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E011/24 Msambweni – R. vs. Tima Omar Suya and Bahatisha Juma Said 111.98 kg Ivory

SEEJ-AFRICA
SEEJ-AFRICA
Msambweni law courts January 8th, 2024; Tima Omar Suya and Bahatisha Juma Said accused of dealing in 111.98 kg of ivory.
Today’s Court Update 
 
#13. October 1st, 2024 (Mention): The court of Principal Magistrate L.W. Kabaria, set a defence hearing date for November 19th. 
 
 

Case Overview

On January 6th, 2024, at approximately 09:00 hrs in the area of Majoreni, Lunga Lunga sub-county, Kwale county, the two accused women were intercepted by KWS investigators while transporting five pieces of ivory tusks, in a Nissan Lafesta van.  The total weight of the 5 pieces was 111.98 kg. 
 
The area of the interception, south of the Lunga-Lunga – Ramisi highway, and close to the Indian Ocean coastline and the Tanzanian border should be of interest.
More than one source reports that a police sergeant based in Shimoni is also involved.
Presiding Magistrate and Court:
 
Hon. L. W. Kabaria – Principal Magistrate 
Previously – Hon. Sandra Ogot  – Chief Magistrate
 
State Counsel: 
SPC Alice Mbaeh
Advocates for the Accused: 
Not Represented
Accused: 
Tima Omar Suya
Bahatisha Juma Said
Charges: 
  1. Dealing in wildlife trophies of an endangered species contrary to Section 92 (2) arw Section 105(1) WMCA.
  2. Being in possession of wildlife trophies of an endangered species contrary to Section 92 (4) arw Section 105 (1) WMCA.
Date of Arrest:
2024-01-06
Date of Arraignment:
2024-01-08
Location of Arrest:
Majoreni area, Lunga-Lunga sub-county
Contraband Seized: 
111.98 kg (5 pieces)
 

PROCEEDINGS

 
#12. September 16th, 2024 (Ruling): The court, with newly transferred Principal Magistrate L.W. Kabaria, ruled today that the defence has a case to answer.   A mention date was set for October 1st when directions on mode of defence will be given. 
 
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#11. August 23rd, 2024 (Mention): The court has set a ruling date for September 16th.
 
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#10. August 12th, 2024 (Hearing):  SEEJ-AFRICA did not attend, unaware of the change in date. It is not known at this time if the hearing took place. The court has set a mention date of August 23rd. 
 
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#09. July 29th, 2024 (Mention): A change was made in the court date and on this date the next hearing date was brought forward from September 3rd to August 12th.
 
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#08. July 16th, 2024 (Hearing): Today’s hearing did not take place as court 1 was not sitting. This was also a country wide demonstration day. The next hearing date has been set for September 3rd, 2024.
 
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#07. June 11th, 2024 (Hearing): The first prosecution witness in this matter testified today.  Ranger A.B. was one of the officers on the arrest team and recounted the events and seizure of January 6th, 2024. The matter was adjourned for the next hearing date of July 16th, 2024.
 
Examination in Chief

My name is A.B., a ranger with KWS and with 17 years’ experience. I am stationed at Mombasa offices.

That on 5th January, 2024 at around 6:00 p.m., I received a call from Sergeant C.D. to meet at her office for a briefing.

At the office I met E.F. and G.H. who are also officers with KWS. Sergeant C.D. informed us that she had received intelligence from Alias Mohammed  that there were two individuals in possession of five pieces of ivory looking to sell in Katereni area. The tusks were to be ferried using motor vehicle registration number KDE 523U, black in colour, Nissan Lafesta.

We then assigned ourselves different roles for the following day. C.D. would be the leader, E.F. would be the driver, officer G.H. and I would be the backup and arresting officers.

The transaction would take place the following day, on 6th January, 2024 between 6: 00a.m and 7:00 a.m.

At around 4:30 a.m. on 6th January, 2024, we boarded an unmarked vehicle and left Mombasa for Majereni area. The intelligence officer, Alias Mohammed and a driver boarded another vehicle.

Just before getting to Majereni area, C.D. informed us that the surveillance team at Majereni area, that is, I.J. and K.L. had confirmed they had spotted the motor vehicle leaving Majereni Centre towards Kidhini. There were two occupants in the motor vehicle and this matched the intelligence information.

Our intelligence officer confirmed to C.D. that indeed the car had been spotted.

