MCCR/1132/2015, the Republic (of Kenya) vs Abdulrahman Mahmoud Sheikh and eight others - a case study
Part 2 of Inside the Wildlife Crime Courtrooms of Kenya
By Chris Morris
PART ONE
PREFACE
INTRODUCTION
THE ENDING
THE CONTEXT
THE BEGINNING
THE INVESTIGATION – Logistics
THE INVESTIGATION – Arrests
THE INVESTIGATION – Consolidation Point & More Arrests
THE PROSECUTION – Decision to Charge
THE PROSECUTION – Ivory as an Exhibit
PREFACE
In April 2015, when Thailand authorities seized a container of Kenyan origin containing tea leaves and ivory, I had been in Kenya barely a month. Fresh in-country, a neophyte to the field of transnational wildlife crime, I was volunteering in Nairobi with the investigational NGO, The Eagle Network, when the story broke. Coming from an investigative background I was immediately drawn in by the circumstances surrounding the seizure. Unbeknownst to me at the time, almost nine years later, I would find myself sitting in Mombasa, watching the final acquittal.
This is a case study that comes from an ‘inside the courtroom’ perspective. It is a focus on the evidence presented, evidence not presented, as well as the processes involved. Purely by chance, I found myself uniquely positioned over the duration of the trial to gather publicly available court documents with other evidence, supplemented with open source and background information from a host of different sources. This includes my attendance at 23 of the last 26 court sittings.
Having heard first-hand the testimony of only the last four witnesses, revelations based on the testimony of the previous 24 witnesses came from a document that is referred to as a “typed proceedings”.
In all criminal proceedings that I have witnessed within the Kenyan court system, the record of a witness’s testimony comes from the presiding magistrate’s hand-written notes. Understandably, they are typically not easily read. That only becomes an issue if the presiding Magistrate is transferred and is replaced by another magistrate mid-trial. This is a common occurrence in many ivory related trials.
A magistrate transfer typically triggers a requirement for the handwritten notes to be typed, facilitating an easier read for the new incoming magistrate to familiarize themselves with what has previously transpired. Unfortunately, these typed proceedings can be wanting in accuracy. ‘Typos’ are common, particularly relating to dates, times, names of persons, or places. Also affecting accuracy is the court practise, in cross examination, whereby magistrates do not write down the question, just the answer. If counsel asks a question that requires just a ‘yes’ or ‘no’ answer, it may not even be recorded. Critical information can be and is regularly lost.
For these reasons, I have not taken the typed proceedings as definitive. Testimony that I believe to be critical has been verified through secondary sources.
In this case, the 113-page written ruling on acquittal of Chief Magistrate Martha Mutuku, summarizes the salient points of each witness’s testimony based on what she read or heard during trial. (She only heard testimony from 3 of the 28 witnesses.) Her ruling also revealed the contents of some of the documents, letters, and emails, submitted as exhibits by the prosecution during the course of the trial and not availed through open court.
During the nine years that I followed this prosecution, I also had the opportunity to observe, as well as source, various documents, judgements, rulings, relating to most other Kenyan major ivory seizure prosecutions. This included attending 17 sittings of MCCR/417/2013* – R. vs. Fredrick Sababu Mungule and James Kassiwa (3827 kg). This is one of only two convictions (the Feisal Mohamed Ali case is not counted as a conviction) registered in a major ivory trafficking case within Kenya since 2009. While the sentence rendered was less than optimal (two years imprisonment for 3827 kg ivory), I have pondered if in fact the registered conviction had anything to do with the case being monitored.
While this is a case study of only one prosecution, it is a microcosm of what is happening, and what has happened, in the prosecution of major wildlife cases in Kenya, and other sub-Saharan elephant range states. The ivory seizure on which this study is based is related either directly or indirectly, to a significant number of other ivory seizures, large and small, international and national, all at the hands of transnational organized crime (TOC) groups. There are 23 referenced ivory prosecution cases throughout this study and those marked with an asterisk have one other commonality, corruption/compromise. I use the term interchangeably. In local circles, it is my experience that ‘compromise’ is the word most oft used to describe cases before the court that have been hijacked by others, both inside and outside of the criminal justice system, whose interest is not based on justice.
The message to be conveyed in this ‘Postmortem’ cannot fit into a one or two-page, executive summary. There is too much to tell an it would not be believed. For those readers with time challenges, may I suggest going straight to the ‘Analysis of Evidence’ and the ‘Dénouement’. That may motivate for further reading.
MCCR/1132/2015* – Republic (of Kenya) vs. Abdulrahman Mahmoud Sheikh and eight others (3127 kg – Thailand) is not atypical in its outcome and investigational processes. Initial seizures, arrests and investigations, are touted as successes. The road of justice and deterrence, however, does not end with seizure and arrest. It travels through a courtroom. This case study is about one such journey.
