Final Court Update
#49. April 9th, 2024 (Judgement):
by Chris Morris
Today, in Kahawa Law Courts, Court #2, Principal Magistrate Gideon Kiage Oenga, acquitted all four accused. The court concluded by stating that in Kenyan law, cases should be proved beyond reasonable doubt, therefore mere suspicion cannot suffice.
The court held that the evidence fell under the required standard and could not proceed to find accused persons guilty. The evidence was doubtful, and the circumstantial evidence failed to meet the threshold of beyond reasonable doubt. The Hon. Kiage acquitted all accused under Section 215 CPC. The ivory is to remain at KWS and an order will be made for its destruction.
The courts mentioned specific difficulties as detailed below. It should be noted that in this arrest, the Special Service Unit (SSU) was the lead agency. The SSU was considered an elite unit of the Directorate of Criminal Investigations but was disbanded in October 2022 for conducting extrajudicial killings. The SSU was previously known as the Special Crimes Prevention Unit (SCPU).
This is significant as there have been past investigations where the SCPU has made arrests and charged individuals with offences under the WMCA, leaving KWS to administer the file as the prosecution continued through the courts. Information sharing and collaboration were not optimal and a challenge for KWS. In this particular instance, while the IO is from KWS, the issues may well not be of his, or KWS’s, making.
The court had issues with the following:
1. While there was mention of a KWS undercover ‘buyer’, no evidence of communication between the ‘buyer’ (or any other arresting officer) and any accused was provided to the court.
2. The owner of the vehicle that was found to contain the 62 kg of ivory could not be traced and was not brought to court.
3. The IO had told the court that there was no evidence to indicate that accused were communicating with each other and he had also stated he could not confirm why the 2nd accused was arrested.
4. The court was told that a forensic analysis of phones was not conducted as the phones could not be opened due to lack of PIN access.
5. The IO had testified that, in admissions made to him, the 1st accused had custody of ivory and 3rd accused was a broker for the 4th accused. The court observed, however, that there was no evidence that the IO had followed the parameters as set out in Section 25 of the Evidence Act on receiving a confession statement and therefore, the evidence could not be supported.
It is also to be noted that in the well publicized arrest, it was announced that 19 pieces of ivory weighing 100 kg had been seized. On arraignment, the weight of the ivory had decreased by 38 kg to 62 kg. It was suggested that it was due to different scales being used.
The court also suggested to the prosecution that in these cases, the evidence should be such that it provides a clear picture of events. As such, the prosecution should provide advice to investigators.
The trial duration was 32 months over which time the court sat 49 times. Chief Magistrate D. Kavedza-Mochache heard the case initially prior to her promotion to Lady Justice. Principal Magistrate Kiage presided over the last 16 sittings. There were seven prosecution witnesses, three defence witnesses, and all accused testified on their own behalf over the course of the trial.
Sentencing Date: 2024-04-09 |
Offence Date: 2021-07-30 |
Magistrate(s): Principal Magistrate Gideon Kiage Oenga; Chief Magistrate Diana Kavedza-Mochache |
Court: Kahawa |
Trial Duration: 32 months |
Link: |
Arrest Details: Special Service Unit with KWS arrested 4 men, seized 2 vehicles, one containing 19 pcs ivory weighing 62 kg (or 100 kg) in the Kangari Market area, Muranga County |
Sentence/Conclusion: All accused acquitted of dealing in wildlife trophies. |
Case Overview
On July 30th, 2021, at around 1400hrs, at Kangari market, Kigumo, Muranga County, the accused were jointly found dealing in wildlife trophies namely; 19 pcs of elephant tusks weighing 62 kg.
Presiding Magistrate and Court: Hon. Gideon Kiage Oenga – Principal Magistrate – Court 2 Previously – Hon. Diana Kavedza – Chief Magistrate Court 1 | |
State Counsel: Ms. Jillo | Advocates for the Accused: Claire Wanjiru – A#1, A#3 Mr. Odhiambo – A#4 |
Accused
| |
Charges:
| |
Date of Arrest: 2021-07-30 | Date of Arraignment: 2021-08-02 |
Location of Arrest: Kangari Market, Muranga County. | Contraband Seized: 19 pcs of ivory,wght 62Kg |
Proceedings
#48. April 5th, 2024 (Judgement): Today’s scheduled was not delivered due to court workload. The matter has been re-scheduled for April 9th. Defence counsel are permitted to attend virtually.
************************************
#47. March 8th, 2024 (Judgement): All relevant persons in attendance, the two defence advocates appeared virtually. Principal Magistrate Kiage apologized to the accused and their advocates, stating that due to work pressures, the judgement was not yet complete. Another judgement date has been set for April 5th.
************************************
#46. February 2nd, 2024 (Mention): The court today set a judgement date for March 8th, 2024. (SEEJ-AFRICA not in attendance)
************************************
#45. January 18th, 2024 (Mention): Today’s mention was for the purpose of confirming the filing of submissions. SEEJ was not in attendance, however, another mention date of February 2nd was given.
