Final Court Update
#24. October 30th, 2024 (Sentencing): Senior Principal Magistrate Njeri Thuku today sentenced the two accused to each serve 5 years imprisonment for each of the possession charges relating to 21.4 kg of ivory and one leopard skin. The sentences are to run concurrently.
The case ran for 18 months from arraignment to sentencing which is remarkably short, made even more surprising with the six month delay relating to the dispute over the amendment of the charge sheet.
It is hoped that this is a template that can be followed by all courts and not just an anomaly due to this being an prosecution derived from the Kenya Wildlife Task Force that has international NGO support.
Case Overview
On June 23rd, 2023, the police found the accused in Meru area and in possession of a quantity of elephant ivory weighing 25 kg as well as one leopard skin. The two accused were arraigned in the law courts at Jomo Kenyatta International Airport on June 26th, 2023.
Presiding Magistrate and Court: Hon. Njeri Thuku – Senior Principal Magistrate Crt 1 | |
State Counsel: Ms. Rono | Advocates for the Accused: Miss Julia Mukundi |
Accused: 1. Martin Kinoti Kimbere 2. Douglas Mutee (Mutembei) | |
Charged:
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Date of Arrest: 2023-06-23 | Date of Arraignment: 2023-06-26 |
Location of Arrest: Meru | Contraband Seized: 21.4 kg (changed from 25 kg) + leopard skin |
Proceedings
#17. August 13th, 2024 (Hearing): Today’s hearing did not take place and was adjourned to September 2, 2024.
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#16. June 3rd, 2024 (Mention): Summary – It was learned today that the High Court has overturned Magistrate Thuku’s ruling that disallowed the amendment of the charge sheet in this case. The hearing will proceed next on August 13th.
Full Story by E. Gutu
In a significant development of the case E043/23, the High Court has overturned Magistrate Thuku’s ruling that disallowed the amendment of the charge sheet in this case. The High Court’s decision permits the prosecution to proceed with the changes, a move that marks an interesting turn in the ongoing proceedings.
Today’s court session started promptly at 9:30 a.m., with Hon. Thuku on the bench. Today’s mention was primarily held to announce the High Court’s decision regarding the prosecution’s application to amend the charge sheet. The application had previously been denied by Hon. Thuku, prompting the prosecution to seek intervention from the High Court.
The prosecution informed the court that the High Court had indeed granted permission to amend the charge sheet, a ruling that was confirmed by Miss Mukundi, the defense lawyer, who stated that she received the High Court’s decision last week.
Following this confirmation, Hon. Thuku scheduled a hearing date for August 13, 2024. She directed that the accused persons be present on this date to take their plea following the amendment of the charge sheet. Moreover, Hon. Thuku emphasized the need for both the prosecution and the defence to be fully prepared to present their arguments. After the hearing, the court will decide whether the accused persons have a case to answer.
Notably, the accused persons were not present at today’s mention, as their attendance was not required.
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#15. March 20th, 2024 (Mention): Summary – this matter will be mentioned again on June 3rd to assess progress of appeal before the High Court.
Full Story by E. Gutu
Case E043/23 returned to the forefront today for a mention before Hon. Thuku at the JKIA Law Courts. The focus of today’s mention was to address the developments stemming from the case’s High Court appearance on March 18th.
On that date, the case had been elevated to the High Court in Kibera for a revision after the presiding magistrate, Hon. Thuku, denied a request by the prosecution to amend the charge sheet. The prosecution, represented by Miss Rono, informed the court today of their intention to file submissions. These submissions will be presented to the High Court, and the higher court will make the decision to either overturn Hon. Thuku’s decision or uphold it.
Consequently, a mention has been scheduled at the High Court on May 20th, where the court will review the filing of submissions by the prosecution. Additionally, another mention is set to take place on June 3rd before Hon.Thuku to assess the progress of the case at the High Court.
The accused individuals involved in this case were not required to attend today’s mention. However, their legal counsel, Miss Julia, was present to represent their interests.
This case will be in court 1 at JKIA Law Courts on the 3rd of June for a mention, as the intricate legal dance between prosecution and defense, between lower and higher courts, continues to unfold.
