Today’s Court Update
#29. July 3rd, 2024 (Mention): The court set hearing dates for September 5th and 6th.
NOTE: These dates were cancelled due to Magistrate Kiage’s leave. New dates for hearing set to November 5th and 13th.
Case Overview
On December 2nd, 2022, at approximately 2230 hrs at Ola petrol station next to Galleria shopping mall along Langata road, the three accused were intercepted while in a vehicle and found to be dealing in 15 pieces of elephant tusks weighing 30.5 kg.
Presiding Magistrate and Court: Hon. Gideon Kiage Oenga – Principal Magistrate Court 2 | |
State Counsel: | Advocates for the Accused: Defence: Mr. Machina and Mr. Wainana – 1st accused Mr. Wanjala – 2nd accused Mr. Collins (Ario) for 3rd accused |
Accused:
| |
Charges:
| |
Date of Arrest: 2022-12-02 | Date of Arraignment: 2022-12-05 |
Location of Arrest: Ola Petrol Stn, Langata Rd (Galleria Mall), Nairobi | Contraband Seized: 30.5 kg – 15 pieces |
Proceedings
#28. June 26th, 2024 (Hearing): The hearing did not take place, likely as a result of ongoing demonstrations in Nairobi. Adjourned to July 3rd for hearing.
*************************
#27. April 22nd, 2024 (Mention): The court assigned a hearing date of June 26th, 2024.
*************************
#26. March 28th, 2024 (Mention): All relevant persons were present. The IO and prosecutor requested more time as the pre-trial checklist had not been reconciled. A mention date of April 22nd, 2024 to check on the progress was scheduled.
*************************
#25. March 15th, 2024 (Mention): The matter was presented before Hon. Gideon Kiage and all the accused were present in court.
Also in court was the Defence Counsel which comprised of Mr. Machina for the 1st accused, Mr. Machina holding brief for Mr. Ario for the 3rd accused and Mr. Wanjala for the 2nd accused .
A consensus was not reached regarding which witnesses to recall. The prosecution still insists that on only the specialist be recalled, while the Defence is requesting that all the witnesses be recalled. Regarding disclosure requirements, the Defence confirmed that they were provided with copies of 4 images and a certificate of photographic print.
The Magistrate settled on recalling all four witnesses because the prosecutor said it was possible to recall them but requested that the next court date be a mention to confirm everything is in order as per the pre-trial checklist.
The Next court date is which shall be Mention is on the 28th March 2024.
*************************
#23. March 14th, 2024 (Hearing): The matter came up for hearing and all parties to the case were present in court.
The prosecution, started the court session by submitting an amended charge sheet that stated the accused were found with 14 pieces of ivory and one elephant bone. The magistrate read out the charges and all of the accused pleaded not guilty. The Defence then placed an application to re-examine the witnesses, marked PW 1, 2, 3, and 4, (who have already testified) in light of the amendments made to the charge sheet. The prosecution countered this by stating that only the specialist ( can differentiate the evidence) should be recalled. They settled on the Defence examining the statements of the witnesses , selecting those which are pertinent to the ivory seizure rather than recalling everyone.
The prosecution had 1 witness in court today, from the KWS cybercrime department.
On December 2nd 2022, he was given an exhibit memo and 4 phones marked G1, G2, G3, and G4 by the investigating officer. G1 is a black Tecno phone that has 2 SIM cards, Safaricom and Airtel. G2 is a black Itel model no. 6910 that has 2 Safaricom SIM cards and 1 Airtel SIM card. G3 is a Tecno phone that has two SIM cards, airtel and Safaricom. G4 is a black Infinix phone that has 2 SIM cards, Safaricom and Airtel. He was requested to remove source messages, calls, and images from the phone. The exhibit memo also contained several numbers; he was to verify if there had been any communication with them. He prepared a certificate on the findings, but before the certificate could be submitted as evidence in court the Defence requested to be served a copy.
The reports marked G 1, 3, and 4 were submitted as PMFI 9 a, b, and c
The certificate was submitted as PMFI 10, the summary report was submitted as PMFI 11 and the phones were presented as PMFI 12 a, b, c, and d.
Cross Examination
In the cross-examination, he was questioned about the day he was given the exhibit memo since it was the same day the accused were arrested, at about 22:23 hours. He confirmed he was handed the exhibit memo on the same day although he cannot remember the exact time. He also stated that the exhibit memo does not show the relationship between the phones and the specific numbers; he had to do the analysis.
After the witness was done, the Defence requested that the case be adjourned to a later date so that they can plan themselves regarding which witnesses they were going to recall. They also stated that they had not been supplied with all of the documents (images of the evidence) even though they saw the prosecutor already had them. The prosecution had 2 witnesses for tomorrow but they argued that they should not testify, since before they recross-examined their desired witnesses.
