PROCEEDINGS
#33. August 6th, 2024 (Hearing): Today’s scheduled hearing went ahead with one witness for the prosecution, the KWS IO for this matter. All relevant persons were present, including defence advocate Albert Makori representing all accused. The ivory exhibits were present in court.
Examination in Chief – Investigating Officer
The witness is presently an Assistant Warden at Meru National Park but was working in the investigations department at KWS HQ at the time of this incident.
On the 14th of January 2020 at approximately 18:30 hrs, he received a call from Sgt Lesumancha Laanoi informing him that two suspects had been apprehended with one escaping. The witness was requested to wait in the office to be personally briefed and to take over the case investigation.
Sgt. Laanoi and the arrest team arrived approximately one hour later with the two suspects and the 28 pieces of ivory that had recovered. The seized motor vehicle had been left at Mawe Mbili station.
The witness was advised informed him that the suspects were three but one managed to escape. In the office, Sgt. Laanoi prepared an inventory that included the ivory and motor vehicle. It was signed by the arresting officers and the suspects and given to the witness. A separate inventory of the suspects phones and SIM card recovered was prepared, signed and presented to him. A weight certificate was also prepared and signed by the sergeant.
The witness then recorded the statements of both the suspects and the arresting officers. In their statements, the accused persons stated that the ivory belonged the 3rd accused and they were only offering him transport.
He then took them to Langata police station where he booked them under OB no. 118/14/1/2020. He secured an affidavit that gave him five days to conduct his investigation but he was unable to arrest the 3rd suspect within this time so he charged the the two suspects first.
On 19th February 2020, while acting on received intelligence, officers arrested the third suspect. An inventory was prepared of the 3rd accused’s possessions, who was then processed and charged together with the other 2 suspects.
In the investigation, the witness submitted the ivory to National Museum of Kenya for analysis and received confirmation that the evidence was indeed elephant ivory.
For phone forensics, a letter dated 28th Jan 2020 was drafted and sent by Chief Inspector Charles Inoti to Safaricom requesting data on the SIM cards and phones that were recovered. The data collected showed that the accused persons communicated to each other and the location data showed that they were in the vicinity of the crime scene on the day of the arrest. He also requested details regarding the owner of the recovered car from NTSA but this information was not available.
The prosecution presented all the exhibits, inventory, certificates and letters to the court as evidence.
The witness presented photographs of the exhibits and scene of crime and in his opinion as the IO, the three suspects conspired to sell the tusks and that is why he charged them.
Cross examination
In his cross examination, the witness told the court
The motor vehicle was not in KWS HQ at the time the inventory was being prepared.
There were no officers from Mawe Mbili police station who testified in the case even though the station was used as a holding cell.
He was not aware the crime scene was tampered with.
In Mawe Mbili police station, the suspects were booked for possession of ivory in the OB and the charges changing from “possession” to “dealing” was an informed decision directed by the ODPP.
In the data collected from the suspects phones for period 10th January to 15th January , the suspects did communicate with several other people but he was interested in communications between them.
He confirmed that most of the information he is submitting and has been acting on was second hand information he had received.
There was no re-direct by the prosecution.
Defence counsel requested a return of the phones to his clients and the prosecution requested the ivory and the car keys be released to KWS through the IO for safe keeping.
The matter was adjourned for hearing on October 22nd, 2024.
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#32. June 19th, 2024 (Hearing): Today’s hearing did not take place. The scheduled hearing for case number 74/20 today at the Kibera Law Courts was adjourned due to a crucial document missing from the defence’s files. Court session began at 9:30 AM, presided over by Hon. Mwangi.
As soon as the file was called up, Mr. Makori, representing the three accused individuals, immediately raised an issue. He informed the court that the defence had not been supplied with a critical piece of evidence from the prosecution: the Safaricom data analysis report which he termed as crucial to the defence’s preparation and response.
In response, the prosecutor, who recently took over the case, stated that she was unaware of any missing documents. She explained that the previous prosecutor handling the case had not indicated that any documents had yet to be served to the defence. The prosecutor also mentioned that two prosecution witnesses, the Investigating Officer and a Safaricom data specialist, were present and ready to testify.
Despite the prosecution’s readiness, the lack of the crucial document led to a request for adjournment. A visibly unamused Hon. Mwangi acknowledged the predicament and instructed both the prosecution and the defence to meticulously compare their documents to ensure no further documents were missing.
Hon. Mwangi then rescheduled the case hearing for August 6, 2024, allowing time for the defence to receive and review the document.
by E. Gutu
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#31. April 2nd, 2024 (Hearing): Today’s hearing proceeded with one prosecution witness.
Examination in chief
The witness was an arresting officer of the 3rd accused who had initially absconded.
He stated that on February 19th, 2020, a colleague told him that they were to go to Engineer to apprehend a suspect who had yet to be arrested in this case. She gave him the description of the suspect and they started the journey to Engineer. They arrived at 8 am and at 12 noon they saw the suspect around the court premises. They then went to a nearby police station (for assistance) and later arrested Daniel Wachira Muya and took him to KWS headquarters in Langata. He was later booked at Langata police station.
