Proceedings
#35. January 26th, 2024 (Judgement): The matter was coming up for judgement. The magistrate noted that he was unable to complete the judgement by today’s date due to work constraints. The Court noted that it understood the accused’s constraints and judgement will be ready next week. Judgement is set for 2nd February 2024.
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#34. January 18th, 2024 (Mention): Final submissions have been submitted to the court. There will be a judgement on this matter on January 26th, 2024.
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#33. January 12th, 2024 (Mention): Today’s mention to ascertain the status of filed submissions did not progress as planned. The prosecution advised the court that defence counsel had wanted to join virtually but could not due to a power outage. The court noted that since the defence counsel and accused were not present, instead of giving a judgment date, he gave a mention date as even the court file did not have the submissions that ought to have been filed by the defence.
Matter to mentioned on January 18th to again confirm filing of submissions from defence and to set a judgement date.
Note: It was confirmed there was a power outage for a period of time but generators were activated.
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#32. December 19th, 2023 (Defence Hearing): This case has now concluded with testimony of the accused. It was not done virtually as expected. The court has set a mention date of January 12th to confirm the filing of submissions.
The following is the testimony of the accused, Hoang Thi Diu. There was a translator in court. Testimony began at 13:00hrs. The accused person intended to give a sworn testimony. Her advocate stated that they had 2 witnesses but she could not get them, so she opted for the sworn statement.
The accused took the oath and stated her name. She then narrated the events of the case. She states that 29th of August 2022 is when she arrived in Kenya. She produced her itinerary from Angola to Kenya (as defence exhibit. She confirmed the date of arrival and states that it was her first time in Kenya.
She stated that she remembers the events of 16th November 2022. Defence counsel showed accused photos of apartment she lived in, stating that the photo was produced as exhibit.
She explained the events which led her to live in that apartment. She narrated that when she came to Kenya, she did not have a place to stay, she stayed in a hotel called Eastland’s Hotel ( sp) which charged Kes 10,000 and she stayed there for 10 days. She realised that the hotel was expensive and talked to a lady to get cheaper accommodation. The defence counsel produced photo, as exhibit, of the lady that assisted her to get cheaper accommodation. She confirmed the person in the photo is the one who was to look for the cheaper accommodation. The lady agreed to look for cheaper accommodation for her. She said the lady is her friend, she only knew her from Kenya but she comes from Vietnam. Her name is Ami.
She confirmed that Ami is the person who introduced her to the apartment. She cannot recall exactly when she started living in the apartment. She only recalls that she arrived in Kenya in 29th and stayed in hotel for 10 days then later, the apartment.
When asked if she knew the deceased, Mr. Yang Chaggui, she stated she did not know him previously. The defence counsel produced his photo. She confirmed that before going to the apartment and only knew him when she met him. She stated that Mr. Yang informed her that there is a room in the apartment but there was a person who was living there before. The person had left and she (the accused) could live in that room but she cannot mess with the belonging of the person who used to live in that room before. The accused confirmed she never touched anything in that house. She also stated that Mr. Yang had also he told her if she lived for only a month, he would not charge her rent.
She confirmed that when she got to the house there were 2 people living there, the owner and the other person who she identified as Ali. She doesn’t know the person who occupied her room before and was informed by Mr. Yang that she (the previous occupant) was Ali’s girlfriend.
She stated that on 16 November 2022, she woke at around 7 am and going to the sitting room found 2 phones belonging to Mr. Yang on the table and they were ringing. She knocked on his door and informed him of the phone calls. She knocked a number of times with no response. She got suspicious because normally Mr. yang carried his phone into his bedroom. She got scared, went down stairs to security person to help check on Mr. Yang. When the security guy came, he knocked on the door but nobody opened. He them opened the door as it was not locked from inside. They both went in and tried to wake Mr. Yang up. She got scared when there was no response.
Her advocate asked her what steps she took after that. The accused stated that she was scared and told security guy to stay with her and help her contact the police. She called another Chinese who came and they all went to make a report at the police station. She said she doesn’t know the name of Chinese. She called the Vietnamese lady Ami, and it is her who called the Chinese. There were 4 (2 security guards) who went to the police station. 5 Police officers (1 lady 4 gentleman) accompanied them back to the apartment.
She did not see what the police officers did. She stayed in the living room. Then she went downstairs as she was anxious. Then she went back as time had passed and found police coming out with big bags. Police told her she can go. She however stayed around for 5 min . She confirmed that this was the first time she saw the items in suitcase. She had never interacted with the deceased even they have never ate together. She has never stepped in the other room (opposite Mr. Yang’s ) but she knew it was Ali who was living in that room.
First time she saw the evidence was when police officer brought them out from her room. She confirmed that she never touched the wardrobe as she had been informed not to touch anything by Mr. Yang.
On 18 August 2023 during the scene visit, the advocate asked her whether she saw any items she had left in the room when living there. She said that there were things that were not there before which are clothes, shoes, passport, phones, and makeup kit. She noted main door to the apartment was broken. She also noted that when she was living in the house, there were casino coins in the room she stayed in. Court interjected here stating that she can only answer questions put to her by her advocate and that had not been asked by her advocate yet.
She confirmed she has never seen any of the items prior to 16 November 2023 and if she did see those things she would have just ran away instead of calling police.
She said she has a younger sister who she was working with in Angola. When the sister got a boyfriend and introduced to him to her parents, their parents refused. The sister then ran away. Her father got sick and requested her to go look for her sister. She received info from a Chinese that her sister was in Kenya and that is why she came.
She said she was told that her sister was in Nairobi and everyday she was seen in casino. When she confirmed she bought 2 air tickets from Kenya to Angola. Defence counsel produced the 2 tickets as exhibit.
In response to her advocates question of when she was to return to Angola, she explained that her initial plan was to look for her sister for a month as she has a phone shop in Angola she was managing. She came because her dad was very sick. Before Mr. Yang’s death, 2 or 3 days before, she had made up her mind to go back as a month has already passed.
