Sentencing Date: 2024-07-09 |
Offence Date: 2017-09-18 |
Magistrate(s): Principal Magistrate M.W. Murage Senior Principal Magistrate Derrick K. Kuto Chief Magistrate E. Boke |
Court: Kibera Court 5 |
Trial Duration: 81 Months – Over 50 sittings |
Arrest Details: On September 18th, a meeting was set up at the Nairobi West shopping mall between the accused Mwema and a KWS officer posing as a buyer. KWS arrived at the meeting to find 3 accused sitting in a Nissan car with the ivory in a bag in the rear seat. Nashon Mochere, an AP policeman was seated beside the ivory. |
Link: |
Conclusion: Nashon Maati Mochere: Convicted of Dealing with wildlife trophies and sentenced to pay a fine of 1 million Kenya shillings or, in default, serve a five-year prison term. The fact that Mochere was a policeman at the time did not factor into the sentencing Charles Wambua Mwema: Convicted of Dealing with wildlife trophies and sentenced to pay a fine of 1 million Kenya shillings or, in default, serve a five-year prison term. The fact that this was Mwema’s second offence did not factor into the sentencing. Evans Moseti Mochere: Convicted of Dealing with wildlife trophies and sentenced to pay a fine of 1 million Kenya shillings or, in default, serve a five-year prison term. |
Final Update
#50>. July 9th, 2024 (Sentencing):
by E.Gutu
In a ruling today at the Kibera Law Courts, Hon. Murage handed down sentences to three individuals convicted of dealing in wildlife trophies in case number 3202/17. The court session started at 10:30am. Hon. Murage apologized for the delay and informed the attendees that the delay was due to the unavailability of the assigned prosecutor in court 5, and a replacement had to be swiftly arranged.
The accused persons, Maati, Mwema, and Moseti, appeared before Hon. Murage for their sentencing. The trio, already found guilty of their charges, appeared in the dock with legal representation for the 1st and 3rd accused, provided by Ms. Mose holding brief for Mr Njomo, and Mr. Makori, respectively. However, the file was placed aside and sentencing was postponed to the afternoon. The court reconvened at 2:20 pm to deliver the final verdict.
Hon. Murage stated that she had considered the submissions from both the defence and the prosecution, as well as referencing the Wildlife Conservation Act of 2013, in determining the sentence. The Act stipulates a penalty of either a 1 million Kenya shillings fine or a prison sentence of no less than five years, or both, for the offence of dealing in endangered wildlife species trophies.
In accordance with these provisions, each of the accused was sentenced to pay a fine of 1 million Kenya shillings or, in default, serve a five-year prison term.
Following the sentencing, the convicted persons were promptly escorted away to begin their respective sentences. Hon. Murage also informed the defendants of their right to appeal the sentence within 14 days if they chose to do so.
Presiding Magistrate and Court: Hon. M.W. Murage (Ms.) – Principal Magistrate Court 5 Hon. Derrick K. Kuto – Senior Principal Magistrate | |
State Counsel: Allen | Accused Advocate: |
Accused:
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Charges: Dealing in wildlife trophy contrary to section 92 (2) WCMA | |
Date of Arrest: September 18th, 2017 | Date of Arraignment: September 20th, 2017 |
Location of Arrest: Nairobi West Shopping Centre | Contraband Seized: 25 kg (2 pcs) |
Case Overview
AP Policeman and Retired Policeman Amongst Three Charged with 25 kg of Ivory
- On 12th September, 2017, KWS officers received an intelligence report of 3 men looking for a buyer of ivory. They were given the contacts of the retired police officer Charles Mwema.
- Over the next 6 days, a KWS officer posing as a buyer, made communications with Mwema over the sale/purchase of ivory.
- On September 18th, a meeting was set up at the Nairobi West shopping mall and KWS found the 3 accused sitting in a Nissan car with the ivory in a bag in the rear seat. Nashon Mochere, an AP policeman who was considered a recent ‘deserter’, was seated beside the ivory.
