MCCR/E348/2022 Republic vs. Duncan Karisa Maritha – 7.7 kg ivory
Sentencing Date: 2024-03-20
Offence Date: 2022-05-27
Magistrate(s): Chief Magistrate A.M. Obura (Mrs.)
Court: Voi
Trial Duration: 22 Months
Arrest Details: Acting on intelligence, a KWS ‘buyer’ made contact with the accused and he was found attempting to sell 7.7 kg of ivory.
Link:
Conclusion:
Duncan Karisa Maitha – Found guilty of dealing in wildlife trophies and sentenced to 7 years imprisonment.
Final Court Update
#21. March 20th, 2024 (Sentencing): Today, the accused, Duncan Karisa Maitha, was sentenced by Chief Magistrate A.M. Obura to 7 years imprisonment for Dealing in Wildlife Trophies. There was no fine option. The court learned through a probation report that the accused showed no remorse, continually complaining that he was innocent.
Case Overview
On May 27th, 2022 at Maungu,the accused was arrested for dealing in wildlife trophies of endangered species, namely 5 pieces, 7.7 kg of Elephant ivory.
Presiding Magistrate and Court: Hon. A.M Obura (Mrs) – Chief Magistrate Crt 1 | |
State Counsel: Mogaka | Advocates for the Accused: Not Represented |
Accused: Duncan Karisa Maitha | |
Charges: Dealing in wildlife trophy contrary to section 92 (2) WCMA | |
Date of Arrest: 2022-05-27 | Date of Arraignment: 2022-05-30 |
Location of Arrest: | Contraband Seized: 7.7 kg (5 pcs) |
Proceedings
# 20. March 13th, 2024 (Judgement): Today’s judgement was rendered by Chief Magistrate A.M. Obura. All parties were present.
The judgement was read in the afternoon as is typical with judgements. At 14:28 hrs, the Hon. Obura stated that the accused person was arrested for dealing with wildlife trophies which is against the law
The accused person was arrested on May 27th, 2022, found with elephant ivory of 7.7 kilogram for which he had no permit.
He had been arrested with 5 pieces of ivory which was exhibit #2, a sack which was exhibit #3, and an inventory which was exhibit #4, The accused’s phone was also collected for further investigations which was exhibit #7, and its SIM card was exhibit #6.
The accused person claimed that the trophy wasn’t his and was arrested a second time (referring to the arrest warrant) for no offence. He also claimed that the officers forced him to sign the inventory for ivory that he had never dealt with.
The magistrate said that section 3 of the WMCA, says when one is found guilty he or she is jailed for a period of not less than 7 years.
Despite the accused saying that the KWS officers gave wrong information, the court said that they (KWS) will not arrest for no reason. The court was also of the opinion that the accused’s failing to appear in court was an indication of guilt and the testimony of PW5 whose evidence through phone call logs indicated that the accused was looking for customers.
Therefore the magistrate said that the accused person is found guilty. He was taken into custody and the sentencing to be heard on March 20th.
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# 19. February 20th, 2024 (Judgement): Today’s judgement was not rendered as scheduled. The court requested more time and apologized to the accused. A new judgement date was set for March 13th, 2024.
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# 18. January 23rd, 2024 (Defence Hearing): All relevant persons were present in court. The accused person, unrepresented, came with his witness.
Testimony of Defence witness:
He introduced himself as Pascal Mwaludindi Mabishi, from Maungu. He does welding and he is an uncle to the accused. He claims that on May 27th, 2022, he was in his garage and the accused person was in his shop which deals in vehicle spares.
Then at around 8:00pm he heard some noise in the distance; about 100 metres away. On asking what the commotion was about, he was told that Duncan Maitha was arrested by some officers who claim to be KWS officers. He decided to go to the scene, and he saw Duncan Karisa in a vehicle.
He tried to ask the officers the reason for arrest but no response was given and the officers didn’t want to listen to them.
So he claims that during that day, his friend was arrested with no reason. He also claims that what the officers said about Duncan is not true. This is because he knows him as an honest, God fearing man.
Then the prosecutor asked him several questions of which he answered all.
S/C: Who is Duncan to you.
Witness: He is close family member.
S/C: And so if he does wrong should we cover up for him?
Witness: No
S/C: Do you know where he goes after work.
Witness: He goes home and I believe he goes to his house.
S/C: Did you ask officers the reason why he was arrested.
Witness. I didn’t because they did not want to listen to anyone
S/C: Why are you defending Duncan and you don’t know him especially when he is not with you.
Witness: he is honest, he can’t do that, I know him, he is my cousin’s child.