Cross examination
The accused stated that her country of origin is Vietnam. She started living in Angola in 20 January 2017. She was living with her elder sister who is the one who had taken her to Angola.
When asked whether she has been with her younger sister in Angola, she responded yes she was there to do photocopy business. She also responded that her parents have never been to Angola.
She stated that her younger sister and her (the sister) boyfriend knew each other in Angola and he was present in Angola part time. They were living together before the sister ran away after her parents refused the boyfriend. She stated that her sister did not inform her or any of the member family when she ran away. She and her family could not communicate with her sister in the time she had ran away and her (the sister) phone did not go through.
She stated that travelled alone from Angola but on plane she met a Chinese. She doesn’t know his name but she initiated a conversations because she speaks Chinese but doesn’t speak English while Chinese spoke English, and this would help her in her journey. His destination was going to Mombasa and once they arrived in Kenya they parted ways.
She confirms that is the same informatiion she gave to police when she was first asked. She confirmed that she was directed to the Eastlands Hotel by the agency that purchased the air ticket so when she arrived there was taxi to take her to the hotel.
She did not know Ami before, but since she was informed about her younger sister being in casino she went to look for her sister and that’s where she met Ami. She met Mr. Yang after introduction done by Ami because Mr. Yang goes to the same casino. She confirmed that she met Mr. Yang for the first time at the casino then after that she was taken to the apartment. Mr. Ali was also living in the apartment. She found him already there. She noted that Mr. Yang and Ali may be close as they would cook and eat together.
In that period, there were people who were visiting and all of them were Kenyans (only 2 guests 1 lady and 1 gentlemen). She also noted that she was not always in the apartment as she was looking for her sister. She stated that she was not aware of the nature of their (the Kenyan visitors) visit.
When asked how long she had stayed in the apartment, she stated that she cannot really remember but it was more than a month but not more than 2 months.
She stated that she was given 2 keys, 1 for the main door and the other her room by Mr. Yang and he informed her that when she was leaving to give key back.
She stated that normally she would not close her room as there were belonging which were not hers, and in case Mr. Yang wanted access to them, there was ease to get these belonging. So a day came she did not find the casino coins and when she asked she was told Mr. Ali is the one who took the casino coins
When asked where she stored her belonging, she stated that she was storing her clothes either in her suitcase or the bed. She confirmed that whatever was in the wardrobe whatever belonged to previous owner and she had been informed not to touch anything. She specified that she was given clear instructions not to touch anything in that room
She stated that she did not know the name of the lady who the belongings belonged to. She did not read the name in the passport but from the look it looked like a Chinese passport and since she can’t read Chinese, she could not get name of the lady.
She affirmed that she purchased return ticket she did know exact date as she knew she only would stay a month. She provided that the return ticket would not work if she would have stayed for more than 3 months and she would have to buy a new ticket.
She confirmed that she has not yet found her sister and she is not communicating to anyone.
Re- examination
She insisted that she never touched anything that was not hers in the room she was given, and that Mr. Yang and Mr. Ali had access to the room when she had not shut it. She usually left it open during the day. She also noted that there was also a cleaning lady who came. Additionally, she insisted that she never used the closet.
The defence rested its case.
Defence counsel stated that he will be filing submissions and seeks for an early date as the accused wishes to have her passport released and case concluded.
Prosecution stated that they will be relying on the record and won’t file submissions.
The court set a mention date to confirms filing submission by the defence on 12 January 2024.
Mention: 12 January 2024.
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#31. December 1st, 2023 (Defence Hearing): Today’s scheduled defence hearing did not take place. The prosecutor, while engaged elsewhere, did appear virtually to express his apologies for unavoidable circumstances that led to his unavailability and requested an adjournment. The accused appeared virtually but her lawyer was physically in court. He did not object to the adjournment. Hon. Kiage Oenga adjourned the hearing to December 19th to be held virtually.
This is the first time that SEEJ-AFRICA has seen a criminal court allow an accused to give testimony virtually on their own behalf, post Covid.
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#30. November 10th 2023 (Ruling): Late on Friday afternoon, Principal Magistrate Gideon Kiage Oenga ruled virtually that the accused, Hoang Thi Diu, had a case to answer. She was not present but her advocate was. Defence hearing set for December 1st and two witnesses expected.
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#29. October 18th 2023 (Mention): The mention went ahead with prosecution and defence advocate Muchiri online. It was confirmed that submissions have been filed. A ruling date has been set for November 10th.
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#28. September 18th, 2023 (Mention): Today’s mention was done virtually in front of the Court One magistrate, Hon. Boaz Maura Ombewa. Magistrate Kiage Oenga was on leave. The court has set another mention date of October 18th to set a date for a ruling.
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#27. September 11th, 2023 (Hearing): Today’s hearing continued with a cross examination of the crime scene officer and the last two prosecution witnesses. Defence advocate, Brian Muchiri, led off with a rigorous cross examination relating to the scene of crime process. It was admitted by the crime scene officer, that with the exception of two bags of ivory found in the room of the deceased, all other exhibits were not photographed in their original location but moved to the living room area of the apartment prior to. Mr Muchiri was also concerned about three seized mobile phones being left off the second inventory list and was told that it was a decision made by KWS IO, Chief Inspector Inoti.
The second witness to testify was Dr. Ogeta Mwebi of the National Museum of Kenya. He stated that on December 7th, 2022, he received from Chief Inspector Inoti, 313 assorted wildlife remains for identification. He subsequently identified the remains as belonging to various wildlife species, including elephant tusks, leopard teeth, lion teeth, baboon teeth, lion claws, rhino horns, and rhino skin.
The last witness was Chief Inspector Charles Inoti, seconded DCI officer to the KWS. He had held that position for over 10 years. He gave an overview as to how he became involved in the investigation. He stated that he had learned from the accused that she arrived from Angola approximately six weeks prior to the seizure. She had only been staying at the apartment for a few weeks when the Chinese national died.