We followed the black motor vehicle from a distance. The motor vehicle made a U-turn and followed the motor vehicle with the intelligence officer on-board. We proceeded to follow them from a distance. The black motor vehicle took a right turn into a muddy road. The motor vehicle that the intelligence officer had boarded could not take the muddy road due to its terrain and Alias Mohammed alighted and approached the black motor vehicle which had stopped.

A woman alighted from the driver’s side and had a brief conversation. The second occupant alighted from the c0-driver’s side.

The trunk of the black motor vehicle was opened and the intelligence officer signalled that there were tusks in the car.

The rest of the team moved to the scene and C.D. introduced us as KWS officers. I saw two nylon sacks that had some luggage in it. The first luggage had one tusk concealed in two nylon sacks. The second luggage had two pieces of tusks concealed in one nylon sack. The third luggage had two pieces of tusks concealed in two green nylon sacks.

The driver of the black motor vehicle was asked whether she had a licence to possess the tusks to which she responded that she did not.

Sergeant I.J. informed the two occupants that it was an offence to be in possession of tusks without a licence from KWS.

I was mandated to take photographs at the scene, which I did. The first photograph was the luggage in the trunk, the second photograph was of the luggage removed from the car, the third photo was of the tusks taken out of the nylon tusks, the fourth photograph was the rear side of the motor vehicle registration number KDE 523U and fourth photograph is of the front side of the motor vehicle.

I prepared a certificate of photography dated 10th January, 2024, certificate number 2926.

I also prepared a report on the motor vehicle, the five tusks, that were at the scene. The arresting officers went and the two suspects went ahead and signed the report on 6th January, 2024.

Prosecution: the same is marked as MFI5.

PW1: I also recorded a statement.

I later came to find out that the driver’s name is Tina and the co-driver Bahatisha. I had never known them before; I saw them for the first time on the day of the arrest.

Prosecution: at what time did the arrest take place?

PW1: At around 9:00 a.m.

Prosecution: Did you talk to Alias Mohammed?

PW1: Only the driver spoke to him.

Prosecution: Where was the arresting team located?

PW1: The arresting team was hiding in a position where they could see what was happening.

There was no charcoal in the black motor vehicle.

Tusks are in court marked as 6(i)-6(v)

The four sacks are in court marked as MFI 6(a-6(d)

The photographs are marked as MFI 2(a)-(e)

The certificate is marked a s MFI 3(a)

Gazette Notice is marked as MFI 3(b)

Inventory is marked a s MFI 4

Cross-examination

Counsel: Were you at the scene?

PW1: Yes
 
Counsel: How far were you from the black motor vehicle?PW1: 20 meters
 
Counsel: Were you in a position to see everything clearly?PW1: Yes
 
Counsel: How you organized yourselves indicates you were ready to go and gather evidence and link the two accused to the trophies?
PW1: Yes
 
Counsel: Do either of the accused appear in the photographs that have been produced in court?
PW1: No, they do not appear
Counsel: With the way you were positioned, you could see the accuseds but they could not see you?
PW1: Yes
 
Counsel: Why could you not allow them to see you?
PW1: It would have compromised the operation
 
Counsel: other than the accuseds, did you see anyone else in the motor vehicle?
PW1: No
 
Counsel: How long have you known alias Mohammed?
PW1: I did not know him before the day of the ambush
 
Counsel: How sure are you alias Mohammed was not involved?
PW1: I would not know as I was only following instructions
 
Counsel: You said the accuseds were looking for a buyer?PW1: Yes
 
Counsel: Was there any buyer at the scene?
PW1: No
 
Counsel: Did Alias Mohammed have any prior conversations with the accuseds?
PW1: No
 
Counsel: Was any deposit paid to the accuseds?
PW1: No
 
Counsel: Was there any sale agreement?
PW1: No
 
Counsel: Did you know what the 1st accused and Alias Mohammed talked about?
PW1: No
 
Counsel: Did Alias Mohammed talk to the 2nd accused?PW1: No
 
Counsel: Were you there when the trophies were marked?PW1: No, it is the investigating officer who marked them.
 
Counsel: Did Alias Mohammed or the accuseds place the luggage in the trunk of the black motor vehicle?
PW1: No
 
Counsel: Are the trophies in court the same as the ones at the scene?
PW1: Yes, as per the photos.
 