See editors note below under December 14th, for comments on seized ivory weight discrepancies.
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#14. March 12th, 2024 (Mention): It was learned today that the ODPP has appealed to the High Court, the decision of Senior Principal Magistrate Thuku to deny their application to amend the charge sheet. The charge sheet was initially written with the weight of the seized ivory documented as 25 kg. The request to amend the charge sheet did not come until after a number of witnesses’ had testified, including a KWS officer who stated that the weight of the ivory was 21.4 kg. Possible ramifications of the denied amendment could be the case being thrown out.
The court was advised that the appeal will be heard before the High Court on March 18th. Therefore, a mention date was set for March 20th to access directions that can be taken based on the High Court decision.
See editors note below under December 14th for comments on seized ivory weight discrepancies.
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#13. February 12th, 2024 (Mention):
by E. Gutu
The scheduled mention for case E043/23 today at JKIA Law Courts was adjourned. Reportedly, Hon. Thuku, the presiding magistrate, had to leave abruptly for an unspecified emergency, so the court was not sitting.
Despite the unexpected interruption, Hon. Thuku swiftly rescheduled the case, fixing the next mention for the 12th of March. Today’s mention had been set to address the next steps the prosecution was going to take in light of the magistrate’s previous denial of their application to amend the charge sheet. The proposed amendments were to be made after the court had heard testimonies from all witnesses.
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#12. January 31st, 2024 (Mention):
by E. Gutu
Case number E043/23 was today scheduled for a mention before Hon. Thuku. The prosecutor informed the court that they, together with the I.O who was present in court, were still in the process of figuring how to proceed with the case.
On the previous date the prosecution had asked for an extension to figure a way forward after the magistrate denied their request to amend the charge sheet. The ivory weight on the charge sheet read ’25 kg’ while the testimony before the court was that the ivory weighed ‘21.4 kg’.
The prosecution today informed the court that they needed more time to put their case together. Hon.Thuku gave them until the February 12th when there will be another mention to determine the progress made.
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#11. January 22nd, 2024 (Mention): Matter was adjourned to January 31st. (SEEJ-AFRICA was not in attendance)
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#10. December 14th, 2023 (Ruling):
by E. Gutu
The issue before Magistrate Hon. Njeri Thuku to be decided today related to the prosecution’s request to amend the charge sheet based on an application made during the previous court session. The prosecution sought to rectify an error pertaining to the weight of the confiscated ivory. The weight of the seized ivory documented on the charge sheet before the court indicated an amount of 25 kg. Testimony before the court, however, indicated that the weight was 21.4 kg, a difference of 3.6 kg.
Magistrate Thuku ruled against allowing the charge sheet to be amended, citing the extended period it took for the prosecution to present the request. The request did not come until after testimony from the 6th prosecution witness.
The two accused individuals, Martin Limbere and Douglas Muthee, were notably absent from court during today’s proceedings. Despite their absence, their legal representative, Miss Julia, stood in for the ruling. The prosecution, in light of the denied amendment, requested additional time to consult with the Investigating Officer and determine the appropriate course of action. It is certainly a possibility that these charges will have to be withdrawn.
Magistrate Hon. Thuku, in granting the prosecutions request for more time, set the next mention date for the 31st of January. This extension will allow the prosecution the necessary time to re-evaluate their strategy and present a way forward to the court. Hon. Thuku also emphasized the importance of the defence ensuring the presence of the accused individuals at the upcoming court date.
EDITORS NOTE: Ivory weight discrepancies in the trial process are unfortunately more common than one would think. An example, as in this case is where testimony from witness(es) as to the exact weight of the ivory is contradictory to what is documented on the charge sheet. While some is certainly human error, or perhaps a difference between calibrated and uncalibrated weigh scales used by the National Police Service and the Kenya Wildlife Service, it would be naive to believe that there was not an element of corruption and theft involved.