************************************
#44.November 30th, 2023 (Defence Hearing): The matter before the court was Defence Hearing, all the accused were represented except for the 2nd accused.
Ms. Wanjiru represented the first and the third accused. Mr. Odhiambo represented the forth accused while the second was unrepresented. All the accused testified.
1st Accused, Edward Kamau
He said that he lives in Muranga County ,and is a tea farmer. On July 30th, 2021 his daughter Mary , wanted to purchase a mobile phone and his son wanted to take an identification card. Since his the birth certificate had some issues he had to accompany them. At around 10:00am they left for Kangari town on his motorbike registration KMES 920S. At around noon they went to a mobile shop, he left his children there and went back where he had parked his bike under the shade since it was raining.
At the shade he was forced to enter into a white salon car which was parked and found more people. The said motor vehicle then took them to Kangari police station. After 20 minutes another
white vehicle arrived and parked beside them, they opened the boot of the vehicle and removed a luggage. The luggage was then displayed and its contents were elephant tusks, photos were then
taken and later he was placed in a cell since it was late. The following day they were summoned and later boarded a KWS land cruiser to Langata police station. Kamau didn’t know the people who arrested him; neither did the said motor vehicle registration KAP 374V belong to him. At the Kangari police station his son called and he directed him where he was, the son collected the money which was in his pocket and the motorbike keys.
2nd accused,Peter Macharia
He said that he resides in Thika, Kiambu County and is a driver working at Egybro East Africa Company. On Friday, July 30th, 2021. was his off day. So he decided to visit his mother who was
unwell. He left Thika at 11:00am for Kangari ,upon reaching the said town he went to park near Equity bank and found the place fully parked so he flash parked along the road . He went to withdraw money for shopping and for the prescribed medication. At the bank there was a queue so he went back to his vehicle to pick his jacket. There was a commotion at the motorbike stage so
he decided to take his car to another parking area. On taking the vehicle to the other side of the road he hit a Subaru which was parked. Macharia told the owner of the Subaru that he was going to
withdraw some cash; he didn’t make since he was arrested on his way to the bank by three people and put inside the Subaru then taken to Kangari police station. Upon reaching the station he was advised to sit at the round about where there were more people, after five minutes he was directed to move in front of the police land cruiser and was told to give out ten thousand shillings KShs.(Sh 10,000.00 for the Subaru maintenance). Since he had no money he was told to go back where he was, at the roundabout he found elephant tusks on the ground each with a black print. He was told to stand alongside the tusks to be taken photos then later on taken to cell. The following day finger prints were taken and then taken by a Land Cruiser to Langata station on Saturday.They were arraigned in court the Monday after the weekend.
3rd accused , Martin Mungai
He said that he lives in Mangu Gatundu and is a plant mechanic. He left his home to attend a burial ceremony at Kangari whereby he boarded a matatu at Thika. After reaching Kangari stage he remained inside the matatu since it was raining. While at the stage he was put inside a land cruiser and taken to the police station, he found more people sitting down. After few minutes a
salon car came and it had a luggage, they were then taken photos together with the luggage. The following day fingerprints were taken and then they boarded a KWS land Cruiser which took them to Langata police station.
4th Accused Samuel Njuguna
He said that he resides in Kangari and is a bodaboda rider and also repairs tyres. On that day he woke up and took a pupil to Gatieni, he later on took two customers to Kangari town.
Since it was raining he went to the bodaboda shade and found a vehicle being parked and made noise for the vehicle to be removed. At that moment a person removed a pistol and he was directed
to enter into the parked vehicle and found more people inside, then later they proceeded to Kangari police station. After 20 minutes another vehicle arrived and parked near them, the vehicle had a
luggage whereby photos were taken together with the luggage, later on he was put in a cell. The following day they were taken to Langata police station. At the station Samuel directed one of the policemen to where he had parked his motorcycle; later it was brought to the station where his brother came and picked it.
Ms Wanjiru requested for three weeks to file submissions.The magistrate also requested the report to be typed. The court assigned a mention date of January 18th, 2024, for confirmation of filing submissions.
************************************
#43. October 24th, 2023 (Defence Hearing): On this date, the son and daughter of the accused; Kamau testified. Their testimony did not provide any evidence that could exonerate their father. A third witness testified on behalf on the 3rd accused Samuel Njuguna but again was of no help. The matter was adjourned to November 30th to take the testimony of all accused.
************************************
#42. August 4th, 2023 (Ruling): DNA – The court did rule, however, that the accused had a case to answer. Adjourned to October 24th for defence hearing.
************************************
#41. July 21st, 2023 (Ruling): Today’s ruling has been deferred to August 4th. The sitting magistrate advised that the case had started with CM Mochache and he requires more time to go through both his and her proceedings.
