Today’s Court Update
#51. November 14th, 2024 (Judgement): Today’s judgement did not occur as the Hon. Magistrate was in training. The new date was given in court 3 with the judgement now set for December 10th.
Case Overview
In the early hours of December 14th, 2022, and acting on intelligence, KWS officers arrested Salim Chibonja Myala and Chivoro Ndamau Chivoro in the Bugata area of Taita Taveta county. The two accused believed that they were selling 209 kg of ivory comprised of 14 tusks to an interested buyer. During the arrest, a KWS officer was stabbed by Salim Chibonja.
This seizure by KWS is the largest reported seizure in Kenya since August 2018 when 234 kg of ivory was seized in Malili town.
Presiding Magistrate and Court: Hon. C.K. Kithinji – Principal Magistrate Court 2 | |
State Counsel: | Advocates for the Accused: |
Accused: 1. Salim Chibonja Myala 2. Chivoro Ndamau Chivoro | |
Charges:
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Date of Arrest: 2022-12-14 | Date of Arraignment: 2022-12-15 |
Location of Arrest: Buguta area, Taita Taveta County | Contraband Seized: 209.5 kg |
Proceedings
#49. October 22nd, 2024 (Mention): All relevant persons were present. The two accused, still on remand, appeared through Google Meet while in prison.
Counsel for A#2 advised the court that he has filed submissions today and requests a hastened judgement. A judgement date was set for November 14th and a mention on November 7th.
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#44. August 13th, 2024 (Defence Hearing): All relevant persons were present. After that was confirmed, Hon. Kithinju advised the court that the hearing would proceed later.
Testimony of Salim Chibonja Myala
The hearing began at 11:32 am. The first accused gave sworn evidence.
He stated that he is Salim Chibonja from Embo location, in Taru, Kwale county, and works as a farmer. On 13th December 2022, he rose up and took his animals to pasture. He came back at 1:00 pm and tied the animals in a nearby area. At that time he was with his wife at home and asked her to prepare food for him. He also claimed that he had a business, selling and supplies watermelon, and there were some customers who he wanted to talk to from Makina and other places. On that day his phone was lost and wanted to communicate with his supplier from Makina.
He decided to go to see them in Makina. He boarded a matatu heading to Makina and arrived at 4:00 pm. In Makina there is three sub divisions; upper Makina, lower Makina and central Makina, and he had his customers in all division. He collected the balances from his customers and also taking some orders and headed to last place in Maili Kubwa. At that time, he was having 5000 shillings. He decided to go to the matatu stage, it was around 6pm.
He boarded a matatu and as they were waiting for other people, he saw a double cabin (vehicle) park in front of the matatu. There was a person who was outside the double cabin in a kaunda suit. He pointed at me and I stepped down a matatu headed to his place. He told me that they have been looking for someone and they were told it’s me.
They asked for my ID, which I had in my pocket and gave him. He said that ,” you are the one we are looking for ” I then asked him what was the matter, but he took the handcuffs and arrested me. The man introduced himself as a government official and I came down because I was reacting harshly. There were some people in that double cabin.
He took me inside the vehicle and they drove like they were going to Taru, though they passed and we were heading to Mariakani. Before we arrived at Mariakani, they turned the vehicle and drove back heading to Makina. At that time one of the government official was communicating with person I didn’t know, saying that we have arrested him.
I thought that maybe there were people from Makina who were supplies of same products I supply. This is because we had some quarrels with them saying, am not supposed to trade to Makina and am from Taru. We went back to Makina and they didn’t talk to me about anything. They then drove to KWS offices and told me that I was found with 2 pieces of ivory, which was a lie.
They took me to Voi police station and I slept there. The following day I was taken to court and charged with elephant tusks case of which I have been denying and still I denied.
Cross-Examination of Accused #1
Prosecutor: Who were those people who had grudge with you.
A#1: The other suppliers from Makina who farm watermelon.
Prosecutor: Officers said that you were arrested with other person, did that question arise?
A#1: Yes and I said that I was arrested alone.