In a 2021 case presently before Kahawa courts, the ivory seizure weight was documented initially as 100 kg. It became reduced to 62 kg. In a 2023 case in JKIA courts and in front of Hon. Thuku, the initial charge sheet read 113.75 kg but was amended on request to 110.5 kg. The difference between that prosecution and this one is that the request from the prosecution came early in the trial process and before any witness had testified.
The majority of these discrepancies are under 10 kg. From a monetary perspective, and at the low end, 1 kg of ivory can sell for KES 10,000, not small money to the average Kenyan. But the ivory weight discrepancies also speak to integrity of process and not favourably.
Perhaps not surprisingly, the author, who has been following ivory cases in Kenya since 2015, has never seen a charge sheet amendment increasing the weight of the ivory from the original amount seized.
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#9. November 27th, 2023 (Mention – Application): Both accused were present for the hearing of an application to amend the charge sheet. The charge sheet originally documented the weight of the ivory as 25 kg, however, it was revealed that the actual weight of the ivory was 21.4 kg. It has also been requested that the value of the ivory therefore also be amended on the charge sheet.
Defence counsel vehemently opposed the amendment, arguing that the entire trial had been based on the erroneously recorded weight of 25 kg. She contended that changing it at this stage would be highly irregular. The prosecution, on the other hand, defended the move to amend the charge sheet. They argued that the witnesses, including the expert witness, testified to the correct weight of 21.4 kg. The prosecution suggested that if the defence had concerns about the witness testimony, they should recall the witnesses for cross-examination. However, the defence showed no interest in pursuing this option.
Defence counsel also questioned the delay in amending the charge sheet, deeming it injudicious to her clients. Hon. Thuku inquired about the discrepancy and the prosecution explained that, at the time the charge sheet was drawn up, the ivory had not been weighed by the Kenya Wildlife Service (KWS) expert. However, the prosecution did not elaborate on who initially weighed the ivory pieces and provided the erroneous figure. Hon. Thuku pointed out the oversight in delaying the amendment of the charge sheet and expressed concern about the situation.
The ruling on the application to amend the charge sheet is scheduled to be delivered on the 14th of December.
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#8. November 8th, 2023 (Hearing): The hearing continued with two prosecution witnesses today.
The first witness was from KWS. He testified that on the 27th of June he received a call from a superior instructing him to take over a case involving wildlife trophies. He stated that he was presented with, from what he could deduce, two elephant tusks and a leopard skin. He said he proceeded to weigh the two pieces of ivory and found out their total weight was 21.4 kg. This is an inconsistency from the weight on the current charge sheet which documents the weight of the ivory as 25 kg. The three items were presented in court as exhibits.
The second witness was a DCI officer from Meru office. He testified that on the 23rd of June about 2.30 in the afternoon, he received instructions from officers from special crime unit to take photographs of a vehicle that had been intercepted transporting wildlife trophies. He testified that the vehicle in question was a Probox, white in color, and bore the license plate number KDB 344R. He further testified that he took 24 photos in total, which were long shots, medium shots and close ups. The photos showed the outside of the vehicle, the inside of the vehicle, the bags containing the exhibits which were in the vehicle and the contents of the bags still in the vehicle.
The prosecution did not wish to close the case today as they wanted to first amend the charge sheet to represent the actual weight of the ivory and also it’s estimated value. The prosecution also requested for 7 days to file submissions.
The defence submitted their submissions today. The defence attorney was asked if she was comfortable submitting the submissions today before the amendment of the charge sheet and she said she was. Next Mention date of November 27th.
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#6. September 28th, 2023 (Hearing):The scheduled hearing continued today with testimony from two witnesses. Both accused were present with counsel.
The first witness was from the expert from NMK who presented evidence that the two tusks were elephant ivory and the seized skin was from a leopard.
The second witness was a DCI officer who testified that he received intelligence on June 22nd, 2023, of persons in Meru county dealing in wildlife trophies. He organized a team from DCI Nairobi and set up an operation in the Kaithe area the following day.
At approximately 12 noon, he and his team arrested three people in a Toyota Probox Reg. KDB344R. A search of the vehicle revealed 2 tusks in the rear of the vehicle plus a leopard skin and panga. The three accused were initially taken to Meru DCI for further investigation and later to Nairobi where they were arraigned in court. The driver of the vehicle was not charged, reportedly having no knowledge of the trophies and being hired by the accused for transport. The three exhibits were taken to National Museum of Kenya for analysis.