- In March 2013, the accused Charles Mwema had been charged and later convicted of being in possession of 2.5 kg of hippo tusks.
Court Updates
PROCEEDINGS
July 4th, 2024 (Sentencing): Kibera courts were again in disarray due to the continuing demonstrations or threat of demonstrations in CBD Nairobi. The court 5 court clerk gave another sentencing date of July 11th. The accused were not present.
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June 27th, 2024 (Sentencing):Kibera courts were today in disarray due to the continuing demonstrations in CBD Nairobi. The court 5 court clerk gave another sentencing date of July 4th. The accused were not present.
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June 19th, 2024 (Sentencing – Mitigation):Today’s proceedings went ahead with the probation officer producing his report, defence counsel gave their mitigating circumstances as well as the prosecution noting on the seriousness of the offence, how important wildlife is, and that it has a minimum penalty.
One of the defence counsel made reference to the Muruatetu case (Supreme court decision making mandatory death sentence illegal) on minimum penalty. The magistrate interjected and stated that that precedent does not apply in this case. The defence counsel continued that the court should look at the facts and law of the case. Magistrate Murage stated that she would need to consider the mitigation arguments with the probation report and set June 27th for sentencing.
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June 4th, 2024 (Judgement): At 14:00 hrs today in court 5 of Kibera Law courts, Principal Magistrate M. W. Murage found all three accused guilty of dealing in wildlife trophies.They had been found with 2 pieces of ivory weighing 25 kg 80 months ago. The court will first arguments on mitigation on June 19th before sentencing.
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May 14th, 2024 (Mention): The court set a judgement date of June 4th. SEEJ-AFRICA was. not in attendance.
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May 13th, 2024 (Judgement): It is uncertain if this was meant to be a judgement or a mention but in any event, neither happened and the Magistrate was not in attendance as she was not well. The court clerk advised to return tomorrow, May 14th.
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May 6th, 2024 (Judgement): Today’s scheduled judgement did not take place. The presiding Magistrate was off on leave. Court 6 handled the file and a judgement date of May 13th was scheduled.
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April 18th, 2024 (Mention):Judgement date set for May 6th. (SEEJ-AFRICA did not attend)
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April 3rd, 2024 (Defence Hearing): The matter came up before Hon.Murage and prosecutor Mr. Mutune. Also present in court was Ms.Mose representing 1st accused, Mr Griffin holding brief for Mr. Njomo representing 2nd accused and Mr.Makori representing the 3rd accused. All the three accused testified.
The 1st Accused
Nashon Maati, service number 248838, said that he was on leave on September 18th 2017. On the day of arrest, his cousin Evan’s Moseti who is the 3rd accused , who is also a taxi driver called him to meet in town for a domestic land issue.
They met at Uhuru highway ; because he had a client (2nd accused) , he ordered him to get inside the car, he would drop the client at Nairobi West, then meet later. Mr Nashon did not know who the client was and did not speak to him as he was at the back seat and on a phone call. Mr. Maati also stated that he did not listen to the conversation as it was not his concern. Upon reaching Nairobi West, National Oil, the client was still on phone. The client alighted and later called Evans to pick him at the petrol station. There was a double cabin vehicle so they parked behind the car (double cabin).
At that moment the taxi client (2nd accused )moved to where they had parked. Four people surrounded them and notified them that
they were under arrest, they were then put in to the double cabin vehicle and taken to KWS headquarters Langata. Upon reaching Langata it’s when he saw a luggage being removed from the boot of his cousins car ( 3rd Accused ). Nashon said he did not know Lamek Mose and Joseph Mochere. He also said that he was to return to Isiolo on the day he was arrested. His bag and phone were taken and he has not seen them since.
Cross examination
Ms. Mose- they didn’t produce his phone in the forensic report. It was earlier stated that Nashon went to garage and took his cousins car which he denied.
Mr.Mutune – Cross Examination
Matters arising
- The leave pass was given by Superintendent Musyoka and not by Ibrahim.