CI Inoti also told the court of his learning of a 3rd person who had been staying at the apartment. Ali Hussein, described as an Egyptian national, had been staying in one of the rooms where rhino horn were found. He had a home in Machakos and stayed in the Lavington apartment only on weekends. CI Inoti explained that Hussein was arrested at JKIA airport prior to boarding a flight out of the country but the ensuing investigation absolved him from involvement. CI Inoti also told the court that nothing of relevance to the investigation was found on the three mobile phones of the deceased Chinese national.
The matter has been adjourned to September 18th for mention.
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#26. September 8th, 2023 (Hearing): Today’s hearing, scheduled for 1:00 pm, did not take place as the IO and police witness were approximately one hour late, reportedly stuck in traffic. The Honourable Magistrate Gideon Kiage Oenga adjourned the hearing to September 13th at 1:00 pm.
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#25. August 23rd, 2023 (Hearing): Began at 13:00hrs
Today’s hearing was at Apartment C-13 at Sunshine
Court and scheduled for 1:00pm. The court and KWS arrived together at or about 4:23pm. The scene of crime (Unit C-13) was reconstructed, and the hearing proceeded with one witness, Martin Kiogora.
Upon the witness concluding his examination in chief on or about 5:30 pm the Magistrate suggested to the defence counsel that he takes another date for cross-examination so that if he may wish, obtain a copy of the typed proceedings of the information captured in court today. The defence counsel did not object to the magistrate’s proposal and therefore sought for an adjournment, of which the prosecutor did not object.
Subsequently, the prosecutor made an application for the court to preserve the scene of crime by taking possession of unit C-13 and its contents. The Court responded by stating that, Unit C-13 be held in Situ (in its existing place) awaiting the outcome and determination of the case.
September 8th was given as next hearing date for the cross examination of PW6.
Testimony of Scene of Crime officer Martin Kiogora PW6
He stated that he responded to a report made of a sudden death and therefore proceeded to Sunshine Court and specifically Unit C-13. Upon entering the said unit, he stated that he went to:
Room 1 (Self-contained) which is on the right side and found the body of the deceased lying on the bed. He further stated that the deceased was identified to be, Yang Changgui.
Thereafter, he took photos of the body. From his report he stated that he took photographs as follows:
– 1st Photo – general photo of the house
– 2nd photo – entrance of Mr. Yang room identified as room 1
– 3rd photo- general view of the body
– 4th photo- close up view of Yang’s face
– 5th photo- medicine on top of the bedside drawer
He stated that he checked the body for injuries but none were documented. It was his testimony that in the process of lifting the body there was a suspicious bag and sought to know the contents of the bag beneath the bed. It was upon opening the bag that they found suspected elephant ivory
– 6th photo – took 2 pictures of 3 opened bags
2nd Room (self-contained)
The witness did not mention who occupied this room but it was earlier said to be occupied by Ali Hussein. I was able to see that this room was directly opposite room the which the body of the Yang Changgui was found.
– 7th Photo- captured 2 bags, one of the bags was found under the bed containing 2 rhino horns. The witness stated that it was in this room that the suspected communication gadgets were found. Furthermore, he stated that it was in this room that they found sculptures suspected to be curved from ivory.
In this room, two safes were observed, one large one that was placed on an open space beside the bed and the other which was small and placed underneath the study table beside the bed. The witness expressly stated that they were not able to have access to them at that time.
The counsel of the accused raised a concern as to why a cheque book and 2-3 passports which were on the study table not presented to court as exhibits. The counsel upon examining one of the passports stated it was under the name of Ali Hussein. The Magistrate in response stated that he has take note of the defence counsel observation and that if he had any question with regards to the passport, he could raise it during cross examination.
3rd Room (Self-contained)
The witness did not expressly state who occupied this room but from previous witness account it was stated that the room was occupied by the accused person, Hoang Thi Diu.
The witness stated that on the top left wardrobe they found a package sealed with tape and upon opening found numerous lion teeth and claws. He added, referring to his report and specifically photo no. 12, which showed all the lion teeth and claws amounted as follows:
– 65 lion teeth
– 160 lion claws
Lastly, the witness stated that there were women clothing in this room.
The counsel of the accused raised one (1) concern:
Why 2-3 boarding pass that were on the study table not produced to court as exhibits. He read
out one of the boarding passes and and stated the name ‘Ali Hussein’.
On leaving the room, the accused person through the interpreter commented (not formally captured) that the room had numerous female clothes and shoes that had now seemed to have been removed.
The witness took the court back and mentioned that for photo no.14 and no.15, captured:
– All 68 pieces of elephant tusks.
– 2 pieces of rhino horns
– 3 boxes of suspected communication gadgets
Balcony
The unit contained two balconies and this one is accessed from the kitchen. So, in this balcony the witness stated that they recovered various cutting equipment which I was able to observe to be hack saws and were four in number.
Servants Quarter (SQ)
This room can only be accessed through the kitchen and subsequently through the balcony. In this room they recovered an electric cutting saw.
Sitting Room
It is worth noting that the unit has an open plan kitchen so there is no wall or door separating the kitchen from the sitting room. In this room the witness stated that they recovered a clear glass jar which was in a cupboard that contained a whitish unknown substance.
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#24. August 10th, 2023, (Hearing): Today’s hearing proceeded with a worker at the apartment complex (PW-2) who was only cross-examined by defence counsel and subsequently re-examined. Thereafter, Inspector Stephen Muriithi, a new witness gave his examination-in-chief, cross-examined by defence counsel and subsequently re-examined. The hearing which started at 2:25pm, ended by 4:30 pm.
On conclusion, the prosecutor requested the court to make orders that the OCS Muthangari Police station make available the scene of crime (unit C-13) on the next date scheduled for hearing. Additionally, the said scene of crime be reconstructed since the scene of crime officer is scheduled to testify on that day (August 23).
Also of note, defence counsel’s performance gave rise to question his experience; was not articulating well, filing unnecessary applications, asking irrelevant question, pressing on non-issues, raising unnecessary objections, failing to draw a connection to his clients interests. He took so much time asking a lot of irrelevant questions making the hearing unnecessarily lengthy and, in some instances, appeared to be doing the prosecutor’s work e.g some questions unfortunately opened a can of worms to the detriment of his client and a plus for the prosecution.
