Today’s Court Update
#17. February 25th, 2025 (Sentencing): The sentencing did not take place. The probation officer advised that she had not been aware of the requirement of a probation report. She asked for one week to prepare it.
The two accused are in custody and appeared virtually from prison.
The new sentencing date is set for March 5th, 2025.
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#15. January 28th, 2025 (Judgement): Principal Magistrate C.K. Kithinji today handed down her verdict. She summarised the case of the prosecution who had provided four witnesses, three KWS officers and one expert from NMK.
She then summarised the testimony of accused Morgan Tole who had indicated the involvement of a third party by the name of “Maingi”. The Hon. Magistrate continued that there was never any explanation from KWS as to who “Maingi” might be.
She continued that according to WMCA Section 92(2) of the constitution if one is found guilty of being in possession of wildlife trophy he or she will serve in jail for more than 7 years.
The magistrate said that they used all tricks to remove themselves from the case but she concluded they were guilty.
She then said the two accused people should be taken to cell as they wait for sentencing.
A sentencing hearing date of February 25th was set to be held in court 1, presumably due to PM Kithinji’s tranfer.
Case Overview
On the afternoon of November 22nd, 2023, KWS received intelligence of persons looking for buyers of ivory. KWS officers went to the area in a Probox vehicle and were met by accused Cyril Mchana Kitogho on a motorbike. He then led them to Morgan Tole Mwatembo and two others, one of whom was holding a sack containing ivory. Two of the three escaped but Kitogho and Mwatembo were arrested and found to be in possession of 33 kg of ivory. They were arraigned in Voi court on November 24th, 2023, and charged with dealing and possession of trophies of endangered species contrary to the WCMA.
Presiding Magistrate and Court: Hon C. K. Kithinji – Principal Magistrate – Court 2 | |||
State Counsel: Ms. Caren | Advocates for the Accused: Not Represented | ||
Accused: Morgan Tole Mwatembo Cyril Mchana Kitogho | |||
Charges: 1.Dealing in wildlife trophy contrary to section 92 (2) WCMA | |||
Date of Arrest: 2023-11-22 | Date of Arraignment: 2023-11-24 | ||
Location of Arrest: Mchorongo area, Taita Taveta County | Contraband Seized: 33 kg (1 tusk) | ||
Proceedings
#15. January 28th, 2025 (Judgement):
This matter came before Hon. C. Kithinji for judgement. She was not in court but appeared through Google meet. The prosecutor, and accused persons, Morgan Tole Mwatembo and Cyril Mchana Kitogho, were physically present.
Hon. Kithinji told the court that she had a lot of files but had not finalized the judgement. The judgement has been adjourned to February 12th.
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#6. June 3rd, 2024 (Hearing): This matter came before Hon. C. Kithinji for hearing. The magistrate, prosecutor, and accused persons, Morgan Tole Mwatembo and Cyril Mchana Kitogho, were in court. The ivory exhibit was present.
The proceedings were held in court 3. Prosecution had 3 witnesses.
Testimony witness (PW2)
He works at Tsavo East national park.
He said that on 22nd November 2023, he got intelligence that some people with elephant tusks in Mchorongo, Taita Taveta county, and were looking for a buyer.
The report showed that those sellers were not known. At 5:30 pm he called his team; A ranger and a driver and shared with them the intelligence. At 6:15pm they embarked on the journey to Mchorongo.
They recieved directions from someone unnamed. On arriving at Maktau they were told to divert and take the route to Mchorongo. They were also told there would be someone at the junction with a motorcycle.
When they arrived they saw a bald man in white gumboots. He hailed them down and asked them if they were the supposed buyers.
He then asked them to follow him and they were taken to a mud house. Three people were outside the house with a sack.
A closer look revealed a tusk. They managed to arrest two people and two escaped. The suspects were picked up by a Probox vehicle but they had to wait for a police Land Cruiser for half an hour. After that the Land Cruiser arrived and they packed the motorcycle and tusks and drove to Voi.
At the Voi KWS offices, they signed an inventory and a weighing certificate. Also the accused were found with a Samsung Galaxy, Nokia, and Nokia C2 phones.