The court was adjourned for March 15th, 2024,
#22. January 26th, 2024 (Hearing): Today’s hearing did not take place on an adjournment request from the prosecution. The remaining witnesses were not available with the scenes of crime officer on leave, the phone analyst unavailable today and the IO was having transportation challenges. He requested to have another date where all the witnesses may be availed.
The defence counsels said that they had no objection as they had been properly informed by the prosecutor before court started. The court adjourned the matter for hearings on March 14th and 15th, 2024.
#21. December 1st, 2023 (Hearing):
The hearing continued today with testimony from one KWS witness. All accused were present with their counsel.
The three accused individuals were called to the dock, accompanied by their respective legal representatives: Mr. Machina for the 1st accused, Mr. Wanjala for the 2nd accused, and Mr. Ayiro representing the 3rd accused. The prosecution initiated today’s proceedings by calling their witness, a KWS officer involved in the arrest and one of four members that surrounded the car at the Ola Petrol Station at Galleria Mall at approximately 22:20 hrs.
He detailed the events leading to the arrest, testifying that on December 2, 2022, at approximately 1800hrs, he received a call from a colleague, alerting him to intelligence regarding individuals suspected of transporting wildlife trophies near Galleria Mall in Karen. The witness said two teams were assembled to conduct an operation to apprehend the suspects. He led his team comprising himself, Corporal EO and Sergeant SO.
The witness described how they left KWS headquarters at 2200hrs heading to Galleria Mall location where the suspects were believed to be in a navy blue Toyota Succeed with license plate number KCN 866R.They arrived at Ola Petrol station at approximately 2220hrs, where they employed a ruse involving a simulated tire issue. After they spotted the suspect vehicle, the officers surrounded the vehicle and identified themselves as KWS officers.
A subsequent search revealed a yellow Manila sack concealed between the backseat passengers, covered by a blue African blanket (Maasai shuka). A closer inspection of the sack revealed 15 pieces of ivory inside the sack.
Upon questioning, the occupants, including Musa and Nyagondi on each side of the sack and Osiro in the driver’s seat, admitted to not having the necessary permits for the ivory possession. The three were promptly arrested and taken to KWS headquarters in Langata.
The 15 ivory exhibits labeled D1 to D15 were presented in court.
During the cross-examination phase, the defence raised several concerns. Mr. Machina questioned the omission of Galleria Mall as the location in the initial report, with Officer Githanda admitting to the oversight. Mr. Wanjala highlighted discrepancies in the inventory, pointing out that it lacked the signature of the officer who prepared it. Additionally, questions about the absence of photographic evidence of the suspect’s vehicle and the number of officers present during the arrest further added complexity to the case. Mr Wanjala disclosed that according to the arrest report there were four witnesses and not three as the witness had stated in court.
The court adjourned the proceedings to January 26, 2024, to give the prosecution additional time to present remaining witnesses and address the raised concerns.
by E. Gutu
*************************************
#20. November 8th, 2023 (Hearing): The hearing began at 1430 hrs due to late arrival of the 2nd accused. Two prosecution witnesses testified in court before Hon. Kiage.
PW1
The 1st witness was the National Museum of Kenya (NMK) expert, Mr. Ogeto. He stated that he is a senior research scientist with 32 years of experience and specialised in identification of animal remains and modification process.
He noted that on January 6th, 2023, a KWS officer brought to him 15 pieces of animal remains accompanied by an exhibit memo and requested him to identify them. He noted that the exhibit memo was dated 2nd December 2022 and he received it on January 6th, 2023. The received exhibit memo was produced and marked as an exhibit in court.
He then explained that he found that exhibit D1 – D14 to be elephants’ tusks that were cross sectional cut but D13 was a juvenile elephant tusks. D15 was a bone of an elephant hip bone(femur). After those findings, he stated that he wrote a report on the January 9th, 2023 that was forwarded to the officer that had brought them. This report was also produced as an exhibit. He then confirmed he did receive the tusks and bone and proceeded to point them out.
Cross examination
Mr. Wanaina for 1st Accused
He was questioned as to when he realised the report had an error. The witness replied; today. The witness also stated that he relied on exhibit memo when compiling his report. He confirmed that he is the one who typed the NMK report. Upon being asked if he proof reads reports, he responded that sometimes not thoroughly.
The defence further inquired whether he was saying that he is not thorough, which the witness replied that he tries to be but to error is to be human.
The witness confirmed to have received the memo on January 6th 2023 and that the NMK report was prepared on January 9th, 2023.
Witness was asked to confirm if KWS officers were waiting for the NMK report to charge the accused; to which he said yes. Defence noted that the charge sheet was dated December 5th, 2022, and the witness confirmed that by that time, he had not prepared an NMK report.