Prosecutor: Where were you arrested?
A#1: Maili Kubwa, MacKinnon.
Prosecutor: Why did the officers say that you were arrested in Bughuta.
A#1: I think that’s was their report, I was at Makina.
Testimony of Chivoro Ndamau Chivoro
The accused stated that he is Chivoro Ndamau Chivoro from Kasighau, working as a farmer. He was in court because he was arrested in his house.
He was arrested at 2:00am. It happened when he heard dogs barking and when he opened the door he saw some people who introduced themselves as KWS officers. They told him that they were looking for elephant tusks and wanted to search in his house, which they did. After the search they found nothing.
The accused person then gave the court a letter (exhibit #1) through his advocate; a letter written by the accused giving details as to how he was arrested.
The prosecutor arose, saying that the letter was an ambush, that she had not received that letter prior to court. Defence counsel, however, stated that the letter had a receiving stamp from the court. The prosecutor then asked the court to give her time to go through the letter which it did.
Two and one half hours later, the case proceeded. The second accused, Chivoro, continued, stating that there were four persons who arrested him, two wore civilians clothes and two were in uniform. He said that the reason they came to his place is to search for elephant tasks, but they found nothing.
He said regarding the first accused person, he had never seen him before. When he was arrested at 2am, he was with his wife at home. The advocate asked him to explain about 14 elephant tusks that were being brought into court during hearings and he said; “I have never seen the elephant tusks, it was my first time to see them.”
Cross-Examination of Accused #2
Prosecutor: Did you write the letter?
A#2: No, I didn’t .
Prosecutor: When we’re you brought to court?
A#2: 2022.
Prosecutor: Two years later from 2022, you have brought a letter defending yourself, why did you take this time to write a defence?
A#2: I was waiting for the guidance.
Prosecutor: You were arrested by four people, how many did you see in court giving testimony?
A#2: There were four who testified, so there the one who testified, I don’t know.
Prosecutor: Why were you brought together in court and you are saying you were arrested alone?
A#2: I found the other accused person already in cells.
The magistrate asked if there are other witnesses and the advocate said there were two more witnesses.
Testimony of third defence witness (DW3)
She is Nyamvula Chivoro Ndamau, from Kasighau and works as a farmer. She has come to court because of her husband, Chivoro Ndamau, the second accused person.
She stated that on that night, they heard dogs barking and when her husband stepped outside, she saw officers, from the game park. They entered inside the house but got nothing. After that, they arrested her husband and she went outside and called her neighbour, Joseph, and told him about the issue. She said her husband was arrested in his own house.
Prosecutor:When was the date?
DW3: I really don’t know because I never studied.
Prosecutor: Do you know why your husband was arrested.
DW3: No.
Prosecutor: That is all.
Testimony of fourth defence witness (DW4)
He was Joseph Mtie Makuyu from Kasighau and has come to court because of Chivoro Ndamau testimony. Ndamau is his neighbor. He heard some shouting, and after 15 minutes, Chivoros wife arrived at his house saying that her husband had been arrested and was gone.
Prosecutor: Do you know the date Chivoro was arrested?
DW4: No, I don’t remember.
This concluded defence testimony. The court gave a date for the filing of submissions for September 12th and a mention date of August 28th.
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#43. July 30th, 2024 (Mention): The court set a defence hearing date of August 13th.
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#42. July 16th, 2024 (Ruling): The court ruled today that there is a case to answer for the defence. A mention date was set for July 30th to set a defence hearing date.
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#41. July 1st, 2024 (Mention):The court has set a ruling date for July 16th to decide whether the defence has a case to answer .
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#40. June 3rd, 2024 (Hearing):Today’s case came up for a hearing before Hon. C. Kithinji. The matter was held in courtroom 3 and all parties to the case were present. The ivory exhibits were in court.
Observed by SEEJ-AFRICA for the first time, the expert witness from the National Museum of Kenya, Dr. Ogeto Mwebi, testified virtually. He was the only witness. This practice, if continued, would be a promising step to shortening trial time and eliminating unnecessary expense.