- Nashon never produced any pass before the court.
- He said he never hired the said motor vehicle.
- He said he can’t remember the language the client was using and he never saw his cousin being paid.
- The owner of the said vehicle came to court and said Nashon had hired the car which he denied.
- He said that he is even not aware why he was before the court.
Charles Wambua- 2nd Accused : He is a security consultant and managing director of the National Guard Kenya and also a chairman of the Institute of Certified Safety and Security Professionals of Kenya. On the day of arrest he reported to work as usual and at 1000hrs he went to supervise work at Nairobi West. He walked approximate 2.5km to the place and later on decided to go and purchase airtime for his phone. Upon reaching the shop the attendant seemed busy so he decided to find a different shop. He stated that near the other shop there was a vehicle parked adjacent to it whereby a driver called him by hand signal, he went and greeted him. He was seated next to a lady whom he came later to find out was KWS officer (HU). HU requested him his phone which he denied, she produced a pistol and she demanded him to get inside the vehicle. He hesitated and saw another gentleman approaching him (KWS IN) a witness in this matter. HU called for him to force Charles into the vehicle and demanded the phone which he gave out to her.
Wambua stated that his phone hasn’t been produced before the court, instead they produced a similar one. HU attempted to make calls and since the phone had no airtime she bought using her phone. She called somebody she don’t know using his phone in swahili and directed him to where they had parked. After five minutes HU got out of the car while holding Wambua’s phone. This time Charles asked the driver what was going on and he responded “ shuka uongee na yeye.” He alighted and saw a vehicle KAX being parked behind
the double cabin. Before talking to HU, other people approached the said vehicle. He realised they were armed police officers. HU told him to go back to the vehicle and he complied, they conducted a search on the vehicle parked behind and after 5 minutes two other guys were brought into the vehicle. IN and another person sat with them in the vehicle and two other people drove the other
vehicle to the KWS headquarters.
Upon reaching Langata, he was separated from the two other guys and was driven back to Nairobi West by the same driver. HU, IN, and TL were there. Upon reaching Nairobi West, HU told Wambua to give her kshs 100,000 so that she withdraws the matter and he told her he doesn’t have the money. HU told Wambua to call someone to bring him the money and instead of giving Wambua the phone to make the call he gave his brother in laws number.
Wambua was forced to speak and told his brother to come and if possible come with kshs 100,000. His
brother in law asked him why the money and said he is working. Before Wambua could answer, HU interrupted and
told him (brother in law) she is a police officer and he is under arrest they need the money. By then, they had parked
at Haile Sellasie road on the left side. It took time for his brother in law to arrive since he was working in Kitengela. He arrived between 4:00pm to 5:00pm. KWS took his brother aside, so Wambua doesn’t know what they said. However when he came back to him he asked him(Wambua) what kind of items were being spoken about.
Wambua denied knowledge of what was going on.
His brother in-law asked Wambua whether he was willing to give out the money and he told him to say he did not have the money. He was told he will be taken to Langata police station and they still demanded the money. From his call log he had frequent calls with his uncle who works along Ngong road in a hotel. His uncle told him to take them to a restaurant in town whereby they stayed there up to 9:00pm. They then left to Ngong Rd to his uncles work place. After reaching the said place HU and IN got out of the vehicle and went to meet Wambua’s uncle. The uncle later came alone to the vehicle talked to him in Kamba language and Wambua told him to tell them he doesn’t have the money. His uncle paid for the supper they ate and around 10:30pm they got into the vehicle and went back to the KWS headquarters and found the other two people whom they were arrested together. All of them were later taken to Langata police station and locked up. The following day they were arraigned in court.
Cross examination
Matters arising
- Mr. Griffin told the court that at time of arrest Wambua was using Samsung Y2 while the one captured in the memo is Samsung SM-J200. The phone number provided after search belonged to a Judy Gitau.
- Mr. Mutune told Wambua he resigned and Sergeant Arori knew him and was interested in doing business with him. Wambua denied knowing him.