************************************
#40. July 10th, 2023 (Mention): Did not Attend (DNA)
************************************
#39. June 26th, 2023 (Submissions): The matter was coming up for mention to confirm filing of submissions. Prosecution and defence counsel all noted that they were not ready to proceed as they were not ready with submissions. Parties requested for a ruling date but court gave a mention in 14 days to confirm if submissions have been filed by all parties. Next mention July 10th, 2023.
************************************
#38. June 19th, 2023 (Mention): This was done virtually with the accused physically present in court with the prosecutor. Submissions were not complete. Matter adjourned for mention again on June 26th.
************************************
#37. May 18th, 2023 (Hearing): The court’s special sitting was convened outside at KWS with the seats and table arranged in manner similar to a typical court layout. All accused were present. Accused 1-3 were represented by Ms. Wanjiru and accused no. 4 was represented by Mr. Odhiambo.
The purpose of today’s hearing was to enable PW-7 to produce motor vehicle of registration number, KAP 374V as evidence before court. As stated by PW-7, the reason for not been able to bring the motor vehicle to court on 15th May 2023 was that it had issue with the battery and that there was need to preserve status of the motor vehicle.
The Magistrate, together with all persons in attendance were ushered to the look at car storage yard, to see the subject vehicle. PW 7 pointed out the vehicle which was an old model Toyota Corolla. Also the following were revealed:
- Showed the Magistrate the sitting positions of the accused persons. The 1st accused as the driver, the 3rd accused sat on the front seat and the 4th accused sat on the rear back sit on the left side.
- Showed the Magistrate the boot in which the 19 ivory were found to have been placed.
PW7 was cross examined by both advocates on the motor vehicle he had produced as evidence. To Ms Wanjiru’s ( for 1st -3rd accused) questions to PW7 it was noted that:
- The motor vehicle could not be brought to court because of battery issued and they had to preserve the status of the vehicle.
- It was stated that 19 tusks were found in the boot.
- The witness did not see the sitting arrangement
- Also he did not did not measure the ivory but confirmed to court they fitted in the boot
- Confirmed that the boot is lockable
- Only saw the accused persons after they had been arrested.
The response to Mr. Odhiambo ( for 4th accused) on cross examining PW7 are as follows:
- Stated that the 4th accused was seated at the left back
- He interacted with the ivory at Kangari police station
- He saw the accused at Kangari police station but did not know how they got there.
The prosecutor made an application that the motor vehicle remains at KWS for storage purpose but still remains the property of the court.
Mr. Odhiambo made an application to be furnished with typed proceedings however the court mentioned that he doesn’t need an order to that effect. All he needed to do was to make a simple application at the registry and they could be ready by Monday the following week.
It was agreed that within 30 days, both the prosecution and defence to have filled their written submissions (arguments) and the same be sent via email. It was further agreed to have this matter mentioned virtually to confirm filling of written submission by all parties.
Virtual mention was slated on June 19th, 2023. This is to to confirm filing of written submissions by the defence and prosecution.
************************************
#36. May 15th, 2023 (Hearing): The matter was coming up for a hearing. All accused were present and were represented. The last prosecution witness, the IO, testified about the arrest and evidence taking. He mentioned that the ivory had been hidden amongst a cargo of cabbages. There were no photos taken at the crime scene due to a gathering crowd. The initial statements indicate that the ivory was weighed as 100 kg but a second weighing was done indicating 62 kg.
The witness was also cross-examined by defence counsels. The issue arose on the production of the motor vehicle that had been used in the commission of the crime, which was evidence adduced by the prosecution. The court and litigants agreed that the matter proceeds as is and that another hearing will take place after the vehicle has been produced as evidence. Also, the defence had a way to cross-examine the witness again but only the vehicle as evidence. The IO noted that the vehicle was old and cannot be brought to court. As a result, the magistrate agreed that the next hearing be done at KWS headquarters where the vehicle was for the purpose of producing the vehicle as an exhibit.
(This was the first appearance of SEEJ-AFRICA.)
Four people arrested with 100kg of elephant tusks worth over Ksh.10 million
Four people were on Sunday afternoon arrested in possession of 100kg of elephant tusks worth over Ksh.10 million for illegal trade in Kangari town, Murang’a County.
The four; Martin Mungai Nginya (58), Peter Macharia Njuguna (32), Edward Mwambura Kamau (55) and Samuel Njuguna Mwirigi (43) were found in possession of 19 pieces of the jumbo tusks.
The suspects were ambushed in two separate motor vehicles ready to conduct the illegal trade by a multi-agency team christened ‘Interpol Usalama 7’ that has been pursuing the syndicate.
The sleuths confiscated the cargo stashed in the boot of one of the cars in two sacks guised as loads of cabbages.
“The suspects have since been placed in custody and undergoing investigative interviewing, with detectives seeking to effect more arrests on possible poachers and the targeted market for the products,” read a police statement.