Testimony of PW5- Inspector Stephen Murithi
He was then stationed at Muthangari Police Station but currently attached to Kangemi Police Station, in charge of crime branch.
On 16th November 2022 at around 10:00 am whilst attending a security meeting he received a call from his colleagues at Muthangari Police station, because he was the duty officer and was informed that there were people who had made a report with regards to a death incident.
He picked a scene of crime officer, PC. Kiogora who was also present at the meeting and proceeded to the scene. Upon arrival he stated that he met his colleagues. When he entered the room he saw the lifeless body of a Chinese national. The scene of crime officer processed the scene as required. They experienced some difficulty pulling the bed to one side and therefore had to peep below and saw what appeared to be heavy bags. They managed to move the body and returned to look into the bags and saw ivory. This immediately raised further suspicion and therefore decided to search the whole house.
The change of circumstance from a sudden death incident to finding wildlife trophies prompted him as the senior most officer at the scene to inform his superiors who include OCS, OCPD & DCIO, all of whom came to the scene. It was his oral testimony that he made the following discoveries:
– Room 1 had 68 pieces of ivories in three (3) bags.
– Room 2, directly opposite the 1st room, had a bag with 10 pieces of ivory and briefcase with 2 rhino horn (one very large the other very small).
– Room 3, adjacent to the deceased’s room, was occupied by the accused person who confirmed it was her room, her clothes were also in the room. The room was searched and lion claws and teeth were found in the wardrobe.
– On the balcony an electric saw was discovered.
PW 5 stated that hacksaws were found in the 2nd room and some in the sitting room. Three mobile phones were discovered in the deceased room (1st room) and they included:
– Lenovo marked 21A
– Huawei marked 21B
– China mobile marked 21C
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#23. August 8th, 2023, (Hearing):
The hearing proceeded at approximately 14:30hrs with two witnesses for the prosecution; an employee at the apartment complex (PW1), and Corporal Daniel Bitok (PW4), a general duties officer who was the first police officer to attend the scene.
Testimony of PW1: who had previously testified that he was approached by the accused, Hoang Thi Diu, on the morning in question and requested to assist with a room mate in the apartment. He went to Apt C-13 with the accused and found Yang Chang Gui apparently dead on the bed. He knew Yang as an occupant of that apartment.
He and the accused then went to the Muthangari Police Station to report the death.
They gave a statement and returned to the apartment. He and manager (PW2) carried Yang’s body to the police vehicle while the police searched.
He returned to the apartment to find the police recovering elephant tusks from the deceased’s room. The police showed PW1 the 3 bags they found containing elephant tusks.
The police continued their search and next went to the room (master bedroom) of Mr. Ali, who PW1 believed was presently out of the country. PW1 further stated that he had known Mr. Ali since 2021 and he was a friend of the deceased. He only knew him within the confines of this compound and he was not there all the time.
Mr. Ali’s room also contained wildlife trophies including one bag of elephant tusks and one with two rhino horns.
PW1 stated that did not accompany the police to the accused’s room. He said that he had known her for about 1 month and that a Chinese man and woman had stayed there before that. He said the police came out of the room with various lion teeth’.
On todays’s date under cross examination, he stated:
– that the unit had 4 rooms being the bedrooms of the deceased, Mr. Ali, and the accused. There was also an SQ (servants quarters).
– the unit was registered under the name of the brother of the deceased. The deceased only paid the water and electricity bills.
– Could not state exactly for how long the accused person had stayed in the apartment complex.
– Never saw the occupants of the unit bring in with them suspicious objects.
– Said he knew the room in which the accused person stayed in.
– Couldn’t tell whether there was anything discovered in the accused’s room.
Testimony of Corporal Daniel Bitok (PW4): a general duties officer at Muthangari Police Station who stated that on the 16th November 2022, three individuals come and made a report about a person who died in the house. Himself together with his colleague, Vellar Ayodi, visited the scene and found a lifeless body. He informed the duty officer, Inspector Stephen Muriithi who arrived shortly accompanied with the scene of crime officer.
He found the following in room 1 (deceased):
three travelling suitcases under the deceased bed, upon opening the suitcases found in total 70 pieces of ivory tusks, cumulatively.
Suit case E contained 16 pieces of ivory
Suit case B contained 21 pieces of ivory
Suit case D contained 33 pieces of ivory
In Room 2 (Mr. Ali) : one suitcase bag containing 10 pieces of ivory and a second suitcase containing 2 rhino horn, 2 small white sculptures, and a glass jar with an unknown whitish substance, two rubber stamps and a stamp pad. Also in the room were 2 hacksaws and an electric saw.
In Room 3 (accused): found in a topmost cupboard
– 65 pieces of lion teeth;
– 160 lion claws; and
– One piece of thick skin, from an unknown animal.
Note: all above items placed on the floor in front of the magistrate except for the lions teeth and claws.
During cross examination, it was established that the witness had prepared two different inventories of items taken from the scene. The one he presented to the court did not include three mobile phones or a printer that were not deemed to be relevant to the case.
Hearing to continue on August 10th.
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#22. August 3rd, 2023 (Mention): The purpose of today’s mention was for the court to establish whether Mr. Auta was still counsel for the accused and take further direction on how the case will proceed.
Present in court was the accused person, the interpreter Mr. John Mwangi and a new counsel , Mr. Muchiri, who stated he will take up the role of defence counsel on a pro-bono basis. Mr. Muchiri requested the court to be furnished with all documents the prosecution sought to rely on in this case. Furthermore, that the court issue a further mention date to confirm all the said documents were served upon him.
Principal Magistrate Kiage gave the following directions:
– All three (3) prosecution witness who had testified will be recalled and on the set hearing date the witnesses will not testify again but will only be cross-examined.
– All documents the prosecution will rely on will be passed to Mr. Muchiri before the hearing date and the accused person will counter sign beside her advocate on the date of the hearing.
– Previous proceedings to be typed.
The matter is adjourned for hearing on August 8th at 13:00hr.
