Proceedings
#38. May 28th, 2024 (Mention – Mitigation): The matter was in court today for defence to present arguments on mitigation of sentence.Present in court were the accused and his defence. The defence filed several submissions for the court to consider while delivering the sentencing.
The accused has two children, one 5 years old and the other 2 and a half years old, who are currently residing with his mother-in-law because his wife is in Saudi Arabia.
The accused wishes to pass his remorse to the court and inform the court he is done with that part of his life. He will not repeat such an offence and he prays that the court be lenient in its sentence.
According to Paragraph 2.3.12 of the sentencing policy guidelines states that a custodial sentence should be reserved for when a crime is so serious that a fine or a community sentence cannot be applied. He also quoted sections 92.4 and 95 of the Wildlife Conservation Act which provides the option of a fine as one of the sentences.
The Sentencing Policy Guidelines further state in 2.3.15 that while considering between a custodial and non-custodial sentence one should consider the gravity of the crime and the criminal history of the offender.
The defence requested the court to consider a non-custodial sentence since there were no aggravating circumstances in this matter and the accused is a first-time offender.
In terms of the fine, section 2.7.7 of the sentencing policy guidelines states that a fine should impose a hardship on the offender but should not force the offender below a reasonable subsistence level. The prosecution has not provided any evidence that should make the court deviate from the minimum sentence stipulated in the WCMA. Taking into account the minimum fine for both charges the fine should total 4 million Kenyan shillings.
Due to the accused’s financial state, paragraph 2.7.9 of the sentencing policy guidelines states that if an offender cannot pay the lump sum fine, the court can stipulate a given duration in which the amount should be paid. This arrangement is possible under two conditions; the offender can execute fresh bond terms and failure to pay an instalment will result in the offender’s arrest and the balance requested in lump sum. To ensure the offender does not abscond, paragraph 2.7.11 allows the court to fix a mention date on the 14th day from when an instalment is payable.
To ensure that the accused benefits from the discretion of the court, the defence also stated that the accused was interviewed by a probation and aftercare services officer on 27th May 2024.
The court will pass sentence on June 11th, 2024.
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#37. May 22nd, 2024 (Judgement): Senior Principal Magistrate S.O. Temu today convicted the accused, Antony Ngila Masaku, of possession of 5 kg of ivory, found in his home on July 20th, 2019. Sentencing is slated for May 28th, 2024. The accused presently has a bush meat case ongoing in another Kibera court.
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#36. May 15th, 2024 (Judgement): Today’s judgement in case file number 1541/19 was postponed today at the Kibera Law Courts, leaving the accused person in suspense for another week. The session in courtroom 2, presided over by Hon. Temu, started at 9:30 AM with expectations for a verdict for this case. However, it was later reported that the judgement would be adjourned.
The proceedings took an unexpected turn around 12:00 hrs after the court had gone for a brief break. Attendees waiting in the courtroom for the return of the magistrate to the bench, were informed that Hon. Temu would not be returning to the courtroom. Instead, he was to issue new dates for the pending cases from his chambers.
Reportedly, and specifically relating to this prosecution, there were complications arising from the records maintained by the previous magistrate who initially had the file. It was reported that the concern was the legibility of these records, which necessitated further review. Hon. Temu indicated that he would require an additional week to resolve the issues pertaining to these documents.
In light of these developments, the judgement has been rescheduled for May 22nd. SEEJ-AFRICA can confirm the accused’s attendance as he and his attorney accompanied the prosecutor to Hon. Temu’s chambers.
by E. Gutu
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#35. April 11th, 2024 ( Mention): The court has set a judgement date of May 15th. (SEEJ-AFRICA not in attendance.)
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#34. March 12th, 2024 ( Mention): Another mention date set of April 11th. (SEEJ-AFRICA not in attendance).
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#33. February 13th, 2024 ( Defence Hearing): The defence hearing was before Hon S. O. Temu. The prosecutor, the accused, and his lawyer were in court. The accused did not have any witnesses.
The accused stated that he lives in Machakos and works as a boda boda rider.
On the day he was arrested, the accused was at home when he heard a knock on his door. Those that knocked at his door (officers) called out his name which prompted him to open the door. He was told to lie down and was handcuffed by the officers. The officer told him they would be searching his premises to which he requested to be present in the room as they searched.
The house is a one-room so some of the officers had to stay outside during the search. In the house, the officers searched through his belongings. They opened his suitcase and removed a “Gunia” ( a manilla sack ) that had a white substance in it. The officers called the other officers and told them they found what they were looking for. The officers took pictures and escorted the accused outside the building to a waiting car.
They took him to KWS headquarters, where they took more pictures of him holding the evidence. He was later brought papers to sign, which he refused at first stating that he wanted to read the contents . He was then taken to Langata Police station.
The next day he was taken to court where he was charged with handling 100 kg of zebra or giraffe meat. He was then taken to Industrial area prison. On July 25th, he was taken to court again and charged with handling ivory.
For the meat charge, he was offered a cash bail of ksh. 150,000.00 or a 1 million bond and he got out on bail.
He was then arrested two more times and charged with handling ivory. The first arrest happened outside court premises as he was departing a ‘mention’ for the meat handling charges. He was arrested a second time, again on court premises when he was attending a court session on the same meat case.
After the second arrest, the accused was offered bail and bond terms and he got out on bail.
He then requested the magistrate for assistance saying that he feels like he has 4 cases.
There was no cross-examination. The next court date is March 12th, 2024 for a mention.
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# 32. February 6th, 2024 (Defence Hearing): The matter was before Hon. S.O. Temu, for defence hearing. The accused, prosecutor and defence counsel were all present in court.
