CASE CONCLUSION
# 21. August 21st, 2024 (Judgement): Chief Magistrate Vicky Kachuodho today found the accused, Kivudu Kivuva Ngula, not guilty of being in possession of wildlife trophies of an endangered species due to lack of evidence. It had been alleged that he had been found carrying 2.8 kg of ivory on a motorbike on October 12th, 2022.
The verdict was not a surprise. Based on the testimony before the court, it became clear after the two arresting KWS rangers testified that there was going to be a problem. Neither could tell the court who had weighed the ivory. After the evidence of the Investigating Officer, the court was left with no conclusive picture as to whether the ivory had been properly weighed at all.
The two initial arresting officers also appear to have circumvented established protocols on the arrest procedure and the seizing of the motorbike, later found not to belong to the accused.
The accused had told the court that he had been set up, that he had been sent to the location on an errand and was arrested while waiting. Based on the testimony heard in court, that possibility could not be ignored. Break downs in basic and established protocols can be signs of integrity failures.
On the positive side, this trial conducted by Chief Magistrate Vicky Kachuodho was completed in less than two years (21 sittings) which is shorter than the average. Having said that, for just four prosecution witnesses, this is much longer than should be necessary.
Case Overview
On October 12th, 2022, and based on intelligence, KWS officers arrested the accused, Kivudu Kivuva Ngula, while with motorbike KMCR 249X along Mombasa road, between Kiboko and Masimbo. He was carrying 2.8 kg of ivory wrapped in two jackets.
Sentencing Date: 2024-08-21 |
Offence Date: 2022-10-12 |
Magistrate(s): Chief Magistrate Vicky Kachuodho |
Court: Kajiado |
Trial Duration: 22 Months – 21 sittings |
Arrest Details: Based on intelligence, KWS officers arrested the accused with his motorbike KMCR 249X, along Mombasa road, between Kiboko and Masimbo. He was carrying 2.8 kg of ivory wrapped in two jackets. |
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Conclusion: The accused was found not guilty of possession of wildlife trophies of an endangered species due to insufficient evidence. |
Presiding Magistrate and Court: Hon. Vicky Kachuodho – Chief Magistrate Court 3 | |
State Counsel: Gladys Mr. Mohammed | Accused Advocate: Not represented |
Accused: Kivudu Kivuva Ngula | |
Charges: Possession of wildlife trophies of an endangered species contrary to Section 92 (4) WCMA | |
Date of Arrest: 2022-10-12 | Date of Arraignment: 2022-10-14 |
Location of Arrest: Between Masimba and Kiboko, Kajiado | Contraband Seized: 2.8 kg (2 pieces) |
PROCEEDINGS
# 20. August 14th, 2024 (Judgement): Todays judgement did not take place. Chief Magistrate Vicky Kachuodho has not yet completed it. The judgement has now been re-scheduled again for August 21st.
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# 19. July 31st, 2024 (Judgement): Todays judgement did not take place as the file was not ready, having been misplaced in the registry. The judgement has now been scheduled for August 14th.
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# 18. July 17th, 2023 (Defence Hearing): Today’s hearing did take place. The court set July 31st, 2024 as a judgement date.
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# 17. July 10th, 2023 (Defence Hearing): Today’s scheduled defence hearing did not take place. The accused declared he was unwell and was having difficulty speaking clearly. The defence hearing was adjourned to July 17th.
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# 16. June 26th, 2023 (Ruling): The court of Chief Magistrate Vicky Kachuodho ruled today that there is a case to answer and the accused was put on his defense. The court scheduled July 10th for defence hearing.
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# 15. June 17th, 2023 (Ruling): Today’s ruling did not take place due to a recently declared and gazetted public holiday. The re-scheduled ruling is to occur on June 26th.
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# 14. June 12th, 2023 (Hearing): Today’s hearing proceeded with testimony from two witnesses. The accused was present and not represented. The ivory exhibits were in court.
Testimony from Veronica Onduso – NMK
The witness is a research scientist at the National Museum of Kenya. She received on 21st October 2022, two ivory exhibits from IO from KWS Kajiado station. Exhibit C1 was 52cm long while C2 was 23cm. Both were not complete and had longitudinal lines which are only found on elephant tusks. She also conducted a search using microscopic hand lens which showed schreger lines and came up with a conclusion that they were elephant tusks. She wrote a report and handed over to the IO together with the exhibits.