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#21. August 2nd, 2023 (Hearing): Today was scheduled for a fresh hearing and the prosecution had two witnesses, the interpreter was present, as was the accused. Advocate for the accused, Mr. Auta, however, was not. The prosecutor advised the court that attempts to contact Mr. Auto had been unsuccessful.
In light of the defence counsel’s unknown whereabouts, todays hearing was adjourned and that scheduled for tomorrow has been changed to a ‘mention’ so as to set another date for a hearing.
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#20. July 31st 2023 (Hearing): (Defence counsel Auta missing)
The matter came up for a fresh hearing. Present in court was the accused person, however, her advocate was not present. The Interpreter present in court was Mr. John Mwangi.
Mr. Kevin, the prosecutor started off by informing the court that there was a challenge in bringing the exhibits in court from KWS HQ and therefore the matter could not proceed. He requested the Senior Legal Officer at KWS who was present virtually to explain further why the exhibits could not be brought to court.
The Senior Legal Officer (she/her) explained that they were experiencing a challenge in opening the exhibit strong room and that their security’s system service provider was not available to attend to them today. She apologized and stated the situation was beyond their control. Upon been asked by the Magistrate, the prosecutor stated that he had two witnesses who were ready to proceed with the hearing. Thereafter, the Magistrate asked the accused as to the whereabouts of her advocate and did she have anything to say with regards to the adjournment.
With regards to the whereabout of her advocate, she was not in a position to state his whereabouts because she is not able to communicate to him due to language barrier. However, the prosecutor mentioned that Mr. Auta opted to use informal means to communicate to court that he was not able to proceed. The Prosecutor further mentioned that the defence counsel instead, sent a text message to the interpreter informing him that his expectant wife was sick and therefore would not be available to attend court today. Consequently, the court adjourned the matter to August 2nd at 1:00 pm.
The accused person in a pitiful manner, informed the court through the interpreter that her host who had been helping her, had ceased to do so and that she takes an Uber each time she comes to court which is expensive. Given the fact that she is currently not earning because her passport is ceased and that she has run out of cash.
The court granted an adjournment. Additionally, the court in its own will, stated that it will facilitate the accused person’s transport cost to a tune of Kshs. 1,500 provided that she brings with her a receipt.
Hearing dates set for August 2nd and 3rd at 1:00 pm.
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#19. July 25th 2023 (Mention): The matter came up for scheduled pre-trial with a Mr Munene holding brief for defence counsel, Mr. Auta. The interpreter, Mr. John Mwangi, appeared virtually.
It was witnessed that the accused person, through the advocate, being supplied with all the documents that the prosecution sought to rely on. The accused did acknowledge receipt by signing against all the documents listed on the list of inventory dated 25th July 2023.
The prosecutor stated at the moment he is only able to bring two (2) witnesses and will take further directions in recalling the other remaining witnesses.
July 31st at 1:00PM is scheduled for the next hearing.
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#18. July 19th 2023 (Mention):
The matter was scheduled today for mention (virtually) at 1:00pm. It was discovered at 1:45 pm after awaiting in the virtual for more than 45 minutes that the matter had already been mentioned (Mr. Auta attending virtually) at 11:00am and had been now slated again for pre-trial mention for July 25th. The court ruled today that all witnesses were to be recalled and defence to be supplied a fresh, with all documentation the prosecution intends to rely on.
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#17. July 18th 2023 (Hearing): (First day of Mr. Auta representation in court)
The matter was scheduled today for hearing at 1:00pm, however the same was called out on or about 2:30pm. The delay was occasioned by the accused person arriving late.
Mr. Kamau, the prosecutor sought to have the matter placed aside so that he could ascertain the
whereabouts of the KWS I.O who had not yet arrived with the exhibits. The Magistrate refused to indulge the prosecutor and stated if he did so he would be encouraging complacency. The Magistrate further stated that he was supposed to attend a training but choose to cancel his attendance so that he can hear this case. In response the Prosecutor sought to adjourn the case and stated that the I.O ought to come to court and explain why he did not come to court today as agreed.
Mr. Auta, stood up and introduced himself as defence counsel for the accused person. Mr. Auta
informed court that he received a request from within Kahawa Law Courts to take up this matter on a pro-bono basis. Counsel sought for an adjournment because he had just come on record and needed time to familiarize himself with the case. Furthermore, counsel stated as follows: “The accused person was not supplied with witness statements and any other documents that the prosecution is relying on.”
Additionally, Mr. Auta made the following oral applications:
– Sought for a recall of all the witnesses who testified, after having identified the accused did not
challenge the oral evidence captured on record. The accused now seeks to challenge the evidence given by the witness by way of cross-examination. He also sought to have the terms of the bail/bond amended to have the accused passport returned to her so as to allow her make a living.
The prosecutor acknowledged he did not have the police file to ascertain whether or not all the documents were served to the accused. However, he mentioned that he recalls that pre-trial was conducted. With regards to release of passport, the prosecutor stated the accused person is at flight risk and therefore opposed to the release. (There is no referral to the accused having. asecond passport).
The matter will be mentioned tomorrow, July 19th, so that directions can be taken on how to proceed, now that the accused has an advocate on record. Additionally, for the court to make a determination and respond to the application made by the defence counsel.
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#16. July 17th, 2023 (Hearing): This matter came up today for hearing of two of the prosecution cases. The accused was not represented by counsel. Court began at 08:00hr.
Present in court was the accused person and a new mandarin translator, Ms. Wanjiru. The court
observed there was some difficulty in communication between the accused and Ms. Wanjiru. Upon enquiry by the magistrate. Ms. Wanjiru explained that the accused had difficulty understanding her native Chinese dialect, since she is a Vietnamese who learned Chinese. The prosecutor stated that he does not understand where the difficulty arises and sought direction from court. The prosecutor added that he had a pressing witness, PW3-Zhu Jianpo, who was to testify.
