ceased by the closing down of his business as a licensed trophy dealer in Kenya on 14/3/69. The appellant presented the Export Permit to the competent authority in Arusha and obtained a Certificate of ownership. On the face of it the Permit was in the name of David Kasivo Kiamba and he exported the trophies to the appellant. The prosecution’s case was that the book from which the permit came had been issued to one Francis Kioko in Nairobi. Again it was sought to prove this by secondary evidence of a document and no basis was laid for this. The appellant had a licence as a trophy dealer in question was dated 4^th August, 1969. The Francis Kioko in the inadmissible evidence of P W. 6 was not identified as the appellant and the learned magistrate wrongly held in my view, that the Francis Kioko to whom the Export Permit Book was issued was the appellant. The Export Permit was in the name of a dealer by the name of David Kasivo Kiamba and nothing was proved to the contrary nor was it proved that Kiamba’s licence as a dealer had expired.” (6) Convictions were based on inadmissible evidence. (7) Convictions quashed; Appeal allowed.