Today’s Court Update
#28. July 3rd, 2024 (Hearing): There was no hearing today as the court was not sitting. The matter has been adjourned for hearing to August 27th.
Case Overview
Isaac Mugwandia Macharia, on 9th of February 2022, around 21:45hrs in house no.26, Savana Green estate in Joska area, Machakos county, was found in possession of a wild trophy namely, one (1) broken piece of elephant tusk weighing one (1) kilogram. He was arraigned in court on February 16th, 2022.
It was reported in the media that during the arrest, police and KWS officers also recovered a G3 rifle magazine, five bullets, bow and arrows, assorted Sim cards, laptops, cell phones and storage devices.
It was further reported that the accused was part of gang that included a Congolese national, Luodom Serge and an Ian James. James had previously been arrested for possession of narcotics and wildlife trophies.
Presiding Magistrate and Court: Hon. Boaz M. Ombewa – Senior Resident Magistrate Court 1 | |
State Counsel: Kiprono J. Gacheru | Advocates for the Accused: Wanaina |
Accused: Isaac Mugwandia Macharia | |
Charges: Possession of wildlife trophy contrary to Sec 92(4) WCMA Dealing in wildlife trophy contrary to section 92 (2) WCMA | |
Date of Arrest: 2022-02-09 | Date of Arraignment: 2022-02-16 |
Location of Arrest: Green Estate, Joska area, Machakos County | Contraband Seized: 1 kg |
PROCEEDINGS
#27. June 27th, 2024 (Hearing):Kahawa courts were today in disarray due to the continuing demonstrations in CBD Nairobi. The court clerk gave another date of July 3rd. The accused was not present.
************************************
#26. April 26th, 2024 (Hearing): Today’s hearing proceeded with one KWS witness. The accused and counsel were present. The prosecution advised the court that it had been ready with 3 witnesses but the other 2 were experts and not available. They would proceed with the one witness who was part of the KWS arrest team.
Examination in chief
The wtiness gave his name, C.D., and stated that he is based at the KWS – HQ , assigned to investigations department for the last 18yrs. He stated that on 9 February 2022, he was in the office, when he was informed by his supervisor, E.F., to prepare for an assignment and details were given to him and his colleague A.B. They were to join a multi-agency cooperation in the Joska area, Machakos county. Further details of operation were to be given once they had met multi-agency team. In the afternoon of that particular day, A.B. and the witness went to Joska to meet said teams and it took them up to 2 hours before they could get a full brief.
He stated that in Joska, they had gone to Greenpark Estate specifically, but corrected himself with prosecution assistance and stated it as Savanna Green Estate (as per the charge sheet). He stated that it took about 2 hours from around 2 to 4. They were informed that at house # 26 in that estate, was a person suspected to be involved in dealing with ivory and other contraband.
He stated that after getting the file details, they went straight to house no 26 where they introduced themselves as officers. One male occupant came to the door where he received the multi agency team. He remembers the occupant stated that he was Isaac (the occupant). From intelligence, the witness confirmed that he was the suspect and the team was able to arrest him. The occupant was interrogated by the multi-agency teams in regards to the illegal business. The interrogation took a long time because he was supposed to clarify a number of issues. One of the issues being involved was in exploiting unknown peoples accounts. Prosecution asked what type of accounts. Witness responded that what he can remember is bank accounts that he could withdraw money, clean the money, then send it back to the accounts. After a lengthy interrogation, a search was finally done in the house. A number of items were recovered within his house and were listed in the inventory which the witness had prepared.
He stated that a total of 79 items were recovered and listed as part of the inventory. In general, there were laptops, mobile phones, several assorted sim cards from various service providers being Safaricom, Airtel, and Telcom. There were visa cards, education certificates, a title deed, and storage devises like hard disks.
Most of the electronic gadgets were handed to the IO and he took them for analysis. Other recoveries which including a G3 magazine (previous marked and produced as evidence) fitted with 5 rounds of ammunition. These were specifically recovered from the bedroom of accused person, in a wardrobe. One piece of ivory was also recovered (shows it) from the wardrobe to (had already been marked as evidence).
After recovery, he inventoried all the recovery. He and A.B. signed it as well as other 2 multi-agency persons. Accused refused to sign and the witness indicated the inventory produced as evidence.
At around 10 pm on that day, the accused Isaac was escorted to Joska police station then transferred to KWS for further processing. He was later booked at Langata police station and charges were proffered against him
When they reached KWS HQ, the witness weighed the ivory and prepared a certificate. The weight was 1 kg. The witness signed the weighing certificate, and did A.B and the two multi agency officers. The accused refused to sign. The weighing certificate was produced. The witness stated that most of discoveries were returned to accused by the IO.
