Sentencing Date: 2024-12-19 |
Offence Date: 2022-02-05 |
Magistrate(s): Principal Magistrate Lillian Lewa |
Court: Kwale |
Trial Duration: 34 Months – 57 sittings |
Arrest Details: KWS acting on intelligence set up an ambush and arrested the two accused while they were ferrying 91 kg of ivory on a motorcycle. |
Link: |
Conclusion: James Malembi Mwatsahu + Juma Mwanza Haranga both acquitted |
SEEJ-AFRICA THUMBNAIL:
- On February 5th, 2022, KWS officers arrested two men who were ferrying 91 kg of ivory on a motorcycle.
- The ivory was in 26 pieces and contained in two sisal bags.
- The location of the arrest was in close proximity to Shimba Hills National Reserve. The elephant numbers in the park have been quietly depleting in recent years.
- There have been at least 10 ivory seizures with arrests within the Shimba Hills area in the last 5 years.
Presiding Magistrate and Court: Hon. Lillian Lewa – Principal Magistrate Court 1 | |
State Counsel: | Accused Advocate: Not represented |
Accused: James Malembi Mwatsahu Juma Mwanza Haranga | |
Charges:
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Date of Arrest: 2022-02-05 | Date of Arraignment: 2022-02-07 |
Location of Arrest: Busa area, Kinango sub-county | Contraband Seized: 91 kg (26 pcs) |
PROCEEDINGS
#52. September 30th, 2024 (Defence Hearing): The court has now given a mention date of October 24th for the filing of final submissions.
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#41. June 11th, 2024 (Ruling): The ruling was not given and the matter was was adjourned to a new ruling date of July 2nd.
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#40. April 22nd, 2024 (Mention): The court set a ruling date of June 11th, 2024 as to whether the defence has a case to answer.
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#39. March 26th, 2024 (Mention): The court set another mention date of April 22nd – presumed typed proceedings not yet ready. (SEEJ-AFRICA not in attendance)
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#38. March 1st, 2024 (Hearing): This matter came up for hearing of the prosecution case. The day began with a continued cross examination of PW6, the designated IO of the National Police Service who had testified the previous day. He had no first hand knowledge of the arrest and seizure incident.
Continued cross-examination by the 1st Accused
A1: How many luggages were at the crime scene?
PW6: There were two luggage, each luggage was in two sacks
A1: Are you mandated to carry out forensic analysis?
PW6: No. there are specialized personnel mandated to carry out that task.
A1: Does the first accused have any previous criminal record?
PW6: No
A1: Are there any photographs before court showing the accused persons, luggage and motorcycle at the crime scene?
PW6: Yes. They were produced as evidence in this court
Cross-examination by the 2nd accused
A2: Were you at the crime scene?
PW6: No
A2: At the crime scene location, is there a sharp bend corner?
PW6: Yes, at Kafichoni junction
A2: Did you follow up to establish the owner of the motorcycle?
PW6: Yes
A2: Did you meet the owner of the said motorcycle?
PW6: Yes, he came to the station and claimed that you had hired the motorcycle to transport church equipment.
A2: Did you arrest him or call him as a witness in this case?
PW6: No
A2: Among the accused persons, who was taken to the station first?
PW6: I was not at the crime scene or at the station when you were arrested.
Re-examination
Prosecution: In the covering report, what is indicated as the motorcycle registration number?
PW6: KMFV 706V and amended to read KMFV706U
Prosecution: Why the amendment?
PW6: It was an erroneous.
Prosecution: In the photograph taken of the motorcycle, what was the registration number?
PW6: KMFV 706U
Prosecution: Which registration number did you submit to NTSA while carrying out a search on the ownership of the motorcycle?
PW6: KMFV 706U
Prosecution: What did the police use to establish where the accused persons would be?
PW6: Intelligence report to KWS officers
Prosecution: Were you aware of the intelligence?
PW6: No
Prosecution: Were you at the crime scene?
PW6: No, I was not.
Prosecution: Who arrested the accuseds at the crime scene?
PW6: KWS officers
Prosecution: In the investigation diary, who received the 26 wildlife trophies and the motorcycle?
PW6: Corporal Obare received them and then handed them over to Corporal Hamisi Poda from KWS for safe custody.
