2023ConcludedWildlife Crime Courtroom Watch

E767/23 Malindi – R. vs John Katana Ndoro and Micheal Kea Mwayele 21.8 kg ivory – Concluded – Acquittal

SEEJ-AFRICA
SEEJ-AFRICA
Final Court Update
 
 #14. August 8th, 2024 (Judgement):  Chief Magistrate Elizabeth Usui today acquitted both accused of all charges.  The Hon Magistrate ruled that the credible defence of the accused and another witness combined with KWS contradictions regarding crime scene photos created an element of doubt. 
 
While KWS often takes what it calls crime scene photos of the seized evidence, they are typically taken at the station post arrest. There is certainly validity in their (KWS) claim that waiting too long at the arrest site could jeopardize their safety.  On the other side of the coin, the fact that photos were not taken at the scene is often brought up as a defence. The seconds it would take to snap even one photo, could shut down a regular line of defence,
 
The total time for this trial was just under 11 months during which time there were 14 sittings. SEEJ-AFRICA has not before seen a trial conclude in such a short space of time where the accused pleaded not guilty.
 
Plaudits to Chief Magistrate Elizabeth Usui for now setting the bar!
Sentencing Date:                     2024-08-08
 
Offence Date:                            2023-09-25
 
Magistrate(s):                            Chief Magistrate Elizabeth K. Usui
 
Court:                                           Malindi
 
Trial Duration:                             11 months – 14 sittings
 
Link:
 
Arrest Details:                             Acting on information, KWS officers arrested the accused on foot carrying a large bag, found to have 6 pcs of elephant tusks in the bag weighing approximately 21.8 kg.
Sentence/Conclusion:            John Katana Ndoro and Micheal Kea Mwayele were acquitted.

Case Overview.

On September 25th, 2023, at Marereni, Kilifi county, and acting on information, KWS officers arrested two men carrying a large bag.  John Katana Ndoro and Michael Kea Mwayele were found to have six (6) pieces of elephant tusks in the bag weighing approximately 21.8 kg.

Presiding Magistrate and Court:
 
Hon. E.K. Usui –  Chief Magistrate
 
State Counsel: 
 
Advocates for the Accused: 
 
Accused: 
1.John Katana Ndoro
2. Micheal Kea Mwayele
Charges: 
  1. Dealing in wildlife trophy contrary to section 92 (2) WCMA
  2. Being in possession of endangered wildlife trophy contrary to Sec 92 (4) WCMA
 
Date of Arrest:
 
2023-09-25
Date of Arraignment:
 
2023-09-26
Location of Arrest:
Marereni, Magarini, Kilifi County
Contraband Seized: 
21.8 kg (6 pcs)
On September 25th, 2023, John Katana Ndoro and Micheal Kea Mwayele were arrested by KWS and found with 21.8 kg of ivory.
Kenya Wildlife Service officer testifies in Malindi court with the six tusk pieces as evidence. On every occasion when a KWS officer involved in the arrest/seizure testifies, the ivory is required to be in court.

Proceedings

#13. July 2nd, 2024 (Defence Hearing): The court assigned a judgement date of August 8th, 2024.  Should this judgement take place, it will be the first time ever seen that a trial has concluded in less than one year.
 
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#12. June 25th, 2024 (Mention): The court set a defence hearing date of July 2nd.
 
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#11. June 18th, 2024 (Defence Hearing): The courts were closed across the country today for a day of mourning for the Judiciary. A mention date was later set for June 25th. 
 
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#10. May 30th, 2024 (Defence Hearing):The defence hearing did not proceed as scheduled and was adjourned to June 18th.
 

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#9. May 2nd, 2024 (Defence Hearing): The scheduled hearing did not take place.  A new prosecutor has taken over the case and requested more time to familiarize with the file. Adj to May 30th.

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#8. April 16th, 2024 (Defence Hearing):   The scheduled hearing did not take place as the court was not sitting. The presiding magistrate, Chief Magistrate E.K. Usui was away on official duties.  A new hearing date was set in the presence of the two accused to May 2nd, 2024.

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#7. March 12th, 2024 (Ruling):   The court ruled that there is a case to answer for the accused. Defence hearing adjourned to April 16th.

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#6. February 29th, 2024 (Ruling): The ruling did not take place and was adjourned to March 12th for ruling.  SEEJ-AFRICA not in attendance

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#5. January 25th, 2024 (Hearing):   Two KWS officers testified before the Hon. Magistrate E. Usui. The ivory, weight list, among other items were produced as evidence in court.

A certificate from Expert at the Kenya Museum confirming that indeed those were elephant tusks was produced.

A Nigerian bag which the tusks were wrapped in was displayed: and at this suspects  denied being owners of the bag and that the real owner should be produced in court. They also questioned why photos were not taken at the crime scene. To which the witness replied that it was too rainy.

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#4 November 30th, 2023 (Hearing): The hearing of ivory E767/23 at Malindi court proceeded with one witness testifying. Both the accused were present. The seized ivory exhibits were also produced in court. 

 
 Prosecution Witness testimony
 
A KWS undercover arresting officer told Malindi Chief Magistrate E.K Osui, that on September 25th, 2023, a colleague  received intelligence information on two people looking for a buyer, to sell six pieces of ivory at Marereni area. He therefore together with two other KWS officers left KWS offices in Malindi at around 1500 hours to go to Marereni. They arrived at approximately 1600 hrs. At 1615 hrs they saw people carrying a big Nigerian bag. The arresting officers immediately confronted the two, asking them to disclose what they were carrying.
 
They introduced themselves to the two suspects as KWS officers. A  search revealed that the blue Nigerian bag had a white sack which  carried a green sack. On opening the green sack six pieces of ivory were discovered.
 
The two suspects were asked if they had a permit to have the ivory. As they did not, they were arrested and taken KWS offices.
 
The weighing of ivory was done at KWS station. The photographing of ivory was also taken at the KWS offices and an inventory was taken and signed by all the officers and both suspects. The suspects were escorted to Malindi police station where they were booked and later charged.
 
Cross examination
The  first accused had no any questions for the prosecution witness. The second accused asked why they did not take photos at the scene of arrest. The witness said this was due to safety.
 
The hearing will continue on January 24th, 2024.
 
NOTE: This was the first attendance of SEEJ-AFRICA for this prosecution.
 
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#3. October 31st, 2023 (Hearing):  DNA

#2. October 16th, 2023 (Mention): Did not attend (DNA)

#1. September 26th, 2023 (Plea): The two accused were arraigned and pleaded not guilty.

 
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