By Chris Morris
Nairobi April 9th, 2024: Today, in Kahawa Law Courts, Court #2, Principal Magistrate Gideon Kiage Oenga, acquitted Edward Mwambura Kamau, Peter Macharia Njuguna, Martin Mungai Nginya, and Samuel Njuguna Mwirigi, of dealing in wildlife trophies. They had been charged accordingly in July 2021 in Kangari Town, Muranga County, allegedly found with 19 pieces of ivory. The announced weight at the time was 100 kg. They were subsequently arraigned and tried at Kahawa law courts.
The court held that in Kenyan law, cases should be proved beyond reasonable doubt, therefore mere suspicion cannot suffice. The court held that the evidence provided in this prosecution fell under the required standard and it could not proceed to find the accused persons guilty. The evidence was doubtful, and the circumstantial evidence failed to meet the threshold of beyond reasonable doubt. The Hon. Kiage acquitted all accused under Section 215 CPC. The ivory is to remain at KWS and an order will be made for its destruction.
The courts made reference to specific difficulties as detailed below. It should be noted that in this arrest, the Special Service Unit (SSU), was the lead agency. The SSU was considered an elite unit of the Directorate of Criminal Investigations but was disbanded in October 2022 for conducting extrajudicial killings. The SSU was previously known as the Special Crimes Prevention Unit (SCPU).
This is significant as there have been past investigations where the SCPU has made arrests and charged individuals with offences under the WMCA, leaving KWS to administer the file as the prosecution continued through the courts. Information sharing and collaboration were not optimal and a challenge for KWS. In this particular instance, while the IO is from KWS, the issues may well not be of his, or KWS’s, making.
The court had issues with the following:
1. While there was mention of a KWS undercover ‘buyer’, no evidence of communication between the ‘buyer’ (or any other arresting officer) and any accused was provided to the court.
2. The owner of the vehicle that was found to contain the 62 kg of ivory could not be traced and was not brought to court.
3. The IO had told the court that there was no evidence to indicate that accused were communicating with each other and he had also stated he could not confirm why the 2nd accused was arrested.
4. The court was told that a forensic analysis of phones was not conducted as the phones could not be opened due to lack of PIN access.
5. The IO had testified that in admissions made to him, the 1st accused had custody of ivory and 3rd accused was a broker for the 4th accused. The court observed, however, that there was no evidence that the IO had followed the parameters as set out in Section 25 of the Evidence Act on receiving a confession statement and therefore, the evidence could not be supported.
It is also to be noted that in the well publicized arrest, it was announced that 19 pieces of ivory weighing 100 kg had been seized. On arraignment, the weight of the ivory had decreased by 38 kg to 62 kg. It was suggested that it was due to different scales being used.
The court also suggested to the prosecution that in these cases, the evidence should be such that it provides a clear picture of events. As such, the prosecution should provide advice to investigators.
Are the questions to be asked of competence, corroboration, or compromise?
More details can be read at E027/21 Kahawa 62 kg.
Original media story below.
Four people arrested with 100kg of elephant tusks worth over Ksh.10 million
Four people were on Sunday afternoon arrested in possession of 100kg of elephant tusks worth over Ksh.10 million for illegal trade in Kangari town, Murang’a County.
The four; Martin Mungai Nginya (58), Peter Macharia Njuguna (32), Edward Mwambura Kamau (55) and Samuel Njuguna Mwirigi (43) were found in possession of 19 pieces of the jumbo tusks.
The suspects were ambushed in two separate motor vehicles ready to conduct the illegal trade by a multi-agency team christened ‘Interpol Usalama 7’ that has been pursuing the syndicate.
The sleuths confiscated the cargo stashed in the boot of one of the cars in two sacks guised as loads of cabbages.
“The suspects have since been placed in custody and undergoing investigative interviewing, with detectives seeking to effect more arrests on possible poachers and the targeted market for the products,” read a police statement.