The defence counsel asked if he found it strange that the accused was charged without confirming whether the tusks were indeed elephant tusks? To which the witness replied that he was not familiar with the procedure.
Defence further asked if it is procedural to charge before NMK report. At this point the court interjected stating that that was a speculative question.
Mr. Machina for 1st Accused
The witness was asked what machine was used to identify the tusks; the witness stated that the equipment used was a microscope.
He confirmed that he assisted in identification, working with investigators and that he did receive the exhibit memo with the exhibits on the January 6th, 2023.
He stated that he would not know when a suspect is arrested unless its dated in the memo and as indicated the arrest was made in December 2nd, 2022. He also stated , upon being asked, that he would not know where tusks were between December 2nd, 2022 to January 6th, 2023.
Re examination
Prosecution asked the witness if after police officers make arrests, they required NMK report to charge? The witness replied that it is not always the case.
PW2
The second witness a KWS officer, stated that he works at KWS HQ in the investigation department, has 17 years work experience and his duties entail undertaking investigation in respect to wildlife crime.
He stated that on December 2nd, 2022 at around 2000 hrs, intelligence was received in office about persons at CBD, in possession of ivory and looking for a potential buyer. Upon receiving this information, he shared with his colleagues. Together they planned for an operation to seize the dealers.
He indicated that the information received indicated that the said people needed to conduct business at Galleria shopping mall and were to meet a potential buyer at the said mall. Being the team leader of operation, he sent an advance team to Galleria area for surveillance.
At the same time the covert team which he was in, gathered in the Langata office departed for Galleria mall at around 22:00 hrs. They were also joined by back up team of 3 rangers from the Nairobi National Park.
At 2200 hrs, they arrived at Galleria mall and having the description of the vehicle which the suspects were using, they were able to identify the vehicle as KCN 866R Navy Blue Toyota Probox. It was parked at Ola petrol station located adjacent to Galleria shopping mall.
After ensuring that all was secured, they went and surrounded the vehicle. In the vehicle they were able to identify 3 occupants; one in the driver’s seat and the other two seated in the rear.. They requested the driver to lower down windows which he did and inquired from him and his occupants what they were doing and they all remained silent looking suspicious. He instructed them to open the door which they did. His team did a search and was able to identify a luggage placed between the two passengers seating behind. The luggage was wrapped with a checked blue sheet (maasai shuka). His team opened luggage which was in a manila bag. He stated that the luggage contained pieces suspected to be ivory. He the requested the suspects to produce a certificate of ownership but they did not produce one.
After informing them that they were KWS officers, they arrested the 3 suspects; Mr. Bruce Osiro who was the driver, Nyangondi and Mwashigadi.
He reiterated that he ordered a quick search on the inside of car and boot. All suspects were seated inside the vehicle and the luggage was on the top of the seat. When luggage was discovered he was standing outside. The luggage was opened while inside the vehicle. He identifies the ivory and states that it was 15 pieces of cut ivory which he personally counted and did the inventory. The ivory was in manila sack then wrapped in a sheet (maasai shuka)
He produced the inventory stating that he prepared it on December 2nd , 2022 recorded at 2230 hrs. He said that it was witnessed by 4 arresting officers and the 3 accused persons who attested their signature.
He stated that the ivory weighed 30. 5 kg. He prepared a weighing certificate which was signed by the witness, the accused persons and weighing officer. The certificate is dated December 2nd, 2022. It was produced in court and marked as an exhibit.
He then stated that he brought Scenes of Crime Officers who took photos of the ivory and further processed the scene and documented it as exhibits in court. Prosecution then showed photos
Objection raised by Defence
Defence stated that the photos of scene of crime were never served to the defence and stated that it was an ambush. The prosecutor replied that the witness was not using the photos as evidence in his testimony. Defence objected. Court resorted to expunging that part of the evidence till the person who will produce the photos as well as when they will have been served to the defence.
Examination continued
The witness stated that they then took three statements together with the IO and escorted all accused to police station where they were put under OB no 04/03/12/2022.
Cross examination
Mr. Wanaina representing the first accused,
The following was noted:
Witness stated that he had primary information. He did not know category of informers – whether privileged or not. He was 10 min away when he got to Ola petrol station and he had been able to see the number plate on arrival.
He stated that the information received was that there was a vehicle and had occupants who had ivory and were looking for a buyer. He did not receive any prior information on the gender and number of occupants in the car. The intelligence information did not show the specifics like the vehicle number plate and number of occupants.
He stated that at Ola Petrol station, 4 officers surrounded the vehicle which included him who provided the information. He stated that he has worked with him for 2 years and is someone he can trust.
The witness stated that he did not order them to get out of the vehicle, only to lower the window and open the doors. He stated that no officer sat in the vehicle, they searched while standing outside.