Testimony of Dr. Mwebi: In this case, on 6th January 2023, an officer from KWS Tsavo East sent 14 pieces that were to be tested to ascertain whether they were elephant tusks. The pieces were marked as M1 to M14. The tests confirmed that they were elephant tusks from 8 elephants.
He then wrote a report on 6th of January 2023, and sent it back to the KWS officer. In that report he signed showing its from National Museum. He gave that report as an exhibit number 8.
Prosecutor: Apart from elephant tusks, did you receive any other parcel.
Dr Ogeto: Yes, An inventory (exhibit #5)
1st Accused Cross examination
A#1: After you had done the testing and you knew this ware elephant tusks, did you do dusting of fingerprints to know the owner?
Dr Mwebi: My work was to check and confirm if they were elephant task so I did not do the dusting fingerprint.
A#1: According to other people who testified, the accused person was arrested with two tusks did you receive 2 tusks.
Dr Mwebi: No I did not receive because in this case, I received 14 pieces.
A#1: According to other people who testified, said that they had collected the tusks from unknown place, were they the one they brought.
Dr Mwebi: I don’t know where the tusks were brought from. needed My work was to check the pieces if they were elephant tusks of which I did.
The Defence Counsel cross examination for 2nd accused
D/C: You claim you have done this work for 33 years, have you given any form of documents to show your rank or position?
Dr Mwebi: No , I haven’t given because I have not been told by court to give the documents.
The prosecutor said that was the end of the testimony and she will be depending on the testimony already given. The court then asked the accused persons to hand in their submissions.
The court gave a date for submissions as at June 18th, 2024.
Note: Submissions date changed to July 1st.
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#39. May 16th, 2024 (Hearing): The hearing did not take place. The prosecutor advised that she had no witnesses to proceed. She requested more time. The court adjourned the matter to June 3rd.
There has been confusion in Voi courts for over a week as court 2 has been utilized for land dispute cases. Regular matters are being heard in Magistrate’s chamber.
#38. May 9th, 2024 (Mention): Administration mention for the accused in custody. Hearing date still set for May 16th.
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#37. April 25th, 2024 (Mention): The court gave another mention date of May 9th and hearing date of May 16th.
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#36. April 11th, 2024 (Mention): SEEJ-AFRICA was not in attendance but it appears that the matter was given another mention date of April 25th from court 3, the assumption being that court 2 was not sitting.
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#35. March 28th, 2024 (Hearing): This was initially meant to be a hearing date but was seemingly changed when the sitting magistrate became aware that she would be absent on a leader’s conference.
The advocate for the accused advised the court that he had not been made aware of the change and was prepared for a hearing. The court initially gave a hearing date of May 14th but the first accused challenged that, stating that the case had already taken too long. The advocate for the second accused also stated that he was in Mariakani on that date.
The court gave a mention date of April 11th to set a hearing date.
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#34. March 12th, 2024 (Mention): Administrative mention relating to accused in custody. Hearing date still set for March 28th.
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#33. February 22nd, 2024 (Mention): All parties to this case were present. Salim Chibonja Myala, the first accused, asked the court to order the first KWS witness (arresting officer), to bring the phone number that he had used to communicate with him.
The Magistrate then asked him why he had not brought up this issue before when he was testifying. The court gave a next hearing date of March 28th, 2024 with a prior mention of March 12th.
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#32. February 8th, 2024 (Hearing): Before Principle Magistrate C. Kithinji, hearing of the matter where the accused Salim Myala and Chivoro Ndamau were found dealing in Ivory continued.
The Prosecutor said that he had 2 witnesses. One of them was PW3 who had already given his evidence but had some questions to answer.
PW3.
He is said he was a ranger from Tsavo East National park. He has an experience of 16 years and his main work is to protect and take care of parks. He came to answer the question about assault on sergeant Ahmed.
A#1: Did you see me injuring Ahmed?
PW3: No, I saw him bleeding and you were the one he had arrested and you had a knife.
A#1: Did you see the weapon that was used?
PW3: Yes, it was a knife.
