Today’s Court Update
#125 is a number assigned indicating this seizure has a link(s) to the Kromah cartel and its ivory was not DNA analyzed.
OVERVIEW
On April 25th, 2015, customs officials at Laem Chabang port (Bangkok, Thailand) intercepted a sea borne container from Mombasa and found it to contain 3127 kg of elephant ivory. The shipment was declared as tea leaves, which it did in fact, also carry.
Three weeks later, on May 16th, 2015, Singapore authorities seized a container declared as tea leaves but found to also contain 1783 pieces of ivory, 5 rhino horn and 23 lion’s teeth total weight coming in at approximately 4600 kg.
Subsequent investigation led to charges against nine individuals for the Thailand seizure only. Arrest warrants were issued for two others.
As part of this investigation, a number of vehicles were seized and bank accounts frozen, dealt with primarily under Miscellaneous Application 62 of 2015. MCA 62/2015 is not covered in this update.
Court Proceedings
Presiding Magistrate: Hon. Martha Mutuku – Chief Magistrate
State Counsel: Jami Yamina
Defence Counsel:
- J. Magolo
- Gakue
- Birir
- Ratemo
Previous Presiding Magistrates:
- Chief Magistrate Evans Makori Feb 2017 – Sep 2021
- Chief Magistrate T. Matheka Sep 2016 – Feb 2017
- Senior Principal Magistrate S. Rotich Aug 2015 – Sep 2016
- Chief Magistrate S. M. Shitubi Jun 2015 – Aug 2015
Previous State Counsel:
- Edgar Mulamula
- Wangila
- Jami Yamina
- Alexander Muteti
ACCUSED:
- Abdulrahman Mahmoud Sheikh aka Said Juma Said
- Sheikh Mahmoud Abdulrahman
- Mahmoud Abdulrahman Sheikh
- Lucy Muthoni Kahoto (KRA)
- Musa Jacob Lithare
- Samuel Mbote Mundia
- Salim Mohamed Juma Khamisi
- Abbasi Issa Rashid
- Kenneth Mwangi Njunga (Njuguna)
Warrants Issued: (rescinded) Nicholas Jefwa and Samuel Jefwa – turned themselves in November 2022. “Jefwa Brothers re-surface following years in exile after ivory seizure”
CHARGED:
- Between March 15 and April 26, 2015 at Mombasa, jointly with others, contravened Sec 92 WMCA to wit…..dealt with wildlife trophies of an endangered species namely 511 pieces of ivory weighing 3127 kg without a license from the Kenya Wildlife Service.
- Between March 15 and April 26th, 2015 at Mombasa, jointly with others not before court, contravened Sec 200(c)(ii) EACCM to wit…..exported to Thailand restricted goods from Kenya namely 511 pieces of ivory weighing 3127 kg loaded in container FCIU 5235796 valued at 576 million Kenya shillings without a permit issued by by the Kenya Wildlife Service.
- Between 15th March 2015 and 20th May 2015 in Mombasa, with others not before the court, contravened Section 3 (c) as read with Section 4 of the Prevention of Organised Crime Act to wit:acted together and in concert with others to deal game trophy namely 511 pieces of ivory weighing 3127 kilograms without a licence.
COURT PROGRESS
August 31st, 2023 (Ruling): Today was scheduled for Chief Magistrate Mutuku to make a ruling on whether, after 8 years, the prosecution had provided the court enough evidence that the accused had a case to answer. This could have been the end of the prosecution. Alas, it was not to be. Since setting this ruling date on July 27th, the Honourable Magistrate must have decided to take leave and was absent, as were most of the Magistrates at Mombasa Law Courts. It appeared that only Court 13 was open. This matter is adjourned to September 11th to set a date for the ruling.
July 27th, 2023 (Mention): The ODPP have not yet filed their submissions, the prosecutor watching brief for Mr Jami advising that the delay is due to complexities of the case. CM Mutuku sets a date of August 31st to make a ruling as to whether the defence has a case to answer.
June 30th, 2023 (Mention): The proceedings have now been typed but more time has been requested by Defence to file submissions as the proceedings are bulky. Adjourned to July 27th to file submissions.
May 30th, 2023 (mention): Today’s date was set to again confirm the filing of submissions by defence and prosecution as to whether sufficient evidence had been presented for there to be a case to answer (prima facie case). Neither the defence or prosecution have filed their submissions. Also, all previous proceedings (CM Mutuku has heard testimony from only 3 of 27 witnesses) are required to be typed and this has not yet been done. Matter adjourned to June 30th, 2023.
May 11th, 2023 (mention): Today’s date was set to confirm the filing of submissions by defence and prosecution as to whether sufficient evidence had been presented for there to be a case to answer (prima facie case). The court found CM Mutuku on leave and her matters were heard in court 8 where this matter was adjourned to May 30th.
March 7th, 2023 (hearing): This was scheduled to be the last day of the prosecution’s case. Four witnesses were due to testify, only one was present. The explanation for absence? The Cybercrimes officer was unable to travel (no explanation given), the scene of crime officer was unwell and the third officer involved in an active investigation and could not attend.