When asked about why is inventory done, he stated that inventory is done to take account of what has been done which also includes safeguarding chain of custody. He stated that photographs were not taken at the scene and no dusting was done.
Mr. Machina for 1st accused
Witness was asked if he recorded the type of weighing machine, he stated that he did not record the type of weighing machine and its calibration. He also stated that he counted ivory during search. Anything pertaining to arrest and interrogation, he was present and processing of suspected. He assisted in the charging and the 1st time they were arraigned in court.
When asked about the NMK report, he stated that he did not know the date the report from NMK was received and doesn’t know when it came into hands of investigators.
When asked if he can tell which part of an elephant tusk the pieces belong to especially the broken pieces. The witness replied that he because of his years of experience, he could identify ivory even if its a broken piece of elephant tusk.He stated that these was confirmed by NMK analysis.
Mr. Wanjala for the 2nd Accused
From the cross examination the following points were noted:
The witness noted that the evidence in respect to the vehicle was not yet produced. He said he had seen the photos but since the photos were not allowed in court at that point, they could not be produced.
He reiterated that no dusting was done on exhibits to link the exhibits to the suspects. He stated that there was no communication he had produced in court to show that there was communication between the suspects and buyer. But the witness noted that there is a cyber-expert who could answer that.
Mr. Machina holding brief for Mr. Collins for 3rd accused
The witness stated that his statement was recorded on December 4th, 2022 so the events were fresh. He stated that the Intelligence officer (who gave intelligence) was not going to be a witness in this case. The witness said that he was the team leader of a covert and back up team. He sent members in advance to map out the scene. The members in advance came from the covert team. Defence states that his statement does not indicate an advance team.
Witness stated that the operations team worked hand in hand with the backup team. He stated that 2 officers’ names were not included in the inventory because not every officer is to be included in the inventory.
He stated that the accused persons co-operated when they got into the vehicle. Regarding the 3rd accused, he was arrested in the vehicle not outside. There were no photos taken of the accused being inside and only the testimony of the officers can show that the 3rd accused was arrested in the vehicle.
The witness stated that he did identify himself and team as KWS officers immediately when they saw the vehicle and told the suspects the reason of arrest. There were people around.
The witness stated that the 3rd accused is the one who was in the drivers seat. The witness also confirmed that there is a criminal investigations department at KWS.
The witness noted that they found the vehicle there. The defence noted that the inventory indicates Ola petrol station not Galleria and no motor vehicle is mentioned.
The witness confirmed that the Inventory does not indicate who was in possession of the ivory, it only identifies who was arrested and who arrested them. He also confirms he prepared the inventory and only his signature is appended not his name.
The witness stated that he first took the suspects to KWS office and can’t recall for how long it took them to the police station. The witness stated that they had to weigh the tusks and the weighing scale was at the office and also they interrogated them before taking them to the police. He stated that there were other officers at the station besides himself. Afterwards is when they took the suspects to the police station.
Re examination
The witness stated that with his experience as investigator, he does not need an expert report to charge. Defence objected that that question had not been raised by the defence.
The prosecution rephrased the question to ask if the witness had the expert report at point of charging. He said did not have the expert report.
Examination closes.
Prosecutor then makes an application for adjournment as it is past 5pm and 2nd accused has to be taken back to prison (he is in remand). No objection from defence.
The prosecution notes he has 4 remaining witnesses and intends to call 2 or 3 in the next court date.
Court set further hearing date as December 1st, 2023.
*************************************
#19. July 12th, 2023 (Hearing): SEEJ did not attend due to planned and executed nationwide demonstration. It was however later on advised that the hearing went on with one witness testifying. The matter was set for further a hearing on the 8th November 2023.
*************************************
#18. June 26th, 2023 (Mention-Pre-trial):
Matter came up for pre – trial for the 2nd accused.
It is important to note that on the previous two court dates the 13th and the 21st, the accused was not presented in court. As a result, the matter came up for a third time for pre – trial.
Matter is scheduled for hearing on 12th July 2023.
*************************************
#17. June 13th, 2023 (Mention – Pre-trial):
Matter came for pre – trial for 2nd accused. Matter scheduled for hearing as stated before which is on 12th July 2023.
*************************************
#16. June 9th, 2023 (Mention -Pre-trial):
The 1st and 3rd accused were present. The 2nd accused was not before the court because Investigating Officer ( IO) was not present. The defence advocates representing the 1st and 3rd accused were present. They confirmed that the prosecution documents including inventory were served and the matter can proceed for hearing. Since the 2nd Accused was absent, the matter was also given a pre – trial specifically for him.
The next pre-trial is scheduled for the 13th June 2023, while the hearing is on the 12th of July 2023.