A#1: Did you do the dusting, fingerprint for that knife to know whose it was?
PW3: No, I didn’t .
Prosecutor Making Confirmations and Clarifications
Prosecutor. Did you see the accused person?
PW3: Yes.
Prosecutor: Did you see the accused person holding knife?
PW3: Yes I did.
Prosecutor: Who took knife from an accused person?
PW3: Ranger Emmanuel.
Prosecutor: Did you see them struggling with Ali?
PW3:No.
Witness Testimony on Assault
Sergeant Jessica : Works at Voi police station. She is the Investigating Officer on the assault charges.
On 16th December 2022, when she was in a crime office, Ali Ahmed stepped in with some officers and complained that he had been assaulted.
He had some injuries 0n collar bone near his neck. He claimed that he had been discharged from Moi referral hospital. Sgt Jessica went though the documents and saw that they were the officers from Kenya wildlife service and the complainant was under Intelligence unit.
The Sgt inquired on what had happened; On 13th December at around 8pm Ahmed got a call from his informer that there were some people selling elephants ivory and they were looking for a buyer.
The informer connected him with the seller and Ahmed pretended to be a buyer. He took some officers and went to the scene. When they arrived at Bughuta junction, they met one person with a motorcycle who escorted them to a place and giving directions on how to get to their destination he turned around. The officers drove for some few minutes and then saw three people who told them to stop.
Sergeant Ahmed stepped out and asked whom he was talking to and Salim Chibonja introduced himself. The three people walked to the place where the tusks were and agreed on price. Then sergeant Ahmed, asked them to help him put the luggage in the car.
Two people were in front Sergeant Ahmed and another was behind him. When they arrived at the vehicle Ahmed jumped to Salim Chibonja and arrested him and that’s when he was attacked. Other officers stepped out and one of them helped Ahmed arrest Salim, while others arrested Chivoro ndamau and one suspect was escaped.
Then they took all other tusks and drove back to Voi. Then they took suspects to court and Ahmed to the hospital.
Sgt Jessica, gave following as exhibits.
•A knife.
•P3 certificate.
•Treatment certificate from Moi Referral hospital.
Here are some questions from the prosecutor to Jessica.
Prosecutor: When did you handle the knife?
Jessica: After starting following the case.
Prosecutor. Did you see documents from the hospital?
Jesca: Yeah, the one I have given as exhibits.
Prosecutor: Did you interrogate the suspect?
Jessica: No, this is because he was already in prison so it was hard for me to reach him. I had also sent a letter to Voi police station to allow accused person to come so that I can interrogate him in the crime office but he didn’t .
Prosecutor: Did you know the suspect.
Jesca: No I knew him the day he was brought in court and sergeant Ahmed told me that was the man who attacked and injured me.
A#1 Cross Examining madam Jessica .
A#1: Did the officers tell you when they were going to carry out the operation?
Sgt Jessica: No.
A#1: Did you witness what you said in court or you were to
Sgt Jessica: I asked the officers.
A#1: where you there when the suspect attacked Ahmed with knife?
Sgt Jessica : No I wasn’t .
Defence counsel for A#2 Cross Examining PW4 ( Sgt Jessica)
Defence Counsel: were you at the scene of crime?
Sgt Jessica: No.
Defence Counsel: Were did you get all that information?
Sgt Jessica: I asked the officers.
Defence Counsel : As an investigating officer did you reach the scene of crime when doing your search?
Sgt Jessica: No.
The prosecutor closed by saying there is one more witness and asked for another hearing date. The accused persons asked for closer date.
Therefore the court gave a mention date as at February 22nd, 2024 and the hearing date as at March 28th, 2024.
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#31. January 25th, 2024 (Mention): Administrative mention, hearing date still set for February 8th.
#30. January 11th, 2023 (Hearing):
Today’s scheduled hearing took place with testimony from the KWS IO in this matter. Two other witnesses were also scheduled to testify but were unavailable. The second accused was represented by counsel, Mr. Mwawasi, and the first was not represented.
