Today’s Court Update
#35>. September 30th, 2024 (Mention): The court has set another mention date of October 30th.
Case Overview
On November 6th, 2018, KWS officers received information of two men looking for buyers of two elephant tusks in the Kawagware area of Nairobi. A team mobilised themselves and a meet was set up between an undercover KWS officer and the vendors.
At approximately 12:30pm, the two accused approached the KWS undercover buyer and were arrested at that time. They were found to have two elephant tusks weighing 4 kg and two hippo teeth weighing 4 kg.
Presiding Magistrate and Court: Hon. A. Mwangi – Chief Magistrate Previously – J. Gandani – Chief Magistrate | |
State Counsel: Kipngetich | Advocates for the Accused:
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Accused: 1. Abdirahman Mohammed 2. Muithya Kisiru | |
Charged:
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Date of Arrest: 2018-11-06 | Date of Arraignment: 2018-11-07 |
Location of Arrest: Kawagware Shopping Centre #4, Nairobi | Contraband Seized: 4 kg ivory and 4 kg hippo teeth |
Proceedings
#34>. September 16th, 2024 (Mention): The court set another mention date of September 30th.
#33>. August 7th, 2024 (Hearing): Today’s hearing took place with the IO, Chief Inspector Charles Inoti, testifying. All relevant persons were present and the hippo teeth exhibits were also in court.
It was clear from the IO that the wildlife trophies recovered were initially 2 elephant ivory and 2 hippo teeth. But after confirmation from the National Museums of Kenya expert examination, it turned out that they were all hippo teeth weighing 8kg in total at the time of arrest.
The accused advocate, Mr. Makori, was requesting for the wildlife trophies be weighed again since they could be less than 8 kg. He brought a 2 kg sugar to be used as a weighing reference. The magistrate denied his request as the statements read weight measured 6 years ago, meaning the wildlife trophies would have lost moisture and the weight would have been affected.
The magistrate did allow Mr. Makori to take pictures of any markings on the wildlife trophies to ascertain authenticity for the next time the evidence is brought to court.
The court set a mention date of September 16th for submissions.
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#32>. July 15th, 2024 (Hearing): Today’s hearing did not take place.
The IO, CI Inoti was tied up in another court and there was an issue over the charge sheet.
The prosecution began by requesting that the charge sheet be amended by replacing the two ivory tusks seized with hippo teeth. The advocate for the defence initially objected as it was felt that witnesses would have to be recalled as they had initially testified to seizing 2 elephant tusks but the charge sheet now read ‘hippo teeth’. The two KWS witnesses were no longer in Nairobi area.
Chief Magistrate Ann Mwangi did permit the amendment so it now reads ‘4 hippo teeth’. Defence counsel has stated that they will not recall any witnesses.
The next court date is set for August 7th.
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#31>. June 5th, 2024 (Hearing): A prosecution already indicating evidence of “compromise” today provided more of the same. The charge sheet and testimony from today’s KWS witness indicated that 2 elephant tusks and 2 hippo teeth had been seized. Testimony from the expert at the National Museum of Kenya received and examined 4 hippo teeth, indicating that someone had swopped two ivory tusks with two hippo teeth. Perhaps this is a reason why this prosecution went five years before hearing its first prosecution witness.
Today’s scheduled hearing proceeded with testimony from two witnesses for the prosecution. All relevant persons present.
Testimony for KWS witness C. D.
She works in KWS HQ as the officer in charge of wildlife crime. On 6th November 2018, she received intelligence about 2 men who were said to be in possession of 2 pieces of elephant tusks and 2 pieces of hippo teeth. She reached out to one of them by phone through phone no. xxxx xxx xxx as a buyer and the accused agreed to sell it to her.
She immediately organized an operation with three other officers, Corporal E.F., G.H., and I.J. As they were organizing themselves, the seller (later identified as Muthiya in cross-examination) called C.D. to speed up the process and insisted they meet before noon in Kawangware.
She and the other officers went to the meeting point and positioned themselves for surveillance. The deal was to happen in her car so the other officers stationed themselves outside. (from when they left KWS HQ to their arrival at the meeting point, she was in constant communication with the accused and another man using the same mobile number to talk to her).
The two men arrived carrying a black bag (evidence present in court) and entered her vehicle as previously discussed. She immediately signalled her colleagues who moved in and asked the accused what they were doing. They requested the bag be opened and found 2 pieces of ivory, 2 pieces of hippo teeth, and a weight scale (evidence present in court).
The officers requested a permit, which they did not have, and then proceeded to arrest them. They were taken to KWS HQ for interview and investigation. An inventory was then prepared and signed by the accused persons willingly and all the officers who took part in the operation. The ivory was weighed and found to be 4 kgs of hippo teeth and 4 kgs of elephant ivory. They later booked the accused persons at Langata police station where the IO took over the matter.