The reason that this was not a bigger issue than it should have been? While not declared as such, and reading between the lines, it was finally time for the Office of the Director of Public Prosecutions (ODPP) to capitulate and throw in the towel. This was not a day of presenting evidence, (although some evidence was presented), this was a day of damage control.
Senior Superintendant James Githinji of the Directorate of Criminal Investigations (DCI) was the lone prosecution witness. He was on the stand for almost two hours. Thirty minutes of his testimony was dedicated, on direct questions from prosecutor Jami Yamina, as to how the Kingdom of Thailand had not cooperated with Kenyan authorities in this investigation.
Much of his testimony was actually a summary of the initial investigation, some was actual evidence, some was unsupported.
In essence, on March 21st, 2015, a container contracted by Nicholas Jefwa went to Siginon Freight Services and was loaded with bags of tea. The container left a few hours later and instead of proceeding to a customs control area, went to a house in Nyali (east Mombasa). It remained there for 2 days until it was driven to the port where the container cleared customs primarily on the strength of it carrying tea which was at that time exempted from scanning. (it was implied that ivory was loaded on the container during those two days.
The investigation subsequently revealed that the Nyali house was leased to a Said Juma Said whom , it was alleged, was the same as Abdurahman Mahmoud Sheikh, the first accused. Inside the home, a receipt was found that listed items from an area grocery store which, through loyalty points, was linked to the second accused, Sheikh Mahmoud Abdurahman. The father of the first two accused, was linked to the property as he had been seen there at least once in their company. That was unsupported by evidence.
Inside the Nyali property, were found ivory fragments, a weighing scale, an electric grinder, scratch pads, and empty bags, similar to those used to package the tusks. The ivory fragments were confirmed to be elephant ivory.
The problems were then outlined regarding the required assistance from the Kingdom of Thailand that was not forthcoming. A team from Kenya did travel to Thailand to gather evidence and take DNA samples but were at the last minute denied access to the ivory or any evidence related to this seizure.
This began a long paper exchange between Kenya and Thailand over the required international mutual legal assistance. Thailand did provide an analysis to Kenyan authorities that the ivory found in the container was actually elephant ivory but it was not in a format to pass the rules of evidence.
Of note, and not specifically related to the trial at hand, was the testimony from SSP Githinji that the Jefwa brothers were in Kenya and apparently under the protection of anticipatory bail through the High Court, pending their statements to investigators and decisions by the ODPP on how to best proceed.
It was concluded that there was absolutely no evidence whatsoever relating to Salim Mohamed Juma Khamisi or Abbasi Issa Rashid, who were drivers/staff under the employ of the first three accused. Evidence against Samuel Mundia, a taxi driver of the Jefwa’s, was provided in the last minute of SSP Githinji’s testimony, in that he (Mundia) assisted the Jefwa’s in their escape from Kenya. This was presented more as an afterthought. There was also no evidence against the father, Mahmoud Abdurahman Sheikh, besides the fact that he had been seen once at the Nyali property. There was no witness who presented that fact, no date and time when that observation was made.
Mention was made of the assets recovery investigation that was initiated but fizzled out. While vehicles were seized and accounts frozen, all that could be said was that amongst the accounts of the three primary accused, were some transactions for which the accused could not explain. It was agreed on cross examination that there was no transaction in their accounts that corresponded to a sale or transportation of 3127 kg of ivory.
In conclusion, the conduct of this investigation and prosecution raises many questions. One is left with the distinct feeling that this investigation and prosecution, like so many other prior failed ivory prosecutions, is being orchestrated by a hitherto unknown force at a high level.
The court adjourned to May 11th, 2023, by which time written submissions will be submitted as to whether the prosecution has provided a prima facie case for the defence to answer. It is unlikely to meet that threshold.
*****************
March 6th, 2023(hearing): Two prosecution witnesses testified today. Dr. Ogeto Mwebi, of the National Museum of Kenya, testified that he received 5 envelopes from investigators of what were believed to be elephant ivory fragments. He conducted a microscopic analysis and determined that they were from ivory tusks but he could no say if they were from savannah or forest elephants. His report on the findings was dated June 4th, 2015.
The second witness was Nelly Wangare. In 2015 she was employed in a managerial position as a property agent with Mombasa Investments. She co-signed the lease with the landlord and the leasee who provided identification at the time in the form of a Tanzanian passport in the name of Said Juma Said. This was done in August 2013. She could not identify the man who signed the lease as Said Juma Said.
The hearing is adjourned when the last two police witnesses are set to testify, including the investigating officer.
*****************
November 16th, 2022(hearing): DPP represented by Senior Principal Prosecution Counsel Jami Yamina, advised the court that they were unable to proceed and requested an adjournment and fresh date. He had just been advised by the IO (investigating officer) that there had been challenges in having the last five witnesses to attend. One was on other duties in Northern Kenya, one was out of the country one was on annual leave and one was unwell.
