PROCEEDINGS
#21. June 10th, 2023 ( Hearing); This matter was scheduled for a hearing and despite the accused’s protestations, it went ahead with two witnesses.
The accused had told the court that his lawyer was not available. Principal Magistrae Lewa advised him that the case has to continue as there were witnesses to the case who had traveled from afar. The accused was instructed to get hold of his lawyer. His previous counsel, Mr. Rono, did not attend but he was represented by another lawyer Mr. Rashid.
Expert witness testimony
Dr. Jeremiah Poghon; He said that he is a graduate of veterinary medicine from the University of Nairobi and has a masters degree in wildlife medicine from the University of Pretoria, South Africa.
He works with KWS, and is based in Laikipia station based in Nanyuki. He is registered with Kenya veterinary board registration no. 1965. His a member of Kenya Veterinary Association and International Wildlife Association. He has been practicing for 22 years.
On the 20th of April 2021. while based in Tsavo, he visited Shimba Hills national reserve. He was presented exhibits by Police Constable James Olando who worked with DCI Kwale.
There were 12 pieces of what he suspected to be elephant tusks for examination and certification of such. They were in a brown nylon sack.
There are different ways of examining elephant tusks, since the exhibits were gross specimen, he used morphological examination. Exhibits were marked x1a,x1b,x1c…x1L Elephants tusks are enlarged teeth. Just like human teeth they have two layers an enamel and dentine( ivory). They are sharper at the end and large and broad at the base. They have a pulp cavity used for taking in oxygen attached to the skull. The specimen were cut into small pieces.
He put them into 3 groups, First group, BDHJ, were cut on the medial side with clean cut for concealment. Second group AGKL cut on both sides , Last group FCEI, this is the base attached to the skull. were cut on the medial side with a clean cut in need to hide them. On examining the three groups they all had the enamel and dentine, Schreger lines which are usually found on elephants tusks were visible.
His conclusion was that they were all elephant tusks cut in small pieces for concealment. Also the tusks were of different size as the bull has bigger tusks as they grow with age. While the female tusk are small as they stop growing at a certain age.
He did a report dated 20th April 2021.The exhibits were accompanied by an exhibit memo form( signed and stamped). This was presented to the court as evidence in this case.
Defense counsel cross-examination
The defense counsel was keen on knowing the validity of the expert witness whether he was qualified to practice as veterinary.
Q:You say you are a member of Kenya Veterinary Association can you verify?
A:I did not carry certificates or papers but you can google on the internet, I am member no. 304.
Q:How do you maintain membership? By subscription?
Q: I can not find.
A: This is a public domain.
Q; Are you a member? but we can not confirm?
A; It can be confirmed by a call. Membership to the association is optional. The veterinary board is the one that regulates membership and am member 1965.
Conclusion of the matter is that the membership was verified as his name and number was on the Veterinary board.
Q. When the tusks were brought to you did you know where they came from? Are you able to tell who handled the tusks?
A: Am not a specialist in that area.
Q:Other ways of examining?
A: if the tusks are ground into powder, we can not use morphological examination but use mixing of chemicals method to verify.
Q: It seems you can not tell who handled the tusks, what was used to cut the tusks?
A: Medically we call them clean cuts or sharp objects
Q; Can you confirm that this is a specimen of endangered species?
A: Elephants are endangered species.
Q: Did you confirm the offence under section of law.
A: The request was to confirm whether these were tusks or not tusks, that is where my work begins and ends.
Second Witness: Timothy Kirigha Superintendent (7594) Officer in charge Investigations Coast Operations( Based Mombasa) Gazette notice no. 5819 14th August 2015.
The matter at hand occurred when he was in charge of Kwale and Mombasa counties. Whenever there was an incident he would be informed. 17th April 2021. He was called by Jacob Burale, senior Warden Kwale county.
DCI Olando was handling the matter, The witness helped him draft the charges, cover the scene of crime by taking photos. He took 5 photographs; 1. brown manila sack with a logo (MSS sugar was produced in Mauritius), 50Kg. 2. Medium view shot of all the exhibits 12 pcs of elephant tusks alongside the packaging 3. Closer view shot 12 pcs of ivory separately. 4. closer view shot of all exhibits with manilla sack, manilla string, the 12 pcs elephants tusks with attempted reconstruction.
5. A medium view shot showing 12 pcs of elephant tusks reconstructed.
On 28th of April 2021 he produced the photos, made a certificate, and a report both signed by him. He presented these as exhibit in court.
Defence Counsel Cross-examination
Q: How does constructing or reconstructing of tusks relate to the accused?
A: Its basically about covering the crime scene.
Q: You were drafting charges for an accused that you could relate with exhibits?
A: The investigation was being handled by PC Olando and I was assisting in covering the scene of crime.
Q: When you were reconstructing what was in your mind?