S/C: Do you really know what he does when he is away, maybe.
Witness: No but I believe that he is a true man.
S/C: When was the last time you saw Duncan that day before he was arrested.
Witness: It was in the evening 7:30 pm .
S/C: You said that, he was arrested at around 8 pm, do you know where he was for thirty minutes.
Witness: No, I don’t.
After that the accused person closed the case and the court gave the judgement date as at February 20th, 2024 at 10:00am.
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#17. October 31st, 2023. (Defence Hearing) The matter came up for defence hearing before Hon. A.M. Obura. The prosecutor, Mr.Mogaka, was present. The accused did not have an advocate.
Testimony of the Accused:
The accused identified himself as Duncan Karisa Maitha, a boda boda rider and a mechanic who resides at Maungu. He said that he was arrested on May 27th, 2022, for being in possession of 5 pieces of ivory of 7.7 kg. He denied the charges.
He said that on the day he was arrested he had been at the garage repairing his motorcycle. On his way home, two men greeted him, then arrested him and took him into a `Probox’ type of a vehicle. He screamed but no one came to his rescue. He was taken to a police station. He was asked if the ivory was his, he denied but the officers forced him to say it was his. He decided to keep quiet and he was given an invoice to sign. He later decided to signed after one police officer kicked him.
Later he was taken to court.
He also claims that the officers have been harassing him to accept that ivory belongs to him.
He also said on 28th (August) at 2:40 pm officers came to his garage and told him they have an arrest of warrant of which they did not have. In the vehicle he was forced and harassed to accept that the ivory belonged to him. The accused person also claims that he has a lot of fear due to officers harassing him.
Cross examination:
S/C (state counsel): Where did you study mechanics?
Accused: Mabati industry, Mariakani, but I did not finish.
S/C: Why did you not tell the court your concerns about your safety, now that you claim your life is in danger?.
Accused: I told the court that the officers are fixing me on things I don’t know. but I did not say it when the officers were around.
S/C: If they arrested you on a public road, did they arrest other people apart from you?
Accused: No they arrested me.
S/C: Have you see the person who kicked you with the gun since the incidence happened.
Accused: No I have not seen him.
S/C: Why did you not tell officers who came to give testimony that an officer kicked you.
Accused: Because the person who kicked me was not in there.
S/C: You claim that the officers came and arrested you on 28th (August) with no issue, how sure are you?
Accused: This is because they didn’t have uniform.
The prosecutor told the court that the accused failed to attend hearing on August 8th, 2023, in which the court gave an arrest warrant. Therefore the officers were doing their work.
After that the accused person requested to be given time for his witness to testify as he was currently unwell. The matter has been adjourned to January 23rd, 2024.
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#16. September 6th, 2023 (Mention): The matter came up for mention. The accused person Mr. Duncan Karisa Maitha was present and the prosecutor was Mr. Mogaka who was also present. The accused was not represented. The date set for defence hearing is October 31st, 2023.
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#15. August 8th, 2023 (Hearing) : Adjourned to September 6th, 2023.The accused was not present as inferred from the testimonies on October 31st, 2023. An arrest warrant was issued.
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#14. July 5th, 2023. (Ruling) This matter was coming up today, virtually for ruling on whether the accused person has a case to answer.
No counsel was present or was mentioned to be on record for the accused. It can be safely assumed the accused person does not have any legal representation. The court in its ruling stated that the accused person had a case to answer. Upon the request and subsequent explanation by court, the accused person stated that in his defence, he opts to give sworn statement and will be calling one (1) witness on August 8th, 2023 for defence hearing.
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#13. June 27th, 2023 (Ruling): The ruling did not take place and was adjourned to July 5th, 2023.
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#12. June 7, 2023 (Hearing): Today the prosecution had two witnesses present in court i.e. the expert from the National Museum of Kenya (NMK) and and expert from the KWS cybercrimes unit in Nairobi. The NMK expert testified confirming that the 5 exhibits were elephant tusks. She produced her report and was admitted to form part of trial evidence.
The cybercrime expert also testified as to information retrieved from a Samsung mobile phone recovered from the suspect. In the report, 152 messages and 210 calls were retrieved from the mobile phone. This report too was also admitted as evidence in court. The matter was adjourned.
New court date set on June 27th, 2023.
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#11. May 23, 2023 (Hearing): The matter was coming up for hearing of an expert witness from the National Museums of Kenya. This matter did not proceed since the expert witness was not present in court. The court was informed that the expert witness was held attending another hearing at Laikipia station. The matter was adjourned. Next hearing date TBA once her availability has been confirmed. (first attendance of SEEJ-AFRICA.)