Cross exam
The defence counsel inquired whether he was given the description of the accused to which the witness stated that he had not been provided with a clear picture of the accused.
He confirmed that when they arrived at Engineer law courts, his colleague went to the notice board to see without him.
He confirmed that he was not present during this initial arrest.
He confirmed that he was not present during the initial (January) arrest in the case.
There was no re-examination. The prosecution stated that the next witness was the IO who was indisposed on other official matters. She thereby requested for a further hearing date. The defence counsel had no objection.
The next hearing is scheduled for 13 June 2024. (in the days prior to June 13th, the hearing date was changed to June 19th).
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#30. February 12th, 2023 (Hearing): The scheduled hearing did not take place. The second accused was reportedly involved in a motor vehicle accident. The matter has been adjourned for hearing on April 2nd, 2024.
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#29.December 18th, 2023 (Hearing): The scheduled hearing did not take place as the Court One Magistrate, Chief Magistrate Ann Mwangi, was not sitting. All matters were moved to court 2. This matter was adjourned to February 12th, 2024.
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#28. October 24th, 2023 (Hearing): Today’s witness was an involved KWS officer. On January 14th, 2020, she and her colleagues were informed of intelligence information on a suspect who had a wildlife trophy for sale. They left for Kangundo Market and received further information that the suspects were using a white/ cream Mazda reg. KUU 955. The vehicle was located and found to have three occupants.
The driver, A#3, escaped but the other two, Thomas Muhuro and Joel Kariuki, were arrested. A search was done of the boot and three sacks were found containing ivory. The suspects were asked for permits which they could not produce. The two were then taken to the Kangundo police station where they were booked.
The suspects were escorted to KWS HQ and the seized vehicle was towed to KWS the following day.
On January 18th, the witness travelled with A#1 to find the suspect who had escaped, Daniel Wachira Muya. An intelligenc update indicated that he had been charged in another case at Nyandarua law court. The witness and others attended the Nyandarua courts the following day and Wachira Muya was located and arrested. He was taken back to KWS.
The witness also referred to vehicle photos that were presented and the seized elephant tusks weighing 55 kg that were in court.
On cross examination, the witness told the court the following:
the inventory was not done at Mawe Mbili as the did not have a weighing machine. It was done at KWS HQ.
There is no report that indicates that the vehicle is not roadworthy
Photos were taken at Mawe Mbili.
She cannot remember how long they stayed at Mawe Mbili.
The seized phones are with the IO.
The matter was adjourned to December 18th for hearing.
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#27. August 11th, 2023 (Mention): Quorum and all accused present with hearing date set for October 24th, 2023.
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#26. August 1st, 2023 (Hearing): The scheduled hearing did not take place as CM Mwangi was not sitting, being away on official business. Adjourned to August 11th for a mention to set a hearing date.
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#25. June 13th, 2023 (Hearing): Today’s hearing did not take place as the prosecution was not ready to proceed. Prosecution witnesses were absent. Matter was given another hearing date for 1st August 2023.
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#24. April 12th, 2023 (Hearing): The hearing today was scheduled for 3 witnesses but only the arresting officer testified. A second officer was on leave and the third was involved in another matter.
The arresting officer testified on the details of arrest and identified the exhibits (28 pieces of elephant tusks and noted on the towed car) and the accused persons. He noted that the 1 & 2 accused (Thomas Muhoro Ngatia and Joel Kariuki Njeru) were the first to be apprehended and then they identified the 3rd accused (Wachira). This witness seemed uncertain of some details.
The hearing is adjourned to June 13th, 2023, for a continuation and the two absent witnesses are scheduled to testify.
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March 14th, 2023 (Mention): The purpose of this unscheduled mention was to confirm the withdrawal of the depositor of cash bail (whole amount) for Muhoro Ngatia who is now in custody on a two year sentence for dealing in 112 kg of ivory. The accused was the only of the three in court, did not object to the request and the application by his cash bail depositor was allowed by Court. Next hearing still scheduled for April 12th.
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#23. February 1st, 2023 (Hearing): The sitting magistrate was on training and there was no court. It was also learned that the prosecutor for this court has been transferred to Machakos. This hearing has been adjourned to April 12th.
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#22. November 16th, 2022(Hearing): Two prosecution witnesses were due to testify but the arresting officer was not present. The prosecution went ahead with a ‘scene of crimes’ officer, She testified that she took photos of the exhibits at KWS Headquarters after the arrest. Adjourned to February 1st for the hearing to continue.
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#21. September 21st, 2022 (Hearing): No attendance but the scheduled hearing did not take place.
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#20. August 1st, 2022: (Hearing) This was scheduled for hearing. The witness to testify was the investigating officer (IO). At the time the hearing was to happen, the IO was still testifying in another ivory case in Court 9 so the case was adjourned to September 21st.
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The first two accused were arraigned on January 27th, 2020. The third accused, Daniel Wachira Muya, not until February 20th, 2020.
Due to resource challenges, as well as Covid, this case has not been followed closely post arraignment. It can be said, however, that up to the August 1st, 2022 hearing, this case has been sitting on at least 18 previous occasions.