Cross-examination
It was confirmed the phone number she used to communicate with the accused persons belonged to Muthiya. He was also the one carrying the bag.
The defense (D/C) asked if the source of the intelligence report was employed by KWS and was told no.
D/C asked if the person who provided the intelligence report led them/linked them to the accused. No, the intelligence report contained the number the accused person was using.
Testimony for Witness 2 – Ben Nyakundi – National Museum of Kenya
The witness works with the National Museums of Kenya as an analyst in the zoology department. He has a BSc in Wildlife Conservation, an MSc in Environmental Conservation, and 12 years of experience in the field. On 3rd December 2018, he received 4 exhibits marked C1, C2, D1, and D2 accompanied by an exhibit memo. It was desired that he examine them and ascertain their nature and source.
He did a physical analysis and from his examination, he determined that all four exhibits were hippo ivory. From the morphology and surface characteristics the exhibits bore typical characteristics of hippo ivory with C1 and C2 being hippo incisors and D1 and D2 being hippo canines. He prepared a report of the same dated 1st January 2019.
Cross exam
There are two methods of analysis, a physical analysis, and a DNA analysis although while analyzing one can use one or the other based on preference or requirement. In this matter, he used the physical analysis to come to his conclusion.
The physical and DNA analysis both have a 95% confidence level. Exhibits to be released to KWS for safekeeping. The next court date is the 15th of July.
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#30>. March 19th, 2024 (Mention): A hearing date was set today for June 5th. (SEEJ-AFRICA not in attendance)
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#29>. March 5th, 2023 (Hearing): The hearing believed scheduled for March 15th was discovered to be scheduled today. SEEJ-AFRICA was not in attendance in that courtroom but it is believed the hearing did not take place. The matter has been adjourned for mention to March 19th.
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#28>. December 7th, 2023 (Hearing): The scheduled hearing did not take place as the regular court one prosecutor was absent, replaced by the court 5 prosecutor. KWS witnesses were present as were the accused. The hearing has been adjourned to March 15th, 2024.
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#27>. October 23rd, 2023 (Hearing): All parties present including defense council, Mr.Matata, who was also holding brief for Mr. Obuya of the 2nd accused.
A KWS officer testified that on 6th November 2018 while in the office at around 11:00hrs, he/she were advised by colleague, Officer Gladys, that a call had been received of two people at Kawagware area 4 in possession of wildlife trophies and looking for a buyer. Two officers and Gladys left for the scene. Upon reaching the area the two officers alighted from the car while officer Gladys remained to direct the suspects where she was parking.
At around 12:00hrs the KWS witness observed two people carrying a black bag who approached and entered the Gladys vehicle. She signalled the backup officers, who hurried to assist with the arrest.
The black bag carried by the suspects contained two blue carrier bags, one had two elephant tusks, and the other had two hippo teeth and a weighing machine.
The officers escorted the suspects to the KWS Langata to record their statements whereby they were interrogated by Chief Inspector Kinoti. The suspects were arraigned the following day and the ivory and hippo teeth exhibits taken to NMK for further investigation.
At the conclusion of the testimony, the Prosecutor was advised to summon all the remaining witnesses to appear before the court on the next date since it as it was the last adjournment.
Next court date 07th December 2023 for hearing.
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#26>. August 11th, 2023 (Mention): Today’s mention was to set a new hearing date. Both accused present and new date set for October 23rd.
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#25>. July 31st, 2023 (Mention): DNA (did not attend)
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#24>. July 19th, 2023 (Hearing): Today’s hearing did not take place due to mass demonstrations throughout Nairobi and major urban centres throughout Kenya
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#23>. June 8th, 2023 (Hearing): Both accused persons were present in court however none of their counsels were present. The advocate who was sent to hold brief for both their advocates stated that they were unable to appear because one was indisposed and the other was outside the country.
The prosecutor Mr. Musyoka on his part was ready to proceed and had 2 witnesses available.
The court took note of the fact that this is a 2018 case and observed a pattern where in one instance it is the accused persons who are not ready to proceed and in the next instance it is their counsel who is not ready to proceed. In response to this the Magistrate acknowledged that the delay is brought about by the defence and issued them with the last adjournment.
Since arraignment, not one person has yet taken the stand to give evidence.
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March 14th, 2019 (Hearing): This case was found by chance in court #1 before Chief Magistrate J. Gandani.
The 2 accused were being represented by different lawyers, one being former Garsen MP Danson Mungatana.
There were three KWS officers in attendance, one being KWS Gladys and she had some ivory with her is a sisal bag. They were sitting on the front left bench. KWS Gladys produced at least one small tusk and was observed showing it to the prosecutor. She also had a NMK report with her.
When the case was called the prosecutor told the court that the charge sheet had to be amended. An adjournment was granted and the next hearing date set for June 12th, 2019.