The KWS IO (PW3) testified that on the evening on December 13th, 2023, they received intelligence of two persons selling ivory in the Maungu area, (approx 35 km south east of Voi). They put together two teams in two vehicles. When they arrived at the scene, first Salim Chibonja Myala was arrested and then Chivoro Ndamau. Chivoro took them to the ivory. The operation took place between 11pm on the 13th December and 02:00 on the 14th.
When they returned to the KWS office at Sofia, the witness asked A#1 questions. PW3 was told that the accused was from Egu village and he had planned this sale with his grandfather, to happen on 13th December in the Bughuta area (approx 20 km south west of Maungu). Chivoro also had two pieces of ivory and he would get his share.
The KWS team prepared the weighing certificate and an inventory that was signed by both accused. They measured all 14 pieces of ivory which amounted to 209.5 kilograms. There were also a knife and phone from Chivoro Ndamau trousers. An exhibit memo was completed for the ivory examination at NMK. The two accused were taken to court for plea on Monday.
PW3 presented the following exhibits: weighing certificate, inventory, knife, the 14 pieces of ivory weighing 209.5 kg, and a black Itel phone seized from Chivoro Ndamau. The court then went outside the court where the ivory was displayed.
Cross-examination by the first accused – Salim Chibonja Myala
A#1: Were you there at the scene?
PW3: Yes.
A#1: Were you the one who arrested me?
PW3: No.
A#1: Were you there when I was arrested in Makina?
PW3:You were arrested in Bughuta, not Makina.
A#1: Pw1 and Pw2, said that we were communicating with them. As an investigator do you have the number we used to communicate with them, and any records ?
PW3: For me I don’t have the number or recordings.
A#1: Did you see the bush where you say that we had hide the Ivory.
PW3: Yes.
A#1: Do you have any picture of that place?
PW3: No I didn’t take it, but I have gps coordinates of that place.
A#1: Did you see PW1 been injured with knife?
PW3: No I saw him bleeding.
A#1: You said that I gave you information that we had planned to sell the ivory on 13th at Bughuta, kindly give the records or evidence about that.
PW3: I didn’t record, I just took your ID and I also wrote what you said.
A#1: became angry and started asking questions repeatedly. How long have you serve as an investigator, do you know me? Did you arrest me? Did you see me talking to PW1? Did you give me that number? Do you know your work?
Cross-examination by counsel of the second accused – Chivoro Ndamau Chivoro
Advocate A#2: Where did you arrest Chivoro ndamau?
PW3: At Bughuta
Advocate A#2: Why does exhibits number seven weighing certificate has no stamp and it’s for the government.
PW3: This is because it already have a logo.
Advocate A#2: Why does a memo have a logo and a stamp.
PW3: This is because when we took a memo to the museum, the doctor put his stamp and not us.
Advocate A#2: Which type of machine was it used to to measure the ivory and why didn’t you bring it in the court.
PW3: This is because it’s not portable, it’s called a calibrated machine.
Advocate A#2: Why did you write ivory A1 to A14?
PW3: This is because we did not want to mix with others, it helps us get them quickly in store.
On conclusion, the prosecutor requested another hearing date. Both accused requested a near date due to them having been in custody for so long (13 months). Principal Magistrate Kithinji gave a mention date of January 25th and hearing date of February 8th, 2024.
#29. January 4th, 2023 (Mention): All relevant persons present. The accused were not represented. Hearing on January 11th as previously scheduled.
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#28. December 18th, 2023 (Mention): DNA – the court assigned another mention date of January 4th, 2024. It is believed that the hearing date is still scheduled for January 11th.
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#27. November 28th, 2023 (Mention): Today’s sitting was held in court one. The magistrate, the prosecutor, the two accused, Salim Chibonja Myala and Chivoro Ndamau, were present in court. The magistrate gave the next mention date as December 18th, 2023 and hearing date as January 11th, 2024.
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#26. November 14th, 2023 (Mention): The matter came up for mention before Hon. C.K . Kithinji. The prosecutor, the two accused were present. None of them was represented. The case is scheduled for a mention on November 28th, 2023, and a hearing on January 11th, 2023.