Following were the exhibits used in this case:
- Weighing certificate.( Exhibit number 1.)
- Inventory.
- Green- Blue sack( big one), Cream and blue small sack used for 5 broken pieces of tusks.
- 7 pieces of elephant tusk weighing 33kgs. À1 and A2 were full pieces of tusks and A3 to A7 were broken pieces.
- Motorcycle KMEV 019M
- Sisal rope and rubber rope used to tie.
- Exhibit memo.
- Expert report (exhibit number 9.)
Accused #1 Cross Examining PW 2
A#1: How many intelligence officers were they on the ground.
Officer: 4 of them.
A#1: Did you ask those intelligence officers if they were talking to me.
Officer: No I didn’t ask.
A#1: Do you know where I reside nowadays.
Officer: No that’s not my work.
A#1: Where did you get me from?
Officer: Outside the house.
A#1: There were two vehicles, a Probox and a Land Cruiser, which of the vehicle did you use and how many were you?
Officer: I used a Probox, and we were with a ranger and a driver. The Land Cruiser came later after the arrest.
A#1: Whom did you first arrest?
Officer: The ranger arrested Morgan Tole and I arrested the person who was on the motorcycle.
A#1: Why don’t you want to say the exact ( name) officers that were on the ground?
Officer: We had two vehicles, the one we went with and the Land Cruiser came later.
A#1: So you think with my body physique , the ranger can arrest me?
Officer: He was helped by the driver and also the ranger is highly experienced so the body physique doesn’t matter.
A#1: Those two people that escaped, do you know them?
Officer: No, I don’t know. But you told me one of them is Maingi,
A#1: But Maingi was your intelligence officer.
Officer: Your honour, there was no such intelligence officer on the ground.
A#1: On our way, I heard you say that the following day you would go back to look for the owner, so why didn’t you go back?
Officer: We did not say anything like that.
A#1: A suspect is always carried along with his exhibits, why were the exhibits ferried by land cruiser and we by a Probox?
Officer: This is because we avoided the risk as a suspect can escape, so we used a closed vehicle.
A#1: Between you and the Ranger who is saying the truth.
Officer: I have said that I wasn’t there when the Ranger was giving his testimony.
A#1: I saw one of the officers taking photos, kindly produce those photos.
Officer: An elephant tusk is tangible, we always bring photos in court if exhibits are perishable.
A#1: So does it mean the place you arrested me was a perishable good, even the elephant tusk; I am hearing something different.
Officer: Yes we took photos, but it’s used for our own records.
Accused #2 Cross Examining PW2
A#2: If the intelligence officers told you, ‘I am coming to take you ?’ Does it mean they sent me?
Officer:
A#2: Did I have anything on that motorcycle?
Officer: No.
A#2: Did I say that they were tusks when we arrived or you just arrested me.
Officer: You said,’ those are the tusks’.
A#2: You arrested me and I stayed in Probox for 30 minutes. What were you doing outside for all that time?
Officer: We were waiting for the Land Cruiser, to carry the motorcycle and the tusks.
A#2: You asked me if I knew the owner of the ivory, true or false.
Officer: False.
A#2: Why did you not take photos for us while we were holding the tusks.
Officer: It’s illegal to take photos according to law of Kenya and you are not perishable.
A#2: Who took the tusks into the Voi offices when we arrived?
Officer: The Ranger.
A#2: Did you arrest me holding an elephant tusk?
Officer: No you guided and directed us.
A#2: Does the motorcycle have any problem?
Officer: Yes, this is because you were using it to perform a crime.
Then prosecutor said he had one more witness to the case, who is Ranger 2 ( Prosecution witness 3)
PW3 is a ranger in Tsavo East national park under investigation unit. He is also the Investigating Officer.
He says he was called by his boss and went to the office at around 11:40pm. He found the 2 accused, elephant tusks , sack and rope.
He interrogated them one by one and after that prepared an inventory and the accused people signed willingly. He also measured those elephant tusks three times to get the average which was 33 kilograms.
After that the accused were taken to the police station. Here are some of the exhibits used in court.
- Weighing certificate.
- Inventory.
- Chain of custody form.
- Exhibit memo.
- Report from national museum.