Counsel: What distinguishes the trophies from any other?PW1: Thay are whole pieces and I was informed these were the ones at the crime scene.
 
Counsel: What was the involvement of the 2nd accused?PW1: She was seated in the co-driver’s seat.
 
Counsel: Did you enquire what the 2nd accused was doing in the black motor vehicle?
PW1: No
 
Counsel: Did you know the accuseds were going to collect charcoal at the crime scene?
PW1: no.
 
Counsel: Who should have a licence for possession of trophies?
PW1: Anyone in possession of trophies.
 
Counsel: Was Alias Mohammed in possession of the trophies?
PW1: I do not know
 
Counsel: Do you know it is alleged the accuseds were going to collect charcoal that had been placed under a tree by a seller and only came to know that the contents of the luggage was trophies at the time of the ambush?
PW1: No
 
Counsel: It is claimed that the whole ambush was a set up.
PW1: No, it was not.
 
Counsel: Where is the weighing machine that was used to weigh the trophies?
PW1: In court (shows the court)
 
Counsel: How did Alias Mohammed get to know about the trophies?
PW1: I do not know
 
Re-examination:
Prosecution: When did you get to know about the case?
PW1: I knew about the case on 5th January, 2024.
 
Prosecution: Who gave you information on the case before court today?
PW1: The information was passed on to me by Sergeant C.D.
 
Prosecution: Had you worked with Alias Mohammed before?
PW1: I have never worked with Alias Mohammed before this case
 
Prosecution: At what point did you take the photographs?PW1: I took photos of the luggage before they were carried from the scene.
 
Prosecution: Which photographs show the trophies?
PW1: MFI 2 shows the trophies.
 
Prosecution: Was Alias Mohammed on board the black motor vehicle and did he load the luggageinto its trunk.
PW1: Alias Mohammed was not in the black motor vehicle and he did not load the luggage into the vehicle.
 
PW1: There was no one else at the scene other than the arresting team and the accuseds
 
The matter was adjourned at around 2:15 p.m. and given a further hearing date of 16th July, 2024.
 
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#06. May 21st, 2024 (Hearing): Today’s hearing did not take place as the prosecutor was absent. The next hearing date is set for June 11th.
 
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#05. March 26th, 2024 (Hearing): Today’s hearing did not take place, by either chance and/or design. The court conducted a couple of virtual hearings in chambers and then gave out next court dates. However, neither defence counsel or KWS was present. Next hearing date is May 21st.
 
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#04. March 12th, 2024 (Mention): All relevant parties present. Hearing will begin as scheduled on March 26th.
 
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#03. February 21st, 2024 (Hearing): Today’s scheduled hearing did not take place. A new defence counsel came on record advising that she had just been brought on by the accused for this matter as of yesterday. She requested an adjournment to allow her time to prepare.
 
The other matter to be dealt with today was an allegation by the accused that their identification had been taken during the arrest process and not returned. The KWS IO testified that he had spoken to the 4 KWS officers who escorted the accused from Shimoni police station to Msambweni police station and all stated that they did not take or withhold their ID. Defence counsel identified a specific officer who is alleged to have taken the ID but the IO believed that the allegation was an after thought, a ploy to divert the courts focus from the matter at hand.
 
Separately, one of the witnesses is protected, so a mention date of March 12th was set to ascertain the status of the witness protection order and that counsel have all required statements. A hearing date of March 26th was also set.
 
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#02. January 24th, 2024 (Pre-trial Mention): All relevant persons were in court, including the KWS IO. The two accused were not represented. The prosecutor, Alice Mbaeh, gave both accused their disclosure packages. The accused then applied to the court for the return of their motor vehicle, mobile phones, and identification.
 
The KWS IO gave testimony relating to the vehicle and mobile phones, the phones presently being analyzed. The court subsequently ruled that the phones and vehicle will not be released until the conclusion of the trial.
 
There was some question as to the location of the identification of the accused, with KWS stating that they did not have it. CM Ogot requested a status report on that matter on the next hearing date being February 21st. 
 
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#01. January 6th, 2024 (Plea): During today’s arraignment, the two accused pleaded not guilty before Chief Magistrate Sandra Ogot. The ivory exhibits were on display for the court. Bond has been set at KES 3 million and two sureties. The matter will next be mentioned on January 24th with fresh hearing date of February 21st, 2024. 

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