The next hearing date was set for November 8th.
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#5. September 5th, 2023 (Hearing): Today’s trial continued with the testimony from two witnesses.
The first witness was from the DCI. He explained that on June 23rd, 2023, he and fellow officers conducted a planned operation. They stopped a Toyota Probox with three occupants: the driver, Patrick, along with the two accused, Mutembei and Kinoti.
During a preliminary inspection of the vehicle, the officers discovered a green sack and a black backpack in the car’s trunk. Upon further examination, they found two pieces of ivory concealed with dry grass inside the green sack, and a leopard skin in the black backpack. These items were subsequently presented as evidence in court.
The accused were taken to the Meru DCI offices for further interrogation and examination of the seized contents.
The second witness was Patrick, one of the vehicle’s occupants and an employee of Mutembei. Patrick testified that on the morning of that day, at around 9am, Mutembei (accused #1) asked him to accompany him to an undisclosed location. While they were en route, Patrick was driving, and Mutembei directed him to a petrol station in Kianjai area, where Mutembei made a phone call.
Within a short time, Kinoti (accused #2) arrived at the petrol station on a motorcycle. Mutembei and Kinoti engaged in a brief conversation, out of Patrick’s earshot, before the two suspects, Mutembei and Kinoti, left together on Kinoti’s motorcycle. Patrick was instructed to stay with the vehicle.
Patrick further testified that after approximately half an hour, Mutembei called him on the phone and provided directions to a specific location. When Patrick arrived at that spot, he found Mutembei, Kinoti, and a third person he did not recognize. On the ground where they were standing, there was a green sack, which the three individuals placed in the vehicle’s trunk. Subsequently, they all got into the car, and the unidentified third person directed Patrick on where to go next.
Patrick continued his testimony, stating that he was directed to another location where they encountered yet another person, whom he also did not recognize. This individual had a black backpack, which he handed over to Kinoti. Kinoti placed the backpack in the trunk alongside the green sack. They then departed from the scene, with the unidentified person providing directions.
Shortly thereafter, they encountered a parked vehicle partially blocking the road. Two armed men emerged from the vehicle, identified themselves as policemen, and instructed Patrick and the two accused to exit the vehicle. The officers proceeded to handcuff them and conducted a preliminary search of the vehicle. Eventually, they were transported to the Meru DCI offices.
The trial concluded. The next hearing is adjourned to September 28th, 2023.
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#4. September 4th, 2023 (Hearing): The advocate for the accused advised the court that he was missing a document and a dispute entailed with the prosecution as to responsibility for such. Hon Thuku gave both sides the day to correct the matter and to return tomorrow to continue with the hearing. Matter adjourned to September 5th.
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#3. August 1st, 2023 (Hearing): The accused Kinoti did not attend due to an unspecified emergency. As a result the previously scheduled August 7th hearing was cancelled and adjourned for a new hearing date set for September 4th.
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#2. July 3rd, 2023 (Mention): This matter was coming up today for pre-trial as well as for the court to make its determination with regards to releasing the accused persons on bail/bond. The accused persons were both present in court but did not have any legal representation.
For pre-trial, both the accused persons were supplied with documentations that the prosecution sought to rely on save for the report from the Museum of Kenya and letter from the National Transport and Safety Authority (NTSA) capturing registration particulars for the seized motor vehicle.
The court issued each of the accused person Bond of Kshs. 2,000,000/= + 1(Surety of Similar Amount) + 1 contact person.
Both of the accused persons requested for a review of bond terms, which the prosecutor opposed. The court having heard the accused persons and subsequently the prosecution sought to retain the bond terms as previously stated.
Hearing dates assigned to August 1st and August 7th.
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#1. June 26th, 2023 (Plea): The two accused pleaded not guilty to the charge before the court. This is the third ivory case to be brought to JKIA law courts involving arrests from outside the area. Case adjourned to July 3rd, 2023 for mention.
