Today’s Court Update
#28. August 8th, 2024 (Hearing): Did not attend due to a declared national Maandamano day. The court set a mention date of September 19th.
Case Overview
On July 1st, 2023, in the Taru area of Kwale County, KWS mounted an operation based on intelligence that two men were looking for potential buyers of ivory. At approximately 13:45 hrs, with KWS in a surveillance position, the two accused arrived at the Taru Shopping Centre on a red TVS motorcycle with a full sack sitting between them. They were approached by KWS and on searching the sack, 6 ivory tusk pieces were found.
The passenger ran and could not be caught. While escaping he alerted locals, causing an angry crowd to gather. KWS had to fire warning shots to ward off the mob and in the process, the accused motorcycle driver was shot in the leg.
The ivory was later weighed and found to be 156 kg. The second accused who escaped was arrested on September 20th.
Presiding Magistrate and Court: Hon. M.S. Kimani – Principal Magistrate Previous – Hon. Nelly Chepchirchir – Principal Magistrate Crt 1 | |
State Counsel: A. Fuchaka | Advocates for the Accused: Mr. Kiseu for A#1 Mr. Waithera for A#2 |
Accused: Ibrahim Ndoro Tsimba Said Bimba Tsuma | |
Charges:
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Date of Arrest: 2023-07-01 2023-09-20 | Date of Arraignment: 2023-07-03 2023-09-21 |
Location of Arrest: Taru, Kwale County | Contraband Seized: 156 kg (6 piece) |
Proceedings
#24. March 8th, 2024 (P-Mention): Prison mention before Resident Magistrate Olivia Koranje. The next hearing date is slated for May 2nd, 2024 and another P-Mention for Friday March 22nd.
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#23. February 23th, 2024 (P-Mention): Prison mention before Resident Magistrate Olivia Koranje. The next hearing date is slated for May 2nd, 2024 and another P-Mention for Friday March 8th.
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#22. February 9th, 2024 (P-Mention): Prison mention before Resident Magistrate Olivia Koranje. The next hearing date is slated for May 2nd, 2024 and another P-Mention for Friday February 23rd.
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#21. January 26th, 2024 (Mention): This was meant to be what is now called a prison mention that was to be done virtually. The court was never seen to log in. The next hearing date is slated for May 2nd, 2024.
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#20. January 12th, 2024 (Mention):
This was meant to virtual but did not take place. It is known that a mention date is set for January 26th. The next hearing date is slated for May 2nd, 2024.
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#19. January 8th, 2023 (Hearing): Today’s scheduled hearing did take place with testimony from two of the three prosecution witnesses on hand. This is the first hearing in this matter since arrest initial arrest on July 1st, 2023.
On conclusion of the testimony from the second witness, the court adjourned the matter as it was late and the next matter had a minor as a witness and they had waited for long. Counsel for the second accused requested to have the bond terms for the first accused reviewed. The matter will be coming up for mention on Friday, January 12th, 2024 to review bond terms and hearing on May 2nd, 2024.
WITNESS TESTIMONY PW1
The first witness (PW1) was Dr. Ogeto Mwebi of the National Museum of Kenya. He examined the six tusk pieces on July 4th (or 24th) that had been brought to him by the KWS IO. The ivory was accompanied with the required exhibit memo dated July 1st. He testified that the 6 pieces were elephant ivory and came from two adult elephants. Dr. Mwebi was cross examined by both defence counsel:
Cross-examination by Mr. Kiseu for the 1st accused
D/C 1: have you produced any document in court as evidence of your qualifications?
PW1: No, I did not.
D/C 1: How were the exhibits delivered to you?
PW1: In a motor vehicle
D/C 1: Were there any documents that had accompanied the exhibits?
PW1: Yes, an exhibit memo.
D/C 1: When were the exhibits brought to you?
PW1: On July 2nd, 2023
D/C 1: Is there any evidence to show that you received the exhibit memo?
PW1: I signed the same on 24th July, 2023 upon receiving it.
D/C 1: Is your name captured on the exhibit memo as the person who received it?
PW1: No, my name is not indicated. My signature and the institution’s stamp are on the memo.
D/C 1: How many exhibits were brought to you?
PW1: six
D/C 1: The report that you prepared shows six tusks. Why?