- Motorcycle KMEV 019M
- Elephant tusks , two full and five broken pieces.
- Three sacks.
- Two ropes ; a sisal rope and a rubber rope.
A#1 cross examination of PW3
A#1: As an investigation officer, do you know the owner of that house?
Officer: No I do not, because those arrested were outside the house not inside the house.
A#1: Do you know where I live?
Officer: Yes, Voi.
A#1: So between Voi and Maktau????
Officer: It was business so I don’t know whether you traveled.
A#1: You searched my phone for communication. Did you get any communication on my phone?
Officer: No I did not get any communication but you were four of you, a team, maybe you used other phones.
A#1:Why did you force me to sign the inventory.
Officer: You signed willingly.
A#2 cross examination of PW3
A#2: Are you sure those tusks were mine?
Officer: Yes, because you signed the inventory willingly.
A#2: As an investigating officer, did you do dusting of fingerprints.
Officer: No because the tusks were already interfered with.
A#2: Do I look like I can do such work?
Officer: I don’t know
After that the prosecutor said that she had two more witnesses, one KWS officer and an expert. She therefore asked for another hearing date.
Second accused requested to be returned for the motorcycle, allegedly he was not the owner.He was told to follow the procedure, to write a formal letter with the details of the owner.
The court gave another hearing date as at July 16th 2024.
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#5. April 18th, 2024 (Hearing): Today’s hearing took place with one prosecution witness from KWS. The ivory exhibits and seized motorcycle were present. The hearing began at 2:34pm.
KWS officer AB advised the court that he was given information based on received intelligence from his supervisor, CD, that there was a person in Chorongo Mwakitau who had an ivory tusk and was looking for a buyer.
He continued that three of them left in a taxi (private car) at approximately 6pm and met the accused, Cyril Mchana, on a motorcycle at Chorongo centre. Mchana then took them to the interior where the ivory was located.
PW1 saw three people standing near a mud house holding a sack. He and his colleagues approached the men, saw a tusk protruding from a sack and went to arrest the three. In the process, 2 men escaped. PW1 and colleagues arrested the two accused before the court.
PW1 further testified that the ivory was put in a police land cruiser but it was not clear how that vehicle and officers came to be there. The accused were taken back to the KWS station in Voi in the car.
In Voi KWS offices, the accused signed an inventory and weighing certificate. The following exhibits were presented in this case.
• Weighing certificate.
• Inventory.
• Motorcycle KMEV 019M
• 7 pieces of elephant tusk weighing 33kgs. À1 and A2 were full pieces of tusks and A3 to A7 were broken pieces.
• Greenish blue sack big one, cream and blue small sack used for 5 broken pieces of tusks.
• Sisal rope and rubber rope used to tie.
Mobile phones taken from the accused initially, had been returned.
PW1 was cross examined by both accused and lacked confidence in his answers. The 1st accused, Morgan Tole, during his questioning alleged that the arrest was a set up and questioned the role of the two persons who escaped. He intimated that it was the two escapees who were selling ivory and were working for KWS. The accused Tole also planted a seed of doubt as to whether the ivory was actually there.
PW1 agreed that the second accused was not found with ivory but was with the accused person on arrest.
The hearing is scheduled to continue June 3rd.
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#4. February 8th, 2024( Hearing): This matter came up for hearing before Hon. C.K.Kithinii. The magistrate, the prosecutor the accused persons, Morgan Tole Mwatembo and Cyril Mchana Kitogho, were present in court.
The prosecution witnesses were unavailable, one being on leave and another on other duties. A new hearing date was set for April 18th, 2024.
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#3.December 21st 2023 (Mention): All relevant persons were present. The two accused were no longer in custody and also no longer represented by counsel.
They were instructed to followup on obtaining disclosure statements. A mention date of January 16th was set with a hearing date of February 8th.
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#2.December 6th 2023 (Mention): A new mention date was given in court three as court two was not sitting; December 21st 2023.
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#1. November 24th, 2023 (Plea): The two accused were arraigned and pleaded not guilty. The first accused person, Morgan Tole Mwatembo, paid a bond of KSH 500,000 and is therefore not in custody. The second accused is still in custody.