The court explained to Mr. Zhu that due to the difficulty in communication between the interpreter
and the accused the case cannot proceed. The disgruntled and utterly frustrated Mr. Zhu explained
his displeasure of which the Magistrate took note and placed the matter aside. The Magistrate stated
he will take it upon himself to seek assistance from the Judicial Service Commission in getting a Chinese translator.
Within an hour or so, Mr. John Mwangi the replacement translator arrived. In open court, it was
established through observation that the accused and Mr. John were able to communicate effectively and therefore the matter was able to proceed.
After each of the prosecution witness testified, I observed that the Magistrate asked the accused
person whether she understood what the witness said and further explained to her if the witness
account given is not questioned by her it is taken on record to be truth.
Thereafter, the prosecution made an application to have the Court visit the crime scene and additionally, the prosecutor requested the Magistrate to make an order to the OCS Muthangari police station to make available the crime scene because the keys to the apartment are in his custody The Magistrate, advised the prosecutor that he will deal with that application on Tuesday, 18th of July
2023.
Testimony of Prosecution Witness #2 (PW2)
On 16th November, PW2 ( the manager of the Sunshine Court complex) received a call from PW1 who informed him that Mr. Young (deceased) had died. When asked by the prosecutor on how long he knew the deceased he couldn’t tell but stated that he found him at the apartment complex in his capacity as an employee.
After receiving the unfortunate call with regards to the death of Mr. Young, PW2 called Mr. Kurgat (Chairman) and Mr. Wachira (Secretary) presumably of the management company who advised him to go to Muthangari Police Station. Upon arrival at the Muthangari Police Station he was advised by the police to go get the person who saw the body. As he was leaving the police station, PW1 and the accused person were on their way to the same police station. PW2 returned to the apartment complex and waited for the police.
PW2, stated that could not remember the number of police officers who come to the apartment complex. He proceeded to the deceased apartment, he stated that the camera guy took photos and thereafter he took the body downstairs.
When he went back, found a bag full of ivory and the police started searching the whole house. PW2, further stated that the camera guy took photos of the bags. Thereafter, took the ivory from the bag and took photos of them minus the bags.
According to PW2, the police recovered four bags, however he stated that he was not present when the search was been done room by room within the apartment. Nonetheless, it was PW2’s description
that:
– Room on the right – two (2) bags were recovered
– Room on the left – two (2) bags were recovered and was able to point them out among the pile
of exhibits.
He stated that he was present when the police were removing these bags.
PW2 also stated that a search was done in the 3rd room (accused persons room) and the police found lion teeth. He knew they were lion teeth (numerous) because the police took photos of them and showed him. PW2 was able to point out the bag containing the Lion teeth and the same was marked and produced as evidence before court. Additionally, recovered from room no. 3 were lion claws, PW2 identified them and they marked and produced as evidence before court. PW2, stated after all was done, packed the bags and took them to Muthangari Police Station where he
also recorded his statement.
Below is the information provided by PW2 after additional questions were asked by the prosecutor.
– Knew the accused on the basis of her staying in the deceased apartment as well as seeing her within the apartment complex.
– Had seen the accused person within the apartment complex for a few months.
– He stays within the apartment complex and his sleeping quarters also doubles as his office.
– There are CCTV cameras installed within the apartment complex and are in good working condition.
– The security guards are the ones in charge of the CCTV’s control room.
– When he is within the apartment complex, he is able to observe the activities that occur within.
– Mr. Young, the deceased, did not have a car.
– Did not observe visitors coming to the deceased apartment.
– Knew others persons who lived in the same apartment to including: Ms. Liu Ying Liu, Ali Hussein and the accused person.
– he added that, most of the time she used to come and go but never knew where she went.
– At the gate there is a visitor register and it is in the custody of security management.
NO CROSS – EXAMINATION
Testimony of Prosecution Witness #3 (PW3)
PW3 is a Chinese national in the construction business and presently lives in Kitengela, approximately 30 km south of Nairobi.
He stated that he got a call from China that was made by the deceased brother, Yang Senior. Yang Senior, informed him that his brother had died and therefore was requesting him to go to the police station and report the matter. When asked how he knew Yang Senior, he informed the court that they met whilst he was in Ethiopia. Pw3, further told court prior to the fateful day he had never met the deceased.
PW3 stated that there were two policemen and a photographer. Subsequently, police called another team who came and took the body. Whilst in the apartment, two police officers told him to wait in the sitting room. The said police officers went into the room closed the door and undertook a physical search. After search the two police officers came out of the said room and informed PW3 that there was a serious problem because they had discovered elephant tusks. The police officers took PW3 to the said room and he said that he saw many ivories. This room, he later referred to as room 1.
Accompanied by the police officers, he proceeded to room 2 and the police found one big bag and uponbeen opened saw ivory. On top, there was a black bag, in it contained short horn and long horn, referring to the rhino horn. He was able to identify the bag and the rhino horns among the pile of exhibits. Additionally, in the second room the police opened an unlocked safe and found an air ticket.
They proceeded to the 3rd room (the accused room), the police searched under the bed, in the clothing shelves and found nothing. However, on top of the clothing shelf the police found 1 or 2 small bags and took them to the sitting room. Upon opening found small teeth which were numbering to about 30- 40.
He stated that he recorded a statement on the same day. Below is the information provided by PW3 after additional questions were asked by the prosecutor. PW3 responded as follows:
– The accused stayed in the room where the police found the small teeth.
– 1 month ago, there was a lady called Liu Ying Liu who used to stay in the same room.
– The police also found a passport in room no. 3. The person who the passport belonged to was not mentioned.
– The police became aware that the accused person stayed in room number three and told her they did not have any problem with her. However, upon discovery of the teeth, the police told the accused person that you have problem.
– After everything was concluded by the police in the apartment, PW3 requested to leave but the
police told him to stay and accompany them to the police station. At first, he was hesitant because he feared the police will pin on him the recovered illegal wildlife trophies. The police assured him that was not their intention and that he will be a witness in the case.
PW3 stated he does not know Liu Ying Liu, has never met her and does not know where she is. He wanted to lock the main door of the apartment as instructed by Yang Senior but the police did not allow him to do so.
