E522/23 Kilifi – R. vs. Samuel Kazungu Duka and Nelson Kiringi Nzai 5 kg ivory – CONVICTION

PW1: I work with Kenya Wildlife Service in Mombasa as a ranger with over twenty years experience. I am also trained and authorized to take photographs for the institution.

On 12th September, 2023, at around 8:00 a.m, I was at the office at the KWS Headquarters in Mombasa going about my daily duties when I received an intelligence call that in Chuma village, Kilifi County, there were two male suspects in the possession of ivory and were looking for potential buyers with the intention to sell.

I called my colleagues officers and briefed them on the intelligence I had received.

We discussed on the way forward and at 10:00 a.m in an unmarked service vehicle to Kilifi County. We arrived at Chuma village at 11:30 a.m and parked our vehicle in a hidden area and waited. I crossed the road to Chuma Primary and around 12:30 p.m I saw two suspects that had been described to me. One was dressed in blue jeans and a red t-shirt and the other was dressed in a khaki trouser and a red t-shirt. They were both carrying a luggage in a sack.

I approached them together with my three colleagues and introduced ourselves. I then asked to inspect their luggage that they were carrying to which they agreed. In the sack we found a suspected ivory tusk that was carried in a yellow sack.

Prosecution: Would you like to have the yellow sack and the suspected ivory marked as MFI1 and MFI2 produced as exhibits 1 and 2 respectively?

PW1: Yes.

I then proceeded to enquire whether they had any permit from KWS allowing them to be in possession of the ivory to which they responded they did not. We then boarded our unmarked vehicle and proceeded to Kilifi Police Station.

At the station I took photographs of the sack and suspected ivory. I also prepared a report and certificate of photograph both dated 15th September, 2023.

Prosecution: Would you like to produce the report as Exhibit 3, certificate of photography as Exhibit 4 and the four photographs a s Exhibit 5?

PW1: Yes.

At the station, my colleague, weighed the trophy at 5 kilograms and he also prepared weighing certificate which the arresting team signed on 12th September, 2023. However, the two suspects refused to sign.

I prepared an inventory dated 12th September, 2023 which the arresting team signed but yet again, the two suspects refused to sign.

Prosecution: Your Honour, the inventory is marked as MFI7.

PW1: The suspects were booked at Kilifi Police Station.

We then proceeded to KWS headquarters in Mombasa with the exhibits and stored them in the armoury. I am informed that the IO took the exhibits and exhibit memo to the National Museum in Nairobi for analysis.

The two suspects we arrested are in court today and we identified them at the time of arrest through their National Identity Cards that were in their possession.

Cross-examination by the 1st Accused

A1: At the time of the arrest why did you ambush four people in a motor vehicle but only arrested the two of us and released the other two?

PW1: There were only two of you at the scene where we arrested you.

A1: You arrested four of us in a vehicle but when we got to the police station, only the two of us were booked.

PW1: That is not true, you were two of you and we arrested you while you were walking.

Cross-examination by the 2nd Accused

A2: Why are you lying that you arrested us while we were walking yet were four of us in a motor vehicle but you only arrested the two of us?

PW1: I’m not lying. You were walking and not in a motor vehicle.

Re-examination by the Prosecution:

Prosecution: How many people did you arrest?

PW1: two

Prosecution: Did the description of the suspects by the intelligence match the suspects arrested?

PW1: Yes

Prosecution: Did you arrest them while they were walking or in a motor vehicle.

PW1: While they were walking.

Prosecution: How were they carrying the luggage at the time of the ambush?

PW1: In a yellow sack each of them holding on either end,

Testimony of KWS witness #2:

PW2:  I work as a ranger at the KWS headquarters in Mombasa. On 12th September, 2023, I was called by the previous witness, PW#1, to his office at around 8:00 a.m.

I got to the office and we were briefed together with my colleagues, on an intelligence call that had just been received on two suspects in Kilifi County that were in the possession of suspected ivory and were looking for a potential buyer.

At around 10:00 a.m we left Mombasa and headed to Chuma village in Kilifi County. We arrived at Chuma village at 11:30 a.m and parked our vehicle in a hidden area and waited.  PW#1 crossed the road to Chuma Primary and around 12:30 p.m we saw two suspects that had been described. One was dressed in blue jeans and a red t-shirt and the other was dressed in a khaki trouser. and a red t-shirt. They were both carrying luggage in a sack. We approached them and introduced ourselves. PW#1 then asked to inspect their luggage that they were carrying to which they agreed. In the sack we found a suspected ivory tusk that was carried in a yellow sack.

We asked them whether they had the permit to be in possession of the same to which they said they did not.

We arrested them and took them to Kilifi Police Station in our unmarked service vehicle. At the station I weighed the trophy and it was five kilograms. I prepared a weighing certificate and also the inventory. The arresting team signed all of them.

Prosecution: Do you wish to produce the weighing certificate as Exhibit 6 and the inventory as Exhibit 7?

PW2: Yes.

I wish to note that the suspects refused to sign the weighing certificate and the inventory.

The suspects were booked at the Kilifi Police station and we left for KWS headquarters in Mombasa with the exhibits for safe keeping at the KWS armoury and analysis at the National Museums of Kenya.

I can see the two suspects are in court today.

Cross-examination by first accused

A1: Do you know individuals by the name Samson Katan and Salim Mwaro who you arrested us with?

PW2: No, I do not know them, we did not arrest you with any other individuals. It was only the two of you.

A1: I do not have any other questions.

Cross-examination by second accused

A2: Why did you arrest four of us but only booked the two of us at the station?

PW2: You were only two when we arrested you and not four.

Re-examination by the prosecution

Prosecution: How many people did you arrest?

PW2: two

Prosecution: Which vehicle did you transport them in when you took them to Kilifi Police Station?

PW2: Our unmarked service vehicle

The prosecution noted that they had three more witnesses and prayed that the matter be adjourned.  The court gave a further hearing date of 4th April, 2024

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