PW1: If you look clearly, there are six tusks.
D/C 1: When did you examine the exhibits?
PW1: On 24th July, 2023
D/C 1: Which officer accompanied the exhibits?
PW1: KWS IO – Assistant warden Hamisi
D/C 1: What tests did you carry out on the tusks to establish they belonged to elephants?
PW1: I compared the exhibits with the specimens at the National Museum and the same is captured by the report I prepared.
D/C 1: I put it to you that the same as what you were presented with at the institution.
PW1: They are the same and, in my report, I have indicated the measurements of the exhibits.
D/C 1: What was the conclusion?
PW1: The tusks belonged to two elephants.
Cross-examination by Mr. Waithira for the 2nd Accused
D/C 2: Upon receiving the exhibits, did you weigh them?
PW1: They exhibit memo indicated they had been weighed at 156 kgs
D/C 2: According to the exhibit memo, were the pieces elephant tusks or suspected to be elephant tusks?
PW1: Suspected to be elephant tusks.
D/C 2: At first sight, could you tell they were elephant tusks?
PW1: I carried out a cross section examination on the tusks and established they were elephant tusks.
D/C 2: According to the information on the exhibit memo, where did the tusks come from?
PW1: From Taru Constituency, Kwale County.
D/C 2:: On the exhibit memo, who is indicated as the accused person?
PW1: Ibrahim Ndolo
WITNESS TESTIMONY PW2
The second witness was a KWS officer (PW2) attached to Mombasa Headquarters. He testified that his team, under the IO, met on June 30th and were briefed on the pending operation. They were told that based on intelligence, two individuals at Egib village, Taru, were in possession of tusks and looking for a potential buyer. The tusks were to be transported on a red motorcycle registration number KMFJ 792S and the transaction was to take place between 1330hrs and 1400hrs at the Taru Shopping Centre the following day.
On July 1st, 2023, the KWS team departed Mombasa in the morning and set up in a surveillance position in the Taru Shopping Centre area at approximately 13:45 hrs. Shortly thereafter, a motorcycle matching the description with two occupants arrived. The KWS team of four, approached the suspects, identified themselves, and upon searching a large bag on the motorbike, found 6 elephant tusks.
The passenger ran away and could not be caught. While escaping he alerted locals, causing an angry crowd to gather. KWS had to fire warning shots to ward off the mob and in the process, the motorcycle driver was hit by a stray bullet in the leg. First aid was carried out on the accused and the team recovered the tusks, the motorbike, two nylon sacks and two jackets. There village elder was briefed by the IO on what had happened. He accompanied KWS to Taru Police Station where the suspect was booked.
The witness produced the ivory tusks as exhibits as well as photographs of the tusks, the motorbike, nylon sacks, jackets. In addition, he produced a photo certificate, a gazette notice, an inventory, weighing certificate and chain of custody document. He was cross-examined as follows:
Cross-examination by Mr. Kiseu for the 1st accused
D/C 1: What was the source of your intelligence?
PW2: The intelligence was conveyed to me by my in-charge, Mr. Hamisi.
D/C 1: Who owns the motorcycle?
PW2: The investigating officer is the one who established ownership.
D/C 1: The first accused was the one riding the motorcycle?
PW2: Yes.
D/C 1: What was the colour of the sack:
PW2: White
D/C 1: The sacks described in your statement and the ones presented in court today are not the same.
PW2: The sack presented in court is white.
D/C 1: Who did the luggage belong to?
PW2: The suspects did not have a permit of ownership for the tusks.
D/C 1: Did you restrain the first accused?
PW2: Upon informing the suspects of their arrest, the second accused ran away and we only managed to arrest the first accused.
D/C 1: Did you inform the first accused of the contents of the inventory report?
PW2: Yes. All who were present, that is, the suspect and the arresting officers signed. In my statement, I did not capture that contents of the inventory were read out to the first accused.
D/C 1: The signatures on the inventory and exhibit memo do not match.
PW2: There is thumbprint on the exhibit memo that belongs to the first accused.
D/C 1: How did you know at the time of arrest that the tusks belonged to elephants?
PW2: Out of 16 years of experience, I could tell they belonged to elephants and we also had them analysed.
D/C 1: What did you use to weigh the tusks?