INTRODUCTION
This chronicles a major ivory trafficking investigation and prosecution that failed. From a law enforcement and prosecutorial perspective, cases that do not end in a conviction are in the minority. Statistically, criminal justice systems often boast of conviction rates in the 90% range. That would not be the percentage for ivory trafficking cases involving thousands of kilograms of ivory, and particularly in Kenya.
But it is not that this particular prosecution failed. It is the manner in which it did so.
In a 2021 interview, the head of Kenya’s Directorate of Criminal Investigation (DCI) at the time, George Kinoti, candidly admitted that in the past “wildlife crime was not initially taken seriously as a major crime.”1 MCCR/1132/2015 – Republic vs. Abdulrahman Mahmoud Sheikh and eight others {3127 kg-Thailand}, (hereinafter ‘Sheikh’s et al’) was one of those cases.
‘Sheikh’s et al’ was certainly not the first or only ivory prosecution whereby all accused were acquitted. In fact, quite the opposite. If one was to examine past results of major wildlife trafficking trials globally, one would find that acquittals or questionable sentencings were the norm, not the exception.
But “The Sheikh’s case” as it was known colloquially, was atypical in that it spoke to almost all the issues that face investigations and prosecutions of TOC groups exporting quantities of wildlife or wildlife trophies across international boundaries. It involved multi-agency collaboration at the national and international level. The mutual legal assistance (MLA) process was required to expedite the transfer of exhibits between involved countries. A parallel financial and proceeds of crime investigation was initiated to examine the feasibility of asset recovery pending a conviction on the criminal charges. Interpol assistance was requested to located wanted fugitives and to liaise between involved national law enforcement agencies.
And there was a corruption factor, omnipresent in virtually all similar investigations, lurking within criminal justice systems that are fragile or susceptible to outside interference. Kenya would fall in that category. It took mere months for it to be realized that at least two of the major involved players in this investigation had benefactors with political clout.
Some may question why a prosecution that began in 2015 is even relevant in 2025. The explanation is simple. Despite all the rhetoric and the hundreds of millions of dollars that have been poured into the conservation justice realm in Africa, from a justice and deterrence perspective, little has changed. Yes, the standard of investigations, bolstered with a considerable international NGO presence, has improved. But investigation is only 50% of the justice and deterrence equation. The other 50%, the prosecution and the courtroom process, is just as critical and that is where all the same vulnerabilities present themselves.
This 2015 case is also relevant due to its high-profile, particularly in the early years. A number of international investigational agencies and NGO’s lent their assistance or support including Interpol, U.S. Fish and Wildlife Service (USFW), U.S. Department of Homeland Security, Lusaka Agreement Task Force (LATF), Environmental Investigative Agency (EIA), Eagle Network, Satoe Project, Basel Governance, Center for Advanced Defence Studies (C4ADS), Center for Environmental Forensic Science, Wildlife Direct, and Freeland.
This case was also the subject, or received mention, in several publications including those from the Financial Action Task Force (FATF)2, Global Initiative Against Transnational Organized Crime (GITOC)3, TRAFFIC4, Wildlife Direct5, and Wall Street Journal6. Two of the case antagonists, Nicholas and Samuel Jefwa, were also featured in the film documentary, “The Planet Killers – The Ivory Kings”7.
In the end, however, it became just another wildlife case that had been frittered away, another wasted opportunity at justice for the higher-level players, like all the others before it.
The purpose of this case study is twofold. The first is to present an in-depth look at the process of a wildlife trafficking trial while at the same time providing insights into reasons for its extended eight-year duration. There are many proponents who believe that trial length is a strong indicator of a compromised proceedings8. Kenya has had two other major ivory prosecutions that took similar extended periods of time. They were both related to this seizure under study.
The second, and primary purpose is to provide an answer to the question oft asked in similar major ivory trafficking cases but rarely answered. Did this prosecution fail for technical reasons or did it ‘fail’ because an individual(s) or entity outside the sphere of the criminal justice system wanted it so. Was the acquittal due to a lack of institutional capacity, presented through procedural errors, sub-standard case management, and absence of leadership? Or was this ‘failure’ pre-ordained and/or orchestrated by persons in positions of influence who had the ability to effect decision making at key times and in key areas during the trial, thereby guaranteeing an acquittal?
It is in only the rarest of cases where a ‘smoking gun’ presents itself during a trial or investigation, one that can identify conclusively the specific individuals or entities who have subverted justice. The ‘Sheikh’s et al’ was not one of those rare cases. There were, however, significant breakdowns and failures in essentially every aspect of this investigation and prosecution that taken in totality, provides compelling circumstantial evidence to question the integrity and validity of the process.