- he also denied that he wasn’t going to meet HU and in fact, he was kidnapped. He also confirmed he couldn’t escape from the case. He also denied that he was the one looking for market for the ivory. He also denied he never send WhatsApp messages to anyone to buy the ivory. He stated that he never had chance to report HU to station for kidnapping him since they were in custody for nine months. He also denied he met with Pius ( Leader of the Kisii Community in town) at Kenyatta avenue within the city.
Evans Moseti ( 3rd Accused )
He said he stays at Utawala and he is a taxi driver. On the day of arrest he was called by Joseph to give him some work. Using the vehicle KAX 179J he picked the client from Nyama Villa in Kayole and he was to drive him to Nairobi West whereby he was to pay him kshs 2,000 upon reaching destination. He picked Wambua the 2nd accused alone and he had a luggage, the contents were unknown to him.
Evans said he wanted to discuss with Nashon about a plot they had bought earlier which had some issues. He said that he was not aware that they were in possession of ivory and he never knew the owner of the taxi car. He also said that Joseph never came to court to testify and he had never met Wambua before. He also said that the client was just directing him on where to go and he wasn’t even paid for the taxi work by his client. He prayed the court to set him free because he
was doing his normal job.
Cross examination-Makori cross examining
Matters arising
- Moseti said he never discussed anything with his cousin the day before.
- Hon. Murage asked Evans to identify the luggage and said it was wrapped in a carton with a sisal rope (kamba) where by upon opening the items were ivory.
- He also stated that Wambua loaded the luggage at the back of the vehicle next to where he was sitting .
Hon Murage gave out 14 days for filling of submissions so as to give a judgement date. Next court April 18th, 2024 for mention to set a judgement date.
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March 18th, 2024 (Mention): Defence hearing date set for April 3rd. (SEEJ_AFRICA not in attendance)
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February 26th, 2024.( Defence Hearing): Tensions ran high today in Court room 5, at Kibera Law Courts during the defense hearing for case number 3202/17 as an argument erupted between the prosecutor and the defense counsel before Hon. Murage. The crux of the disagreement revolved around an application made by the defence, requesting subscriber particulars for a mobile phone number utilized by KWS during the arrest.
The phone number in question was allegedly used by Officer HU of the Kenya Wildlife Service (KWS) to communicate with the second accused. Mr. Njomo, the attorney representing the second accused, produced a copy of the application, insisting that it had been submitted. However, the prosecution vehemently denied having any record of such an application and accused the defence of employing delay tactics. The timing of the purported application was also questioned by the prosecution.
Mr. Makori, representing the third accused, and Ms. Mose, representing the first accused, acknowledged awareness of Mr. Njomo’s application and sought the court’s direction on the dispute, while advising the court they were ready to proceed. Hon. Murage temporarily set aside the case file.
On consideration, Hon. Murage officially put the application on record and the defence formally served the prosecution with a copy of the application.
In light of this development, the prosecution requested an adjournment. None of the defence counsels opposed the request, and an adjournment was granted. The case will have a mention on the 18th of March to determine whether the application’s requirements have been fulfilled.
E.Gutu
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February 5th, 2024 (Defence Hearing):The matter was before Hon. M.W Murage. All relevant parties were present except Mr. Njomo who was represented by Mr. Griffin. The defence counsel, Mr Griffin made an application for an adjournment as the defence was not well prepared occasioned by sickness of a family member to the second accused.
The application being was accepted by the court and the next court date is set for February 26th, 2024.
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December 6th, 2023, (Ruling): Principal Magistrate M.W. Murage made the ruling today that the accused had a defence to answer and a subsequent defence hearing date has been set for February 5th, 2024.
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October 18th, 2023 (Hearing):
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September 28th, 2023 (Hearing): All relevant persons present and the hearing proceeded as scheduled. The prosecutor stated he had two witnesses, the IO and vehicle owner.
PW7 – Owner of motor vehicle Kax 178J..