A: To find how many tusks have been cut?
Q: Are you insinuating that they were cut from the same elephant?
A: Am not an expert in that.
Q: So was it for your own good?
A: that is the procedure.
Q: (Holding the photo album) Are these tusks the same as these produced as exhibits in court?
A: Yes. ( Defense counsel shows the photos to magistrate.)
The Defence counsel was in doubt as to the ivory in the photo being the same as what was presented in court as exhibit. Reason being the variance in colour or hue.
The accused insisted that indeed they were same tusks because of the structure and curvature. The difference in the hue may be attributed to light.
There was also an issue of the ‘term covering of crime scene,’ according to the witness that referred to securing of the ivory or tusks and taking photos of them as they looked after the arrest. Defense counsel noted that the witness being the one in charge of the investigations in the region should know more or should have visited the crime scene and not just the take of photos of the tusks.
The prosecution has more witnesses and therefore asked for an adjournment, which was granted by the court and is slated for September 30th 2024.
#20. November 28th, 2023 (Hearing): Today’s hearing did not take place, if indeed it was a scheduled hearing. At the last court sitting of June 22nd, the court verbally stated today would be a hearing date. Today’s online cause list for Kwale court indicated a hearing date while the posted cause list indicated today as a mention. Regardless, the court of Principal Magistrate Lewa set the next hearing date for June 10th, 2024. The prosecution this time responsible for delay, telling the court that they wanted a full day to avail all witnesses at once. Apparently there were no totally clear calendar dates in the courts diary until June.
With the holiday season approaching, courts around the country are now looking primarily at dates in February and early March. Of the over 80 cases that SEEJ is following, there are no cases past March 7th. This prosecution with one accused has been delayed for another six months.
Should a witness actually take the witness stand in Kwale Court #1 on June 10th, 2024, it will be just over two years since this case has heard witness testimony. In three years, the prosecution will have heard from three witnesses, and two of them were on the same day.
Surely now, one has to wonder if this prosecution of a Kwale County administrator is being delayed for reasons beyond the usual scope of justice?
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#19. June 22nd, 2023 (Hearing): A hearing did not take place, no witnesses were present. Accused and counsel present. In the course of setting a hearing date the counsel requested a date in November which was accepted by the Hon, Magistrate. Case adjourned to November 28th 2023 for hearing.
It is of note, that at the last scheduled hearing in March, defence counsel requested a November hearing date and were declined as it was too far away.
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#18. March 27th, 2023 (Hearing): A hearing did not take place, the cause list showing for ‘mention’. Accused and counsel present. In the course of setting a hearing date, counsel requested a date in November but Lewa declined, saying that it was too far away and this was a 2021 case. Adjourned to June 22nd for hearing.
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#17. February 6th, 2023 (Hearing): Presiding Senior Resident Magistrate Joe Omido has been transferred. This case was mentioned before Principal Magistrate Lillian Lewa. Accused and counsel present. This hearing has been adjourned to March 27th. A typed transcript of proceedings has been ordered.
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#16. November 14th, 2022 (Hearing): Magistrate on leave, adjourned to February 6th, 2023.
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#15. September 22nd, 2022 (Mention): Hearing date set for November 14th.
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#14. August 30th, 2022 (Hearing): It is believed that this hearing did not occur.
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#13. June 20th, 2022 (Mention): This was set for mention over the issue as to whether the previous civilian witness’s testimony was going to be contrary to his statement. DPP initially stated she was was told by police that witness could not be found but he entered the courtroom shortly thereafter.
As the witness was preparing to testify, the prosecutor requested an alternate hearing date. The magistrate asked the witness to first look at his written statement to confirm it is his. This was done. Hearing adjourned to August 30th.
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#12. June 6th, 2022 (Hearing): The hearing commenced with testimony from one civilian witness who worked at the involved guesthouse. A guest house receipt was entered into evidence. A second witness was scheduled to testify but prior to his taking the stand, he re-read his statement and declined to continue, having issue with the content. DPP referred to him as hostile. The matter was adjourned for a mention to see if the situation can be rectified.
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#11. March 7th, 2022 (Mention):
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#10. February 15th, 2022 (Mention):
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#9. January 25th, 2022 (Mention):
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#8. January 11th, 2022 (Hearing): Did not occur.
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#7. October 14th, 2021 (Hearing): Accused is now represented. Testimony from PW1 and PW2, Rgr. James Masha and Cpl Lazima Jali relating to the arrest. Tusk pieces (35 kg) were entered into evidence.
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#6. July 6th, 2021 (Hearing): – Adjourned to Oct 14th as DPP indisposed.
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#5. May 20th, 2021 (Mention): Case called and set for hearing on July 6th. The accused is not represented.
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#1. April 19th, 2021: Accused arraigned and pleaded not guilty.