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#25. October 31st, 2023 (Hearing): Today’s hearing proceeded with one witness, a KWS officer who was involved in the arrest.
Testimony:
On December 13th, 2022, he received information from his boss that some people with ivory were looking for a buyer. Two teams were put together and dispatched in two vehicle to the Buguta area. The KWS team arrived at approximately 23:00 and met the two accused.
The officer pretending to be a buyer stepped out of the car, Salim Chibonja Myala and Chivoro Ndamau and one other person went into the bush to retrieve ivory. According to this witness, Salim Chibonja Myala , was the first to place the ivory in the car and that is when he was arrested. The officers were able to arrest Ndamau,however the third person managed to escape.
The accused showed the officers the rest of the ivory. These were collected and taken to Voi station for recording.The officers prepared an inventory of ivory and accused people signed it showing that they were in possession of the ivory. The weighing of the 14 pieces of ivory was done and the weight came to 209.5 kg. The inventory was presented in court as an exhibit. Also presented in court was a knife used by Salim Chibonja to attack the arresting officer.
The prosecutor asked for next hearing date. This is because there were four people who were to testify. The next mention date was scheduled as November 14th, 2023 and hearing date as January 11th, 2024.
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24#. October 19th, 2023 (Mention): SEEJ attended the scheduled mention to find that the matter had been dealt with on Tuesday October 17th. The on-line cause list indicated today’s date. The reason for the change is not known. The next hearing date is still set for October 31st.
#23. October 3rd, 2023 (Mention): Both accused were present and unrepresented. The court has set another mention date for October 19th and the next hearing date remains at October 31st.
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#22. September 19th, 2023 (Mention): Both accused were present and unrepresented. The court has set another mention date for October 3rd and the next hearing date remains at October 31st.
This has been the 22nd sitting of this case in the Voi law courts since the arraignment on December 15th, 2022.
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#21. September 5th, 2023 (Hearing): Today’s scheduled hearing took place and one witness testified, the KWS officer who acted as the undercover buyer in this investigation. He told the court of the events leading to the 02:30 hrs ‘buy’ and how he was stabbed in the chest by the first accused, Myala, during the arrest. The KWS team arrested the two accused and seized 14 pieces of ivory weighing 209.5 kg. There were others who escaped.
Today’s witness was the first to testify in this prosecution since arraignment last December 2022.
The seized ivory was set out for the court to see.
The court has set September 19th, 2023 as a mention date and the next hearing will be on October 31st, 2023.
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#20. August 29th, 2023 (Mention): Both accused were present in court and again without representation. Hearing date remains as is on September 5th, 2023.
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#19. August 15th, 2023 (Mention): Both accused were in court without representation. Principal Magistrate C.K. Kithinji adjourned for a mention date for August 29th, 2023 and hearing date of September 5th, 2023.
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#18. August 1st, 2023 (Mention): DNA – not confirmed that the scheduled hearing took place. Two witnesses were scheduled
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#17.July 18th, 2023 (Hearing): DNA – The hearing did not take place. A mention date was set for August 1st and final hearing date of September 5th, 2023.
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#16. June 27th, 2023 (Hearing): The scheduled hearing was adjourned as PM Kithinji was on leave.
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#15. June 13th, 2023 (Mention): No details beside next mention June 27th and hearing on July 18.
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#14. June 8th, 2023 (Hearing): The scheduled hearing did not occur due to an administrative error within the courts. This case was not on the cause list. The registry advised it had initially been mistakenly scheduled for July 8th which was a Saturday and as a result it was re-scheduled for June 13th for mention. The accused were not. To compound the matter, the case was also in court 2 which was not sitting today due to a Mombasa workshop.
This matter was not officially adjourned as it was not heard in a court. June 13th for mention. This case may have been moved to Court 2.
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May 30th, 2023 (Mention): Adjourned to June 8th for hearing.
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April 19th, 2023 (Mention): Details unknown but before T.N. Sinkiyian SRM in court 3.