PW2: A weighing machine at the police station.
D/C 1:I put it to you that the first accused was a mere rider and not the owner of the tusks.
PW2: He was found in possession of elephant tusks together with the second accused without a permit of ownership.
Cross-examination by Mr. Waithira for the 2nd accused
D/C 2: Who was riding the motorcycle?
PW2: The first accused.
D/C 2: For how long did you interact with the 2nd accused?
PW2: 3-4 minutes before he ran away from the scene.
D/C 2: Did you spend enough time with the second accused for you to be able to identify him in court today?
PW2: No.
D/C 2: I put it to you that the two sacks before this court are not white.
PW2: One sack is white.
D/C 2: How many surveillance officers were assigned for this task?
PW2: Two officers.
D/C 2: What prevented you from shooting the second accuse when he ran away?
PW2: We were not on a shooting mission. We had been assigned to arrest the suspects and we only shot in the air to disperse the crowd that was causing commotion.
D/C 2: Did you prepare an inventory and exhibit memo to be signed by the second accused?
PW2: I was not present when the second accused was being arrested.
D/C 2: Were the tusks dusted to establish who had handled them?
PW2: No.
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#18. December 29th, 2023 (Mention): Administrative mention for accused in custody.
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#17. December 14th, 2023 (Mention): Administrative mention for accused in custody.
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#16. December 1st, 2023 (Mention): Administrative mention for accused in custody.
#15. November 16th, 2023 (Mention): Administrative prison mention for accused in custody.
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#14. November 9th, 2023 (Hearing): Today’s slated hearing did not occur. While the prosecution and counsel for the first accused, Mr. Kiseu, were ready to proceed, counsel for the second accused was not. Mr. Waithira told the court that he had only received court documents from his client the day previous and therefore had not ample time to prepare. Mr. Kiseu for A#1 was opposed as his client was in custody and felt the delay was an injustice.
The court permitted the adjournment and set the next hearing date for January 8th and a routine prison mention for November 16th.
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#13. November 3rd, 2023 (Mention): Administrative mention for accused in custody.
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#12. October 23rd, 2023 (Mention): Administrative mention for accused in custody.
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#11. October 19th, 2023 (Mention): Administrative mention for accused in custody.
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#10. October 11th, 2023 (Pre-Trial Mention): All relevant parties in attendance and both the accused furnished with relevant documents for trial. The matter is marked for hearing date of November 9th, 2023.
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#9. October 6th, 2023 (Mention): – Administrative mention for accused #2 in custody.
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#8. September 27th, 2023 (Mention): The magistrate who was transferred to Mariakani law courts, Principal Magistrate M. S. Kimani, (aka Simon Kimani Mburu) was present in court today. This matter was consolidated with E272/2023 and a second accused, Said Bimba Tsuma. The lead file will continue as E183/2023. Both accused pleaded not guilty to the charges as per the amended charge sheet. The second accused, Tsuma, had run at the time of the original arrest and was arrested on September 20th. A pre-trial mention has been set for October 11th, 2023.
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#7. September 14th, 2023 (Mention): Court 1 was not sitting as the Magistrate is on transfer and her replacement has not arrived. Matter adjourned before Hon. Olivia Onyango Koranje to September 27th for mention. It is believed that the new magistrate will have arrived.
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#6. August 31st, 2023 (Mention): This mention was scheduled for Sept 1st and brought forward to today’s date on the prosecution’s request for the purpose of serving expert documents. The accused was present (on remand) and was not represented. Adjourned to September 14th.
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#5. August 17th, 2023 (Mention): Today’s pre-trial mention did not occur as the court was not sitting with CM Chepchirchir away on training. Matter adjourned to September 1st.
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#4. August 11th, 2023 (Mention): DNA (did not attend)
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#3. July 28th, 2023 (Mention): DNA – unknown
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#2. July 17th, 2023 (Mention): Bail conditions set at 1 million bond with one surety no cash bail. Case to be mentioned on August 17th for pre-trial.
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#1. July 3rd, 2023 (Plea): The accused was arraigned for dealing and possession of wildlife trophies of endangered species. He denied the charges before Mariakani Chief Magistrate Nelly Adola Chepchirchir.
The court denied the accused bond until 17th July 2023 when a prebail report will be tabled in court.
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