He noted that he had been involved in accident heading to Naivasha with a car KAX 178J. Took car to garage left vehicle with Joseph Mochere. Later on he got a call from a police constable.He was asked what kind of business he did and advised to report the missing vehicle to Kayole police. Witness called Joseph who said he would explain. The car was at KWS and he went there to follow it up. As per vehicle search on NTSA, vehicle was registered under National Industrial Limited and Security Group limited. The vehicle transfer was done within the course of these events and logbook is now witnesses’ name. He said he did not know the 3 accused.
Cross examination
It was noted that PW7 kept on going two( 2) or three (3) times to the garage during the week to follow up on mising car before he reported to Kayole Police Station. The affidavit of reported theft had been produced in court. He stated that the fore-mentioned police constable did not take a statement,but she is the one who had who called him. He went to the KWS after bringing the case to court. He did not know any of the 3 accused, but he knew the brother `Joseph Mochere’ who is the manager of the garage.
He was asked how he knew that the accused were brothers to which he said the names were similar. He also said he did not know the 1st accused but he found out this relationship from friends. He stated that the car was still at the KWS.
Re-examination
The witness re -affirmed he is the owner of the vehicle, a car KAX 178J, as he has the logbook.
IO was to be the next witness but one of the defense counsels requested for another date as he and the IO have had along day and IO may be exhausted. Also prosecution noted that a cyber crime expert was to testify but was not present in court.
Court held that on the next court date all remaining prosecution witnesses appear in court so that prosecution may be able to close its case. The matter had taken long since 2017.The court was adjourned and next hearing set on October 18th, 2023. for Hearing.
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September 25th, 2023 (Hearing): All sides were present . Prosecutor: Allan Defence: Ms. Mose for 1st accused, Mr. Griffins h/b for Mr. Njomo for the 2nd accused, and Mr. Makori for 3rd accused
The matter was coming up for hearing and prosecutor stated he had 2 witnesses to proceed. However, when the 1st witness was to start, the defence counsels noted that that witness had already been examined.
The court confirmed from its notes that this witness had indeed been examined, cross examined by all defence counsels and reexamined.
The confusion was a result of change of Prosecutor.
Second witness PW-6 KWS scene of crime officer. She noted that on 5 June 2019 she was approached by the Investigating Officer (IO). He requested her to document exhibits of case file 3202/17 and she took photos. She noted 4 photos of the front, back and sides of motor vehicle KAX 178J. She then wrote a certificate dated 30/9/19 and certified that she took photos and were processed at her supervision. Photos produced as evidence.
Cross examination
Ms. Mose asked if she proceeded to know whose the vehicle belongs to. Witness noted she did.
Mr. Makori asked when she was approached by IO to take photos. Witness noted on 5th June 2019. Mr.Makori asked that if she was surprised this was 2 years after case was filed. Witness confirmed she was not. Mr. Makori then asked of she knew another collegue was called to take photos of motor vehicle when it was being detained (earlier during
arrest). She said she was not aware.
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June 28th, 2023 (Mention): DNA. Did not attend due to rioting in Nairobi. The next hearing date is scheduled for September 25th, 2023. This prosecution is now six years old.
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May 17th, 2023 (Hearing): The scheduled hearing did not take place as Senior Resident Magistrate D. Kuto had been transferred and his replacement had not arrived. The case was set over to June 28th, 2023 by SRM Riany (normally in court 9) for a mention to set the next hearing date.
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March 16th, 2023 (Hearing): All accused present, one KWS to testify who made the “buy” from the second accused. She provided the number that was used to communicate with him and described the arrest of the 3 men, the vehicle they were using and presented the 5 tusks in court. The hearing will continue on May 17th, 2023.
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February 8th, 2023 (Hearing): The court was not sitting. This hearing has been adjourned to March 16th, 2023.
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November 16th, 2022 (Hearing): The matter was adjourned because one of the defence counsel had another upcoming matter in a different court.
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August 25th, 2022 (Hearing): All accused present. The Investigating officer apparently did not have the information that the court required so case adjourned to November 16.