***********************
September 14th, 2021 (Hearing): This had been scheduled as a day that defence would present arguments on the new evidence application in front of CM Makori in court 1. However, there was a communication breakdown as court 1 was being used by CM Nyaloti and DPP Jami was not present, even though all accused and their advocates were. CM Makori came into the courtroom while CM Nyaloti was on a break, called the case and adjourned it to October 25th.
***********************
July 5th, 2021 (Hearing): The prosecutor was absent, hearing adjourned to September 14th.
***********************
June 10th, 2021 (Mention): DPP Jami advises that he has sent the new evidence application to all defence advocates. They advise that they will be replying orally. July 5th set for hearing.
***********************
May 27th, 2021 (Mention): This was slated for a mention but it did not happen in court. DPP Mulamula advised that the case had been adjourned in chambers to June 10th.
Case facts can be read at:
- #38: May 16, 2015 – 4.6 tonnes of ivory from Mombasa seized in Singapore tea shipment.
- The brothers Jefwa – wanted or not?
- Ivory case now over 50 sittings in Mombasa court.
- Mombasa magistrate orders DPP to close its case.
- New information for Mombasa court to ponder as U.S. links Kenyan ivory to West African cartel.
- New evidence application in ivory case – legitimate or facade?
- New evidence application withdrawn one year later.
Thai customs seize 511 pieces of elephant ivory destined for Laos
Tusks were court evidence, say Thai officials
Saturday May 2 2015
In Summary
- “Most of them were the tusks earlier seized and sent back to their origins in Africa whereas some were those having been kept as evidence in some countries,” said Gen Dapong.
- “Ivory is being stolen from the courtrooms. There is a lot of corruption, and many government officers are involved in facilitating the traffickers,” she stated.
- KWS spokesman Paul Gathitu said the corporation would be ascertaining the origin of the ivory: “This week we should be able to have investigated and established that court case evidence is being stolen and resold as claimed or not”.
POLICE HUNT FOR TANZANIAN, KENYAN BROTHERS LINKED TO SH570 MILLION IVORY HAUL
May 25, 2015
Daily Nation
Detectives hunting for officials of Potential Quality Services transport company linked to the contraband seized in Singapore.
In Summary
Investigations show that he, a senior Kenya Revenue Authority staff and a government official were behind the haul.
Also being sought are two brothers, Mr Samuel Jefwa and Mr Nicholas Jefwa, who are officials of Potential Quality Services.
KRA has also written to both Interpol, Singapore and Thailand to assist its investigations into the case.
Detectives have for the second time interrogated staff at Siginon Freight in Shimanzi, Mombasa, where it was established that the initial cargo, blended tea, was parked into 220 bags on April 19.
Police are hunting for a Tanzanian who had rented a house in Nyali, Mombasa, in connection with the Sh570 million ivory haul seized in Singapore last week.
Investigations show that he, a senior Kenya Revenue Authority (KRA) staff and a government official were behind the contraband.
Also being sought are two brothers, Mr Samuel Jefwa and Mr Nicholas Jefwa, who are officials of Potential Quality Services, the company that exported the container in which the contraband was shipped.
The two have been exporting 40-foot containers disguised as tea consignments since last year.
PRIME SUSPECTS
“The two prime suspects are still at large. However, efforts to locate them have been intensified through the inter-forum agencies dealing with this matter, including the National Police Service,” said Ms Maureen Njongo, the KRA spokesperson.
The Tanzanian has rented the house since 2013.
However, a rental agent associated with the house told detectives that the tenant had not provided any identification documents.
He would pay his rent in cash and was never issued with any receipts, he said.
BROTHERS ON THE RUN
A senior police officer involved in the investigations on Monday said the two brothers are suspected to have fled to unknown destinations through Uganda.
“Their mobile phones were active and were last used at the Busia border. We, however, do not rule out the possibility that they could be in the country,” he said.
KRA has also written to both Interpol, Singapore and Thailand to assist its investigations into the case.
Detectives have, for the second time, interrogated staff at Siginon Freight in Shimanzi, Mombasa, where it was established that the initial cargo, blended tea, was parked into 220 bags on April 19.
The two containers then left Siginon on April 19 and 20 and arrived at the port for loading onto the vessels Cape Moss and Cape Madrid, respectively.
RHINO HORNS
On April 27 and May 19, the illegal consignments of ivory and rhino horns were seized in Thailand and Singapore, respectively.
Potential Quality Services made arrangements for transporting the containers and it has been established that Mr Nicholas Jefwa gave Siginon the blending instructions from the shipper, Almasi Chai (Kenya).
However, the documents releasing the containers were signed by his brother, Samuel.
The two lorries used to ferry the cargo, registration numbers KNY 944 and KSM 783, were also impounded in Mikindani and later moved to the customs warehouse.
“The owner of the two trucks has also recorded a second statement further to the one earlier statement made at Port Police,” Ms Njongo said.