Prosecution: What does the statement by the Investigating Officer indicate about the whereabouts of the motorcycle?
PW6: The motorcycle was retained at the police station.
Prosecution: Where was the panga found?
PW6: On the 2nd accused
Prosecution: Were the accused persons arrested together or separately?
PW6: Together
Prosecution: Who were found in possession of the exhibits?
PW6: The two accused persons
Prosecution: How many luggage were the accused found with?
PW6: Two luggage
At this point, the prosecution closed their case.
The 1st and 2nd accused indicated they would be filing their written submissions. The prosecution on the other hand indicated they would not file any submissions.
Court said that the proceedings shall be typed.
Mention shall be on March 26th, 2024 to confirm whether the proceedings are typed.
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#37. February 29th, 2024 (Hearing): This matter came up for hearing and the prosecution called their last witness, Police Constable Fredrick, of the National Police Service.
P.C. Fredrick was the designated IO (Investigating Officer ) and replaced P.C. Naimodi who had since been transferred. P.C. Fredrick’s testimony was, in fact, hearsay evidence .
Examination-in-chief by PW6
I have read the statements by the arresting officers from KWS. I also called them and they explained to me that on 5th February, 2022, they received intelligence from their informant on a planned sale of wildlife trophies that was scheduled to take place on the same day in the afternoon. They proceeded to Kafichoni Junction in Mwakijembe, Kwale County.
They proceeded to the said location and laid an ambush on the suspects who were alleged to be carrying a luggage on a motorcycle. When the suspects were stopped by the arresting officers, they attempt5ed to escape but failed due to the positioning of officers. One of the suspects was riding a blue TVS motorcycle registration number KMFV 706U and the other was a passenger seated on two sacks at the back. The suspects alighted from the motorcycle and the officers requested to conduct a search on the contents of the two nylon sacks that had been secured to the motorcycle using a black rubber band. Upon conducting a search on the suspects, a panga was recovered from the waistline of the rider, the 2nd accused. The contents of the two nylon sacks revealed 26 pieces of ivory tusks.
The arresting officers enquired whether the suspects had a licence of ownership allowing them to possess the wildlife trophies to which they responded they did not. The arresting officers from KWS boarded their vehicles to Vigurungani Police Station. The 26 pieces of elephant tusks were weighed and found to be 91 kilograms. A weighing certificate was prepared and signed. The two accuseds were booked and interrogated and were to be produced in court on 7th February, 2022.
The 26 pieces of wildlife trophies and panga were taken by the KWS officers for safe keeping. The former Investigating officer took the suspected tusks to the National Museums headquarters for analysis and it was established that indeed they were elephant tusks.
The tusks are in court today and they are marked B1 to B26. They had been produced in court as Exhibit 3. The nylon sacks that contained the tusks were produced as exhibit 4. The black rubber band used to secure the sacks to the motorcycle was produced as exhibit 10.
The former Investigating Officer had carried out a search on the owner of the motorcycle. The motorcycle records dated 15th February, 2022, showed that it was registered to Watu Nominees Company Limited.
The two accuseds are present before court today.
Cross-examination by the 1st Accused
A1: Do you work with the National Police Se4rvice
PW6: Yes
A1: How long have you been in the investigation department?
PW6: For two years.
A1: What is the role in this case?
PW6: I am giving evidence on behalf of the former investigating officer who has since been transferred.
A1: Who prepared the charge sheet and the investigation diary.
PW6: The police
A1: Where did they get the information from?
PW6: From the arresting officers
A1: How long have you worked at Vigurungani Police Station?
PW6: Four years
A1: Did you know me before this case?
PW6: No
A1: Did you find out where I come from and why I was at the crime scene?
PW6: I know you are from Samburu and I have no idea why you were at the crime scene area.
A1: Did the Investigating Officer visit the crime scene?
PW6: No
A1: After arrest, were there interrogations or search carried out on the accuseds?
PW6: Yes.
A1: Is there a report on the interrogations?
PW6: Yes, you even recorded a statement to the effect.
A1: Where are the statements?
PW6: They are in the prosecution file.
A1: Paragraph 3 of Kennedy McCaan’s statement, he states that a body search was carried out on the accuseds and a panga was recovered from the 2nd accused. Was a body search really carried out on the 1st accused?