The witness showed the assorted sim cards showing the three various service providers as detailed. The number of said sim cards from inventory is 75 Airtel lines, 96 Telcom lines and 18 Safaricom lines (marked as exhibit). The witness stated that they were handed over to the IO (Chief Inspector Inoti – he is the one who conducted further investigations in this matter). The witness then identified the accused before the court.
Cross examination
The witness confirmed the operation that he was informed of the operation by his supervisor named G.H. The witness confirmed that G.H. gave them some details and much more was to be given by the multi-agency.
The defence counsel asked him if G.H. gave the information source – the witness stated that he had been briefed but not told source of information.
The defence counsel asked him if Mr. Bett gave a description of accused? The witness said No.
The defence counsel asked him what time he got to Joska. The witness mentioned that they got to Joska around 2pm on 9 February 2022.
The defence counsel asked him why it took 2 hrs before going to the house of the accused. The witness answered that at around 4 is when he approached suspect house confirmed and confirmed it is within 2 hours of arriving.
The witness confirmed that it was the suspect that opened the door.
The defence counsel asked him to look at his statement – where Paragraph 3 read one occupant opened the door to the living room. At that point he had not given an explanation. Witness then read that he wrote that they called for the owner who was resting in the bedroom and came to the sitting room.
The witness confirmed that in the house there were five occupants (as per what he wrote in his statement).
Defence counsel asked him whether he knows search procedures since he has been this profession for 19 years and ought to know the procedure for conducting a search and when a search warrant is required.
The witness confirmed that he does and the cases where a search warrant isn’t required. The witness confirmed that he knows and has read the police act and standing orders and says that in some operations a search can be conducted without a warrant.
The witness confirmed that they did not have a search warrant
The defence counsel clarified that upon receiving instructionsin the morning, couldn’t they have gotten a search warrant and that there was ample time? The witness stated that there was ample time but they did not get a search warrant.
The defence counsel asked him whether he can recall the number of bedrooms in the house or painting of the house. The witness stated that he can’t recall the painting of the house and confirms that there was more than one bedroom.
The defence counsel asked if he could confirm the bedroom which accused was in. Witness says that search was done on the areas of interest.
The defence counsel asked if he had visited the house before? The witness says he hadn’t.
The defence counsel asked if the witness can confirm if anyone informed him if accused person is the one who occupied which bedroom. Witness stated that in his statement there was no such information.
The defence counsel asked if dusting was done. Witness confirmed that no dusting was done. The defence counsel then affirmed that the witness cannot establish that the fingerprints belong to Isaac.
The defence counsel asked if witness knew size of the house. The witness said it was a normal house, not very big.
The defence counsel asked why take 8 hrs? The witness stated that the were interrogations of various aspects and that A.B. can confirm, he was with him
The defence counsel asked him on the extent he participated in search. The witness stated that the participated in the initial search before he started preparing inventory.
The defence counsel asked where he prepared the inventory which the witness responded that he prepared the inventory in a car where the items were being brought. The car was adjacent to the door.
The defence counsel asked if he personally got into the bedroom? The witness said yes, as items and that he recovered laptops. The witness stated that he did not recover the G3 or ivory.
The defence counsel asked if that among the witnesses, apart from A.B., is there a witness here that participated in that operation? The witness said he doesn’t know.
The defence counsel asked if the witness weighed at the scene? The witness stated yes, he had a pocket scale not calibrated. The defence counsel stated that his (the witness) colleague, A.B. confirmed that he did not weigh at the crime scene and the witness’s statement does not state this.
The defence counsel asked if the witness knew whether or not it was an offence of being in possession of multiple sim cards? The witness replied that he is not sure but having that many sim cards is questionable
The defence counsel asked if the SSU Unit (Special Service Unit) was also present? Witness said that it was not wise to give details of the operation and cannot confirm before the court.
The defence counsel asked if specifically, if he can remember names of the team bringing the recovered items to him. The witness responded that he cannot remember the names of the team that was bringing the items to him.
There was no re-examination. The prosecution stated that she had three pending witnesses, the investigation officer (IO), ballistics and the ivory expert from NMK. Prosecution requested for a further hearing date and defence had no objection. A further hearing date of June 27th was given.