Cross Examination
Initially, the accused persons wanted to make a statement however the Magistrate advised her to frame it in form of a question.
a. Do you know how I come to live in that apartment?
The initial response (below) made by the PW3 which made everybody laugh, was not captured on
record because it was HEARSAY evidence. This information was relied to PW3 by the accused person
whilst at the Muthangari Police Station.
“The accused is above 30 years of age and not beautiful. Therefore, she was not able to make friends and had
to put up in a hotel. However, she did not have a lot of money with her and had to look for an alternative
cheaper accommodation. Therefore, upon asking another Chinese person on where she could get cheaper
accommodation, he or she referred her to Mr. Yang (deceased). The deceased allowed her to stay in the room
for a short period of time before the original occupant retuned to Kenya
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#15. July 14th, 2023 (Hearing): Present in court was the accused person and the mandarin translator, Mr. Benson Kamau. The accused was not represented by counsel.
Testimony of Prosecution Witness #1 (PW1)
PW1 is an employee of the Sunshine Court apartment complex. He arrived to his place of work at Sunshine Court, located at Valley Arcade in Lavington. He found the accused person at the gate who informed him via a translating app on her phone that Mr. Young had overslept and therefore she wanted him to assist her to wake him up. PW1 together with the accused person, entered Mr. Young’s apartment and proceeded to his room.
PW1, knocked at Mr. Young’s door, but there was no response and he stated that he opted to push the door. Near the bed he found Mr. Young and according to his observation and personal judgment of the situation concluded that he had passed away. PW1, further explained that Mr. Young was not breathing and his eyes were out. PW1, informed the caretaker (PW2) that Mr. Young had passed away. Alone, the caretaker went straight to Muthangari Police Station.
PW1, further clarified that before proceeding to Muthangari Police Station the caretaker did not go to or enter Mr Young’s apartment. PW1, further stated that he called the plumber and he ascertained that Mr. Young had passed away. I would assume the plumber was a resident plumber or by chance was working within the premises on that day.
When asked by the prosecutor where the accused was all this time, he mentioned that all along she was standing at the balcony. PW2 returned from Muthangari Police Station alone. Thereafter, PW1 together with the accused person were driven to Muthangari Police Station by a Chinese man (according to PW1, he owned the vehicle). When asked about the Chinese man, by the prosecutor, he stated that the Chinese man introduced himself but forgot his name. PW1, further stated that he did not know who informed the Chinese man, what was going on, according to him he just saw him at the compound.
At the Muthangari Police station, PW1 together with the accused person recorded their statement. When asked by the prosecutor, he could not tell whose name was recorded on the OB (Occurrence Book). Thereafter, they all returned, now accompanied by two (2) police officers. Both of them led the police officers to the deceased room. PW1, further stated that one of the police officers took photos whilst himself and the accused person were present in the room.
Thereafter, everyone walked out of the room and subsequently a police car arrived with a driver and one additional police officer.
PW1 together with another individual named Brian as well as two (2) police officers went back to the apartment to take the body of the deceased. When asked by the prosecutor PW1 emphasized that the 4 police officers did not carry anything with them whilst going up to collect the body. It was PW1 and PW2 who carried the deceased body back to the police car. PW1, further added that some officers remained in the house as they brought the body down to the Police car. After taking the deceased body to the police car, PW1 returned and found the police who had remained searching the deceased room.
PW1, stated that the search resulted to the police finding wildlife trophies (Elephant tusks) in the deceased room. The police showed PW1 their finding and that PW1 saw three (3) bags but could not recognize them among the exhibits laid out in court. PW1 clarified that when he was initially entered the room to apparently wake Mr. Young, he did not see the subsequently discovered bags. PW1, did inform the Magistrate that he saw inside the bag and they were indeed elephant tusks.
After discovering of elephant tusks in the deceased room the police searched the whole house. The police proceeded to the master bedroom which PW1 informed the magistrate belonged to Ali Hussein who at the time was out of the country (name of the country not mentioned). PW1, further informed the Magistrate the rooms were open because the locks were not working therefore the door was not lockable.
When asked by the prosecutor to tell the Magistrate more about Ali Hussein, he stated:
He was the friend of the deceased, PW1 knew Mr. Ali since 2021, first met Mr. Ali in this house, the deceased house, could not tell how often Mr. Ali come to Mr. Young’s house, and his interactions with Mr. Ali were only within the compound or the deceased apartment.
When PW1 was asked by the prosecutor how he knew the master bedroom belonged to Ali Hussein, he stated he could tell as it had the personal belongings of Mr. Ali, furthermore, he used to enter the apartment when he was called to buy items from outside e,g. salt.
From Ali Hussein’s room, all the bags containing wildlife trophies were moved to the sitting room area. Additionally, in Ali Hussein’s room they found passport and horn (rhino horn). PW1, clearly remembered the number of bags removed from Ali Hussein’s room were two (2) and was able to point them out among the exhibits in court. PW1, stated the bags contained elephant tusks and two massive (2) rhino horns.
The police proceeded to the accused room. PW1 mentioned that he did not accompany the police to the accused person’s room. Again, when asked how he knew it was the accused person’s room he stated he used to enter the apartment and over time was able to know which room belonged to which occupant. PW1, stated that he knew the accused for 1 month.
The police did a search at the servant’s quarters (SQ) and found a machine that was referred to as a big electric saw.
Thereafter, the police moved to the balcony and this time PW1 accompanied them together with the accused person. At the balcony the police found four (4) hacksaws of assorted sizes.
In the sitting room the police found a glass jar with a closed lid which contained grinded whitish substances. The accused person was present when the police made this discovery.
After the police concluded searching of the whole house, they proceeded to Muthangari police station together with the exhibits and the body. Thereafter the body was taken to the mortuary.
After PW1 testified, the file was placed aside for the court had to attend to some urgent miscellaneous applications. Which after, this matter was called out and the prosecutor stated that the interpreter was not ready to proceed because he has to attend to some urgent matter at Kenyatta University. The prosecutor further stated that the interpreter is a lecturer at the said university and that for today, he was only available in court up to 2 pm.