PW6: Yes. Nothing was recovered from the 1st accused.
A1: Paragraph 2 of the covering report states that there was a potential buyer at Vigurungani township. In paragraph 3 of PW3 statement, he states that the potential buyer would have been at Vigurungani estate. Isn’t it clear that the place where the transaction would take place was well known?
PW6: Yes. The place was known but not the individuals.
A1: How far is the centre from Vigurungani Police Station?
PW6: 120 meters
A1: For a transaction to take place, there has to be a buyer and a seller. Did you arrest the buyer?
PW6: No.
A1: Do you have any communication evidence between the buyer and the first accused?
PW6: No
A1: Do you have any evidence from the intelligence given to the arresting officers on the identity of the buyer?
PW6: No
A1: Why did you charge the 1st accused with the offence of dealing with wildlife trophies?
PW6: You were caught in possession of the wildlife trophies.
A1: Can one motor vehicle have more than one registration numbers?
PW6: No
A1: what was the motorcycles registration number?
PW6: KMFV 706U
A1: On the 2nd and 3rd paragraph of the covering report and PW#4’s report, it is stated that the registration number of the motorcycle is KMFV 706V. Is Do the same registration numbers belong to the same motorcycle?
PW6: The information I was given was that the registration number was KMFV 706U
A1: What is the motorcycle’s registration number?
PW6: MD625AF7OMG07483
A1: Is the owner of the motorcycle a witness in this case?
PW6: No
A1: Did you establish who had been given the motorcycle by the registered owner?
PW6: The motorcycle had been given a person known as Nyamawi.
A1: Did you call Nyamawi as a witness in this case?
PW6: No
A1: Were there any exhibits left at the police station after we were booked in?
PW6: All exhibits were handed over to the KWS officers.
A1: In the investigation diary, Corporal Obare handed over 26 pieces of elephant ivory, motorcycle registration number KMFV 706U to Corporal Hassan for safe custody. In the 3rd paragraph of the statement by the Investigating Officer, it is stated that the motorcycle was left at Vigurungani Police Station and the 26 pieces of elephant tusks were taken by Kenya Wildlife Officers. Who is in possession of the motorcycle.
PW6: I don’t know
A1: After handing over the exhibits. Were the police through with the investigations?
PW6: Yes, they were done.
A1: How many luggages were at the crime scene?
PW6: two luggages
A1: How many pieces of the tusks were in each of the nylon sacks?
PW6: I don’t know
A1: How were the luggages packed?
PW6: Each luggage was packed in two sacks
A1: In the charge sheet, it is stated that one panga was found wrapped together with the luggages. Where exactly was the panga found?
PW6: On the 2nd accused’s waistline.
Prosecution:
We seek the court’s indulgence to have this matter proceed tomorrow as it was allocated two hearing dates. The 1st accused can pick his line of questioning from where he left.
Court:
The 1st accused has been stood down for cross-examination. Exhibits 3, 4, 5 and 6 be retuned to KWS for safe custody.
Hearing will proceed tomorrow.
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#36. December 14th, 2023 (Mention): The court today assigned hearing dates on February 29th and March 1st, 2024.
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#33. October 12th, 2023 (Hearing): The hearing did not take place. One prosecution witness was in Malindi court on another matter and the IO was unwell. Matter adjourned to October 30th for hearing.
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#32. October 3rd, 2023 (Mention): DNA – Hearing date set for October 12th.
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#31. September 29th, 2023 (Hearing): Court not sitting, the Hon. Magistrate is away on official duty. Adjourned to October 3rd for mention.
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#30. September 5th, 2023 (Hearing): Today the court heard the testimony of Sgt. Paul of KWS who was one of the officers involved in the arrest and seizure. He recounted how their team was acting on intelligence received that two men in the Kinango county area were looking to sell ivory. They would be ferrying on a Blue TVS motorcycle.
#29. August 8th, 2023 (Mention): The court was not sitting but a hearing date of September 5th was given.
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#28. July 18th, 2023 (Hearing): Court not sitting, mention date of August 8th.
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#27. May 15th, 2023 (Hearing): The court heard from Prosecution Witness 3 (PW3) who was one of the arresting officers from KWS. He was part of the KWS arrest team and corroborated the previous evidence of his colleague in convincing fashion.
