Today’s Court Update
#9. June 13th, 2024 (Hearing): The hearing did not proceed as the court was not sitting. Hearing adjourned to September 11th, 2024,
SEEJ-AFRICA THUMBNAIL:
- On February 14th, 2023, KWS arrested two men with 32 kg of ivory in the Kilibasi area, of Kwale County, on the south eastern side of Tsavo West National Park.
- Joseph Wambua Mutua and Wambua Mutavi Nduti were arraigned in Mariakani court the following day for dealing and being in possession of the tusks.
- This is the 6th reported ivory related arrest and seizure in 2023, with KWS and police having seized 184.5 kg to date.
Presiding Magistrate and Court: Hon. M. S. Kimani – Principal Magistrate – Court 1 Previously – Hon. Nelly Chepchirchir – Principal Magistrate Previously – Hon. Olivia Koranje – Resident Magistrate | |
State Counsel: A. Fuchaka | Advocates for the Accused: Mr. Kiseu |
Accused: Joseph Wambua Mutua Wambua Mutavi Nduti | |
Charges:
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Date of Arrest: 2023-02-14 | Date of Arraignment: 2023-02-15 |
Location of Arrest: Kilibasi area, Kwale County | Contraband Seized: 32 kg (8 pieces) |
Proceedings
#8. February 1st, 2024 (Hearing):The hearing did not proceed as the Defence Counsel was indisposed; Mr. Kiseu had written to the prosecution vide letter dated 31st January, 2024, that he was indisposed and was seeking an adjournment. The prosecutor was not pleased with this development as one of her witnesses was the expert from the National Museum of Kenya, a witness whose attendance was a challenge to re-schedule. However, the adjournment was granted and a further hearing date has been set for June 13th, 2024.
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#7. November 16th, 2023 (Hearing): The matter was coming up for hearing. The prosecution was ready to proceed with one witness, PW2. The defence was also ready to proceed with the hearing.
PW2 took the stand and introduced himself as a KWS officer stationed in Mombasa and attached to the security and wildlife crime unit. He went ahead to narrate that on February 14th, 2023 at 1500 hrs while on duty at the KWS Mombasa Headquarters, he received a call from one of his colleagues to meet at his office which he did. He found two other officers at the office. One of the officers briefed them that he had received information that at Kilibasi there were two unidentified people in possession of eight elephant tusks and were looking for potential buyers. The tusks were to be ferried from Kilibasi area to Kilibasi Town.
A team was formed, comprising of a team leader, a driver, an arresting officer and PW2 who would be backup and also arresting officer.
Around 1930hrs, they boarded an unmarked service vehicle from Mombasa to Kilibasi area. On their way at Maili Kubwa, they took a left turn to Kilbasi. At Kilibasi Centre, they laid an ambush at around 2230 hrs.
At around 2320 hrs, a motorcycle started approaching them. The team leader stepped out of their vehicle and stopped the motorcycle and the rest of the arresting team joined. Two people were on the motorcycle and they were ferrying a luggage. The arresting team introduced themselves as KWS officers by showing their service cards and requested to carry out a search of luggage. The two people agreed to the search and offloaded the luggage.
The luggage was carried in two sacks, a green one and a white one. The sacks had eight elephant tusks. The team leader inquired whether they had a permit from the Director General KWS, to which they responded they did not; as such they were arrested. At the scene, photographs of the motorcycle, the sacks and the eight elephant tusks were taken.
PW2 prepared an inventory of the items seized from the suspects. PW2 read out the inventory to the arresting team and the suspects and they all signed.
They all boarded the vehicle and proceeded to Taru Police Station. The tusks were weighed at the station in the presence of the arresting team and the suspects. The total weight was 32 kgs. PW2 prepared a weighing certificate which was signed by the arresting team.
PW2 prepared a chain of custody form which was signed by the Team leader on February 15th, 2023 at 0200hrs and handed over to him for movement of exhibits to court. PW2 the interviewed the suspects and recorded their statements together with his. He also prepared an exhibit memo form to the government analyst at the National Museums of Kenya and on February 20th, 2023 took the exhibits to the experts and they were received on the same day.
Analysis was carried out on the eight tusks and it was established that indeed they were elephant tusks and a report was prepared.
The motorbike that was being used by the suspects had no registration number at the time of the arrest, it only had a frame number. PW2 took the frame number and visited the NTSA offices to establish the owner but unfortunately, there were no records against the frame number. At the time of the hearing, the motorbike was at Taru Police Station awaiting further orders.
PW2 was able to identify the two suspects that were arrested as the two accused before the court. It was noted they had flashlights which they used to illuminate light on the faces of the suspects.
Cross-examination was done by Mr. Kiseu, counsel on record for the two accused.
Counsel: where exactly did you lay the ambush?
PW2: At Kilibasi-Kaseve road, 300 meteres from Kilibasi centre at 223o hrs and the motorbike approached us at 2320 hrs.
Counsel: At what point did you identify the accused?
PW2: When we illuminated light from our flashlights on the suspects.
Counsel: Does your statement indicate you used a flashlight?
PW2: No
Counsel: Was there a moon to provide lighting?
PW2: No
Counsel: What did you find at the site?
PW2: A motorbike, two nylon sacks, a green and a white one and eight elephant tusks. The green sack was on the outside while the white one had been inserted in the green one.
Counsel: Did you take photographs of the motorbike?
PW2: Yes, I did, they were produced in court by PW1
Counsel: Who is the owner of the motorcycle?