CONTRADICTIONS IN TESTIMONY:There have been significant contradictions in the statements between the two KWS witnesses to date. A.B. stated on cross examination that he did not enter the house (contrary to his written statement and earlier testimony) and that he did not seize the piece of ivory. C.D. also stated that he did not seize the ivory which begs the question, who did? Witness C.D. stated the accused opened the door, A.B stated that the door was answered by a female. C.D. stated that he initially weighed the ivory at the house. A.B stated that the ivory was not weighed until later. C.D. stated that the search of the house did not take place until completion of a lengthy interrogation of the accused. A.B. stated that the search commenced immediately.
It has been observed that in situations where none of the witness officers take ownership of an item of seized contraband, the likelihood of a “plant’ is high.
************************************
#25. February 23rd, 2023 (Hearing): Today’s scheduled hearing did not take place as the court was not sitting. Senior Resident Magistrate Ombewa was on leave. The accused and his counsel were present and a new hearing date of April 26th was given in court 2.
************************************
#24. December 13th, 2023 (Hearing): Today’s slated hearing did not take place. The prosecutor, Mr Machira holding brief for Mr Kiprono, advised the court that despite the fact that one witness was present, they were not ready to proceed due to Mr Kiprono being away on official business. Also, the National Museum’s document was still not ready. He sought another date for hearing.
The defence accepted the adjournment request but asked that the prosecution be better organized next time to ensure the case moves along swiftly. The matter was adjourned to February 23rd, 2024.
************************************
#23. December 11th, 2023 (Hearing): Today’s scheduled hearing proceeded with testimony from one witness from KWS. A second witness from the National Museum was also due to testify but her original report was not available. The defence was not opposed to her testimony being given on Wednesday with the remainder of the prosecution witnesses.
The KWS witness, A.B., stated that he is stationed at the Naivasha KWS Station as an IO. On 9th February, he was part of an intelligence lead operation in Savannah Green Estate House number 26 in Joska. The intel stated that an individual living in house no. 26 had wildlife trophies, contraband, and ammunition. The operation was organized by a multi-agency team together with his in-charge, C.D.
The witness and his supervisor arrived at the house at 14:00 on the same day they received the intel and met with other agents on-site who provided the house address and the suspect’s description. At around 16:00 hrs, 10 agents accessed the suspect house and identified themselves. They met a girl who let them in and called the master of the house who was in his bedroom. They identified themselves and the suspect confirmed who he was.
According to the witness, the accused admitted to receiving illegal finances through PayPal. The defence highlighted this was inadmissible as it was not written nor did the accused make a confession.
After identifying themselves the agents searched the entire house where they recovered one piece of ivory weighing 1 kg, five bullets, and one G3 magazine. They also recovered one bow and three laptops. (the laptops were later returned).
The suspect was escorted to Joska police station where his supervisor prepared an inventory. The accused was later transferred to Langata police station by the witness and his supervisor.
Cross examination
In the cross-examination, the witness stated that the intelligence was received by his supervisor and the unit that carried out the operation was the disbanded SSU unit.
Defence counsel implied he had a recording he could play as he asked the witness if he entered the accused’s house. The witness’s response was no, he had stayed outside during the entire search even though he had recorded, in his statement, that he had gone inside the house. He admitted that he did not take part in the search. He also admitted that the information written in his statement was second-hand information from the multi-agency team.
The defence counsel asked if they had a search warrant but the witness said he did not know, he would have to confirm with his in charge.
Defence: Was the evidence marked at the station and did you at any point have a weighing machine during the search?
Witness: No
Defence – what role did you play in this operation.
Witness – I was the arresting officer.
Defence – Other than you and your supervisor, is there any other person who was present in the search that is a witness before this court?
Witness – No
The witness stated he had confirmed the authenticity of the information relayed to him from the multi-agency unit. The hearing will continue in two days on December 13th.
************************************
#22. October 24th, 2023 (Mention): All parties were present in court and hearing dates of December 11th and 13th were scheduled.
************************************
#21. October 23rd, 2023 (Mention): Prosecutor absent. Adjourned to tomorrow October 24th.
************************************
#20. October 18th, 2023 (Mention): The matter was taken off the court list and will be mentioned on Monday October 23rd. It is believed that the accused and prosecutor had changed the dates.
************************************
#19. August 16th, 2023 (Hearing): The defense initially requested an adjournment but the court refused and stated that the hearing would continue at 2pm. At about 1pm, it was advised through the clerk that the prosecutor came and in and requested another date saying that there were some exhibits that the IO had not brought. Adjournment granted and matter set for 18th October 2023.
************************************
#18. June 19th, 2023 (Hearing): The hearing did not proceed. Adjourned to August 16th 2023.