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July 4th, 2022 (Hearing): The prosecution thought the court was not sitting so was not prepared. Adjournment requested, next hearing set for August 25th, 2022.
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May 17th, 2022 (Hearing): One KWS witness testified relating to the circumstances of the arrest:
“The vehicle had a driver and a front occupant and 1 on the back seat. They were ordered to open the door and the officers introduced themselves. There was a sack at the rear seat… they were demanded to open the sack. Inside there was a carton inside with a cloth which had wrapped the tusks of id number.. non of the accused had any. They were reported at langata for more interview n search. During questioning, One of the occupants was a police officer( Nashon 248839).”
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March 14th, 2022 (Hearing): No magistrate or prosecutor. Adjourned to May 17th.
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December 9th, 2021 (Hearing): Hon. D. Kuto PM Court 5 – Set for hearing but no Magistrate (on official business) attended or any of the accused. Next hearing date of March 14th set by court assistant. Court is going on Christmas holidays tomorrow.
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August 23rd, 2021 (Hearing):
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June 25th, 2021 (Hearing): Hon. Derrick K. Kuto, Court 5 – hearing adjourned as trial magistrate on training at Kenya School of Government. Next hearing date August 23rd.
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May 25th, 2020 (Hearing):
Feb 20th, 2020 (Hearing):
October 24th, 2019 (Hearing):
September 26th, 2019 (Hearing): Adjourned to October 24th.
Feb 20th, 2020 (Hearing):
March 7th, 2019 (Hearing):
March 29th, 2018 (Hearing):
December 13th, 2017 (Hearing):
Hearing for the application for the release of the motor vehicle. A#2 advocate was not present in court and so, another date was set for 29thMarch 2018. A#1 gave instructions to a new advocate and he could not proceed as he had to peruse the file.
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#3. November 7th, 2017 (Hearing):
The owner of the vehicle in possession of the accused person made an application in court for its release. IO and WildlifeDirect filed their grounds of opposition for the release of the motor vehicle. The court gave a date for hearing of the application for 13th December 2017.
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#2. October 4th, 2017 (Mention):
The matter was set to confirm status of investigations by the investigating officer. The investigating officer (IO) gave with documents that showed that the 2ndaccused person had previously been charged with a wildlife offence. The accused’s advocate stated that past mistakes of the accused person should not determine the amount of bail and/or bail to be awarded by the court. IO also stated his fears that the accused persons were taking advantage of their position in the police force to orchestrate the offences. The court took note of the facts but ahead awarded the accused 1 million bond.
#1. September 20th, 2017 (Plea):
Accused persons plead not guilty for all counts and applied for reasonable bail. The investigating officer filed an affidavit opposing bail.
The investigating officer through the prosecutor stated in court that the 1stand 2ndAccused were using their positions as administration policemen to perpetrate the criminal activities. The court gave prosecution 2 weeks for further investigations as there was another accused was still at large. The investigation officer was also to interview the accused persons for purposes of verifying their fixed abode. Matter set for mention October 4th, court #5.
Nairobi Policeman, civilian arrested with 25 kilos of ivory valued at Sh1 million (Kenya)
Cyrus Ombati, The Standard
September 20, 2017
See link for video.
A policeman and two civilians were arrested as they tried to sell 25kg of ivory worth more than Sh1 million. Kenya Wildlife Service spokesman Ngugi Gachaga said the men had identified “a buyer” for five elephant tusks and approached him to sell the ivory to him.
“Through our intelligence, we were able to arrest them as they tried to sell off the ivory. They are under interrogation and will take plea soon,” he said.
Gachaga said they are yet to establish the source of the ivory and that the seizure reveals up to three elephants were slaughtered. He said the arrest indicates some state agents were involved in the crimes but vowed their crackdown will continue.
The three were locked up at the Langata Police Station ahead of their arraignment today where they face possession and trafficking of ivory charges.
This is the latest such arrest in the city. Last year, three other officers were arrested after they were found with similar ivory. Poaching in the region is on the rise.