Testimony KWS Investigating Officer
He is based at KWS Kajiado whereby on 13th October 2022 while at his house in Kajiado was called by a fellow KWS officer informing him there was an accused person brought in the office. He went to the office and the officer handed over to him two statements and a sack which had two jackets and two tusks.
The statements were from Cpl. A.B. and Ranger C.D., both from Kiboko Station. He went through the statements and called the officers and they did not respond (there was no inventory from the scene i.e. the motorbike, no report from the scene and no weighing certificate). The said motorbike (KMER 249X) wasn’t brought on the day of arrest together with the accused.
The IO called OCS Kiboko regarding the matter and he told him to call Mr. Limuro because it was a KWS case. The bike was produced after two months and taken to Kajiado police station and whoever brought isn’t known.
The IO wrote a letter to the NTSA regarding the motorbike and said it was from Makindu Motors belonging to Toloin Ole Ipalo.
The arresting officer, C.D., didn’t bring the exhibit check of custody which should be filled and signed.( the accused passed through three stations Masimba, Mashuru, and Kajiado).
On cross examination, the accused asked the IO for the photos that had been taken from the scene and the IO responded that none were taken.
The IO also advised the court on cross examination that there was no OB number from Masimba station or indication that the bike had been seized as evidence. The tusks were not weighed at the time to ascertain weight and value.
The court will hand down its ruling on whether there is a case to answer for the accused on June 17th.
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# 13. March 28th, 2023 (Mention): Today’s scheduled hearing did not occur as the court of Chief Magistrate Vicky Kachuodho was not sitting in open court but in chambers dealing with civil matters. A hearing date of June 12th has been set.
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#12. February 7th, 2023 (Hearing): Today’s scheduled hearing did not occur as the court of Chief Magistrate Vicky Kachuodho was not sitting due to an emergency. The accused was present (unrepresented). The matter has been adjourned to March 28th, 2024 for mention.
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# 11. November 7th, 2023 (Hearing): Today’s scheduled hearing did not occur. The accused was present (unrepresented) as was the prosecutor and two KWS officers with the ivory exhibits. The scheduled witness was the expert from the National Museum of Kenya and the court was told that he was held up at another court.
The hearing is adjourned to February 7th, 2024.
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#10. September 11th, 2023 (Hearing) The matter came up for Hearing, and proceeded with two prosecution witnesses.
Testimony – Witness #1: The first KWS witness, A.B., stated that on 12 October 2022, he was at Kiboko camp. He was given intel regarding the sale of ivory. He went with a colleague to go a place between Masimba town and Kiboko town centre. When they arrived there, they found a man on a motorbike who had a luggage on top of the motorbike no KMRC 249X. The accused was alone. The witness introduced themselves as from KWS. When they asked the accused what he has carried, he said he was doing his own business. They asked to see his luggage and upon inspection found the elephant ivory.
The tusks were wrapped in a black jacket and red jacket then put in a sack (manila bag with a pink strip). It was 2 pieces of elephant tusks.
Accused said he was with another person who he was waiting for. He did not have a permit. The witness noted that they caught him at border of Makueni county and Kajiado county. He was taken to Masimba police station. Upon arrival, the police officers at Masimba said that since the matter was sensitive. He left accused there. He then identified the accused in court.
Cross Examination
The accused asked the witness whether he is the one who weighed the ivory which the witness said he did not. Accused noted that the kgs were 2.8 kgs. Accused asked what clothes he was wearing on the day of the arrest, the witness said he does not remember. Accused asked who did the search, and witness said that he can ask the IO the question.
Testimony – Witness #2: KWS officer C.D., based in Kiboko station and works in protecting wildlife. On 12 October 2022, got report from their boss on the illegal elephant ivory trade. Their boss sent him with the 1st witness, and found the accused along Mombasa Road, between Kiboko and Masimba.
On arrival, he found the accused on a red motorbike and sack on top of the motorbike. He looked inside the sack and found the elephant tusks. He arrested the accused and booked him at Masimba station. He said that the ivory was weighed by another person. He then identified the accused.
Cross Examination: Accused asked him where he found him which the 2nd witness replied by the roadside.
On re-exam, the witness stated accused did not have a permit
Prosecution requested for another hearing date and that on the next hearing the museum expert will come as well as other officers.
Next date: 8th Nov 2023 Hearing
This was SEEJ-AFRICA’s first appearance on this matter.