The defence counsel requested for a new date as he was bereaved and needed to attend to the matter. The hearing has now been rescheduled to February 13th, 2024
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#31. January 24th, 2024 ( Defence Hearing):The scheduled Hearing did not go ahead as the Defence Counsel was absent. Through the accused the court set a new date; February 6th, 2024.
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# 30. November 15th, 2023 (Ruling):
The Hon Magistrate gave a ruling; the Defence had a case to answer, therefore the Defence Hearing date is set for January 24th, 2024.
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#29. October 30th, 2023 (Mention). The defense attorney submitted the submissions to the court for review. The court scheduled the ruling for the November 15th, 2024
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#28. October 19th, 2023 (Mention): Did not attend (DNA)
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#27. September 27th, 2023 (Hearing): Todays hearing took place with three witnesses.
The first witness was G.H., attached to the KWS Headquarters investigation department. He was called to the office by the officer in charge, A.B. He found her with two colleagues. They were briefed about the intelligence received. A suspect poacher had been sighted at Tala shopping Centre.
They organized themselves and went to Tala Station, arriving at 14:15 hrs, where they picked up police backup.
They then proceeded to the said location at house no. 4. The door was locked from inside. They knocked at the door, one of the officers called out his name and the door was opened. The man who opened identified himself as Antony Ngila.
After confirmation that this was the suspect being sought after, a search was carried out by the arresting officer ( E.F.). Another officer was processing the scene. The house was 10 by 10. The rest of the team stood at the door.
The arresting officer retrieved four pieces of elephant tusks inside a suitcase on top of a chair. The tusks were wrapped in a purple bag which was in a yellow and white Manilla bag. The accused was asked to produce a permit, which he could not provide. He was arrested and taken to KWS Headquarters.
An inventory of the items was taken that day. It was signed by the arresting officers and the accused.
Defence Lawyer Cross Examination
The recovery was done by E.F. but inventory was done by someone else?
Answer: All the items were in a suitcase, carrier bag and the purple bag.
Where is the suitcase? It had personal belongings of the suspect so it was not brought in..
The two officers from Tala , were they DCI , were they with you?
Answer: There was one but not part of the operation.
The search was conducted by E.F. but scene of crime was processed by C.D. and the rest of you were standing at the door.
Answer: Yes
Does it mean that A.B. had the description of the suspect or just the name.
Answer : Name
PW4
CPL in the investigation department. She was contacted by the officer in charge and advised they should meet at the KWS headquarters with three other officers who were working on intelligence received of a suspect who was at large and had been sighted at Tala. They went by Tala Police station, they took a back up of two officers.
They went into Tala town and located the building where the suspect was. A.B. was in charge of the operation. The suspect hesitated to open the door but did so upon them identifying themselves. Two officers (C.D. and E.F.) got into the house and the rest of the team remained outside. They located 4 pieces of elephant tusks in a briefcase.
The suspect was arrested and taken to KWS head quarters for statement recording.
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September 26th, 2023 (Hearing): The hearing came up before Hon. Temu. Two prosecution witnesses (PW) from KWS testified.
Testimony of PW1 ( A.B.)
She said that they received intelligence that a suspect that they had been looking for in the matter of a zebra skin case had been spotted in Tala. She then organised an operation team including, C.D., E.F., G.H., and I.J. They drove to Tala using a KWS vehicle, arriving there at 15:00 hrs. They stopped at Tala Police station and were given two policemen for backup.
They then went to La Familia building house no. 4. On arrival, PW1 knocked on the door with one of the officers calling out the accused’s name. He opened the door and was the only one present. The room was about 10 by 10 (to construe that the room was small).
Once introductions were done, E.F. did a search as C.D. took photos of the place. E.F. found elephant tusks concealed in a suitcase. PW1 confirms that she was able to see all that was going as she was right at the door way.
The accused was arrested and G.H. prepared the inventory. The accused was taken to the KWS headquarter and later booked at Langata Police station.
Testimony of PW2 (K.L.)
On 20th July 2019 he was told by his then in charge that his colleagues had apprehended a suspect in a wild life case, that they had been searching for.
K.L. stated that his colleagues arrived with the accused at 5 pm. One of the officers (G.H.) handed files and inventory to him. He later weighed the tusks which were at 5.08 kg. He also prepared a certificate for the same.
He prepared the file by taking statements from his colleagues. He also prepared a charge sheet and booked the suspect at Langata police station.
The matter was moved to the next day, September 27th, 2023.
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#25. September 25th, 2023 (Hearing): The hearing did not take place and was adjourned until the following day. (SEEJ-AFRICA not in attendance.
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#24. September 6th, 2023 (Hearing): The accused was present but his advocate was absent with another holding brief, relaying to the court that the advocate was at JKIA on another matter and so would avail himself at noon. The said lawyer did not attend and the hearing was adjourned to September 25th.
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#23. August 8th, 2023 (Hearing): The scheduled hearing did not take place. The KWS IO was absent on training. The hearing was adjourned to September 6th.
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#22. July 17th, 2023 (Hearing):The scheduled hearing did not take place, witnesses were present. Hearing date set for August 8th.
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#21. May 31st, 2023 (Hearing):The advocate for the accused was absent. Adjourned to July 17th for hearing. This file is now being handled by Senior Principal Magistrate S.O. Temu who has just transferred into Kibera.
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#20. April 11th, 2023 (Hearing): This was scheduled for hearing but was adjourned to May 31st. This was a SEEJ-AFRICA first attendance.