The Magistrate did not take issues with the prosecutor’s request to adjourn, however mentioned that it does take note of the urgency in this case and therefore will opt to hear this case on a day to day basis, Monday to Wednesday. The Magistrate instructed the prosecutor to space out the remaining witnesses in between the allocated three (3) days.
The accused raised a few concerns. As the current interpreter will not be available next week, the accused advised court that she is not a native Chinese, only a Vietnamese who learnt Chinese and therefore had difficulty time understanding the previous Mandarin interpreter . The Magistrate informed her, they do work with the resources available and he will handle any arising issue then.
As of next week, the case will be hear between 8:00 am – 9:30 am and the accused informed court that she lives far and takes an hour to come to court. The Magistrate informed her he will not waiver the time allocated for it might eat into time allocated for equally urgent cases.
Upcoming hearing dates: 17th July 2023 – 8:00 am – 9:30 am 18th July 2023 – 8:00 am – 9:30 am 19th July 2023 – 8:00 am – 9:30 am
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#14. July 13th, 2023,(Hearing): The matter is now before Principal Magistrate Gideon Kiage in court 2. This change of courts mid-trial due to a Magistrate on leave is not a common practice and has not been observed by SEEJ-AFRICA before. Present in court was the accused person and the mandarin translator, Mr. Benson Kamau. The accused was unrepresented.
The hearing did not take place as the IO had not bonded witnesses to attend court today. Furthermore, the evidence to be adduced by some of the witnesses had also not been brought to court.
The IO assured court that he will bond all the seven witnesses for the prosecution to attend court tomorrow. Matter adjourned to July 14th for hearing.
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#13. June 27th, 2023, (Hearing): Defence ‘counsel’, Edwin Motari Oguti, was again the cause of the delay. There was confusion between the court, the prosecution and the accused as to whether Motari was to appear in person, virtually, or not at all. In the end, he did not appear at all but the prosecution was aware that he would not be proceeding.
When the case was called the second time, it was the prosecution that requested an adjournment as the IO had been called away on an emergency was unable to attend.
The matter was adjourned with hearing dates of July 13th and 14th given.
Senior Principal Magistrate Ombewa of court 1 advised the court that he was going on leave and the matter was being placed before to court 2 for continued hearing. This is a process not previously observed by SEEJ-AFRICA.
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#12. May 4th, 2023, (Mention): The purpose of today’s session was to set a hearing date. All were present except the ‘advocate’ on record for the accused.
It is believed that the ‘advocate’, Edwin Oguti, is actually Edwin Motari Oguti, who in April 2022 was
arrested in Milimani court for impersonation, representing himself as a lawyer when he was not. He was ‘representing’ a Chadian national at the time for False Pretences.
During the court session it was learned that Mr Motari was hired initially by a Chinese friend of the accused. This friend was supposed to have found another lawyer for today’s mention but the accused did not know who it was or where they were. The accused stated that she will have a lawyer by the next court date.
The matter is adjourned to June 27th for hearing.
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#11. May 2nd, 2023, (Hearing): Today’s hearing did not take place but only after three attempts to proceed. There was an initial delay with the accused being late. A second delay occurred when there was difficulty locating a Mandarin translator and the ‘advocate’ for the accused could not be reached (his phone was off) as he had promised the prosecutor.
At approx 13:00 hr, the file was called out for the third time. The court was successful in getting hold of a Mandarin translator, Mr. Benson Kamau, who appeared in court virtually.
However, the defence ‘advocate’ failed to appear in court virtually as earlier on promised and the prosecutor mentioned that he requires a further time allocation for 3:00 pm. The prosecutor further stated the defence ‘advocate’ was needed to agree on the way forward to include: getting a mandarin translator and to settle for a mention date to fix a hearing date. Nonetheless, the prosecutor informed court that he was ready to proceed and had one witness present in court.
In absentia of the defence ‘advocate’ who never appeared, the court adjourned for a mention date on 4th May 2023 for the purpose of fixing a hearing date.
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#10. March 16th, 2023 (Mention): Today was scheduled to set a date for the first hearing. It was confirmed for the defence advocate that the accused’s cash and mobile phones, seized at the time of arrest, had been returned to her on January 27th, 2023. Chief Inspector Inoti, the IO, also confirmed that the seized cash had gone toward’s the accused’s cash bail. There is no indication yet as to how much that was. First hearing date set for May 2nd, 2023.
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#9. March 15th, 2023 (Mention): This was set to take pre-trial directions and set a trial date.
The accused was explained to the purpose of the mention via a sworn translator and was subsequently served with prosecution witnesses’ statement including those of 3 civilians, Charles Inoti (IO), Cpl. David Betok, and Inspector Steven Murithi.
When the matter was called out again the defence counsel experienced difficulties rejoining the court session making it impossible for the court to issue a hearing date in his absentia.
The matter was adjourned to be mentioned virtually on 16th March 2023 to set a trial date.
It was also agreed that the accused will also attend the above mention virtually at Kenneth Kinyau’s office.
This was SEEJ-AFRICA’s first time attending this prosecution. It was established that on 28th November 2022 the accused person (lady) pleaded not guilty to the charge of dealing in wildlife trophies of endangered species. The court initially granted the accused person bond of KES 2,000,000 plus one surety of similar amount but subsequently on a later date allowed a cash bail of 150,000/- plus one contact person.
#8. March 2nd, 2023 (Mention):
#7. January 27th, 2023 (Mention): The accused’s cash and mobile phones, seized at the time of arrest, were returned on this date.
#6. January 23rd, 2023 (Mention):
#5. January 13th, 2023 (Mention):
#4. December 30th, 2022 (Mention):
#3. December 28th, 2022 (Mention):
#2. December 15th, 2022 ( Mention):
#1. November 28th, 2022 (Arraignment): Hoang Thi Diu pleads not guilty. The court initially granted the accused person bond of KES 2,000,000 plus one surety of similar amount. (At a later date this was reduced to a cash bail of 150,000/- plus one contact person.)