PW2: As earlier on indicated the motorbike did not have a registration number and the frame number that I took to NTSA did not bring up any results.
Counsel: Did the accused sign the inventory report voluntarily?
PW2: Yes, they signed voluntarily and so did the arresting team.
Counsel: Where was the inventory prepared?
PW2: The inventory was done at the scene where the arrest was done.
Counsel: Did you read the particulars of the inventory to the accused?
PW2: Yes, I did.
Counsel: Where did you have the weighing certificate prepared?
PW2: At Taru Police Station
Counsel: Did you indicate in your statement when the exhibits were seized?
PW2: No.
Counsel: When was the Exhibit memo prepared?
PW2: I prepared it on February 17th, 2023 and it was received by the government analyst on 20th February, 2023.
Counsel: That infers that the two accused were charged in court on 15th February, 2023 before the exhibit report was ready. Why?
PW2: Preparation of the report was done under the guidance of the ODPP.
Counsel: When did you collect the exhibit report?
PW2: On February 21st, 2023.
Counsel: When did you interrogate the accused?
PW2: On February 15th, 2023 at around 0200 hrs,
Counsel: Did you prepare the investigation report?
PW 2: Yes, the inventory report.
Counsel: Does it indicate whether the accused were interrogated?
PW2: No, it does not.
Counsel: So, did you really carry out an investigation?
PW2: Yes, I did.
Counsel: In the steps that you took. Did you indicate that the two accused signed?
PW2: It was among the steps that we took.
Counsel: In all the photographs that were taken, where do the accused appear?
PW2: Nowhere in those photos.
Counsel: I put it to you that the investigations carried out were malicious to the accused.
PW2: What I have said is true to the best of my knowledge.
Re-examination by the prosecution
Prosecution: Confirm that you saw the accused at the time of the arrest.
PW2: I did.
Prosecution: Confirm all efforts to trace the owner of the motorbike were futile.
PW2: NTSA had no records of the motorbike.
The matter was adjourned and a hearing date set to February 1st, 2024.
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#6. September 7th, 2023 (Hearing): Hon Olivia Koranje was today presiding as Hon. Nelly Chepchirchir is on transfer. The hearing did not take place. Case adjourned to November 16th for hearing.
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#5. June 12th, 2023 (Hearing): Today’s hearing proceeded with one witness from KWS.
KWS officer, PW#1 told Mariakani magistrate Hon. N. Chepchirchir they received an intelligence information on 14th February 2023 at around 4 pm of two people planning to sell ivory at the Kilibasi market center in Taru, Kwale County.
They left Mombasa around 7:30 pm with two other officers arriving at the Kibabisi market center around 10 pm. They laid an ambush a few meters away from the Kibabisi market center.
Within an hour they saw a motorbike coming in their direction.
They flanked the motorbike to stop, identifying themselves as KWS officers. Upon checking what the two were carrying on a motorbike, they could see they were carrying elephant tusks because the tusks were protruding from the sack.
They asked them if they had a permit and they said No. We arrested and photographed what they were carrying at the scene including a motorbike.
I wrote the report which was signed by all 3 KWS officers and the two suspects. We escorted the suspect to the Taru police station.
Our statements were recorded including the suspect.
The eight pieces of ivory were weighed by the police and it was discovered the ivory was 32kg with a street value of Ksh 3.2 million.
An inventory was made and signed.
During re-examination by the suspect’s lawyer Mr Jimmy Kiseu, the witness was asked why in all 5 photos he took at the scene of the crime had the faces of two suspects did not appear. He answered it was not necessary.
The witness also could not tell the court which of the accused was riding the motorbike as it was night.
The case will proceed on September 7th.
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#4. March 24th, 2023 (Hearing):This hearing did not take place but a mention was done virtually with the accused while in prison over their bond issues (both still on remand). Hearing date set for June 12th.
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#3. March 8th, 2023 (Pre-trial mention): No prosecutor this morning, now in the court of SRM Nelly Adalo. Hearing date has been set for March 24th, 2023.
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#2.March 1st, 2023 (Pre-trial mention): Scheduled for mention, this file is being moved to court 1 that was not sitting today. It has been adjourned to that court for March 8th.
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#1. February 15th, 2023 (Arraignment): Both accused were charged with Dealing and Possession of wildlife trophies. They have been released on providing a KES 500,000 bond. This was heard in the court of Hon. Olivia Koranje – Resident Magistrate Court 2.
Two men charged with dealing in wildlife trophies
The wildlife trophies were said to be worth Sh3.2 million.
A Mariakani court has charged two men for dealing in wildlife trophy of an endangered species.
The Office of the Director of Public Prosecutions said the wildlife trophies were said to be worth Sh3.2 million.
The two were charged on Wednesday for being in possession of the wildlife trophies without a permit contrary to Section 92(2) and 92 (4) of the Wildlife Conservation Act.
Joseph Wambua Mutua and Wambua Mutavi Nduti were allegedly found dealing in eight pieces of elephant tusk weighing 32 Kg.
“The elephant tusks were concealed in a white and green nylon sacked carried on a motorcycle being trophies of species that is endangered without a permit or other lawful exemption,” the ODPP said.
The ODPP said the offences were allegedly committed on February 14, 2023, at Kilibasi area Samburu subcounty within Kwale.
The accused persons pleaded not guilty before resident magistrate Olivia Koranje.
Koranje granted the suspects a Sh500,000 bond each with one personal surety.