One of the lead investigators, in one of his affidavits submitted to the court, made a reference “that the ongoing investigations are of a complex nature involving cross cutting issues, foreign jurisdictions, and requiring mutual legal assistance and diplomatic formalities.”9
‘Complex’ was the adjective most often used by prosecutors when characterizing this case, particularly when addressing the court and providing justification for prosecutorial delays and/or issues with the mutual legal assistance process. While perhaps an oversimplification, complex is absolutely the correct word to describe the numerous and varied layers and sub-plots that played out throughout ‘Sheikh’s’ et al’.
This report will touch on most of them, certainly all that bear relevance to the final acquittal ruling and the aspect of corruption. The investigation, the prosecution, the mutual legal assistance requests, the proceeds of crime/asset recovery investigation, the search for the Jefwa brothers, the new evidence application (or second mutual legal assistance request), courtroom delays, the absence of phone data, the use of container seals, the sister Singapore seizure that was not prosecuted, and how this Thailand seizure was related and/or linked to many others, and not only in Kenya.
THE ENDING
The final pronouncement came on October 19th, 2023, eight years and five months after the first accused persons were arraigned. Mombasa Chief Magistrate, Martha Mutuku, the fourth (or fifth depending on perspective) magistrate (judge) to handle this matter, in a succinct oral statement that lasted 55 seconds, (condensed from a 113-page written ruling), declared that the nine accused persons were acquitted. After well over 100 sittings (combining criminal proceedings and related miscellaneous applications) and testimony from 28 witnesses, the Office of the Director of Public Prosecutions (ODPP) had not furnished the court sufficient evidence to prove the facts of the charges.
And surely the method of delivery and timing of the ruling was symbolic. Early on a Thursday afternoon, the last working day of the week before a long holiday weekend, delivered virtually while ensconced in her chambers, to a meagre audience of the nine accused, their counsel, Alex Gituma holding brief for lead Mombasa prosecutor, Jami Yamina, and a handful of interested parties, the low of the moment compounded by way of the honourable Magistrate, who twice mistakenly referred to the country of seizure as Taiwan, and not Thailand.
“After considering the evidence that has been adduced by the prosecution, I find that it was clearly stated that Taiwan (Thailand) declined in cooperating with Kenya to provide mutual legal assistance so I find that is a very big gap and weakness in the prosecution case considering the fact that the court never got an opportunity to know or to see what was in the containers and what was allegedly taken to Taiwan (Thailand) in order to connect any of the accused persons with the charges before court. With that said, I find that no prima facie case has been established to warrant any of the accused persons to be placed on their defence and consequently all the accused persons are acquitted under section 210 CPC for lack of evidence.”10
The acquittal was not a shock despite what appeared, in its early days, to be an investigation of promise. In June 2015, Abdulrahman Mahmoud Sheikh (A#1), his half-brother Sheikh Abdulrahman Mahmoud (A#2), his father, Mahmoud Abdulrahman Sheikh (A#3), and six others had been charged with dealing in wildlife trophies, illegal exportation, and engaging in organized crime. It was alleged that the nine conspirators, in addition to exporters, Nicholas and Samuel Jefwa, had been behind the container shipment of 3127 kg of ivory that had been seized in Bangkok, Thailand, two months previous. 511 elephant tusks were found in a sea container from Mombasa, hidden in amongst bags of tea leaves. Its final destination, after mid-journey consignee changes, was Vietnam.
In Kenya, there had never been a major ivory prosecution with so many accused. It was also the first ivory case to have an organized crime charge and the first to see a financial crime aspect to the investigation.
The court case received considerable media attention in the early days and months, attention stoked through the involvement of the well-known logistics firm, Siginon Global Logistics. Siginon was considered at the time to be one of Kenya’s largest and well-established cargo companies, and part of the business empire of ex-President Daniel Arap Moi and his family. But as is the way of all long winded prosecutions, interest waned in the matter and when the acquittal finally arrived 85 months later, it featured in only one national daily under the banner: ‘How state lost Sh570m ivory smuggling case’.11
If one’s knowledge of the case was based on that one media article, one might think that the acquittal came from failed ‘mutual legal assistance’ between Kenya and Thailand (that included Thailand’s refusal to return the 3127 kg of seized ivory) and/or evidence insufficient to implicate the accused. While none of the listed reasons were good, they were somewhat palatable, all circumstances considered. But was it the truth, the whole truth and nothing but the truth? The view from inside the courtroom presented a different perspective.
THE CONTEXT
In 2015, the poaching and trafficking of elephant ivory was more than just a concern. Hundreds of tonnes of ivory continued to exit Africa for South-east Asia. The Great Elephant Census12 was in the midst of completion but evidence of the plummeting herds was already reaching the public domain. It would be discovered that Tanzania had lost 60% of its savannah elephant population in the past 5 years. Mozambique came in at a 53% decline with significant losses also in Angola. Forest elephant population declines of worrying significance were to be noted in northern Cameroon and north-east Democratic Republic of Congo. These losses were attributed primarily to increased poaching
Not realised in 2015, incredibly and unbelievably, much of this ivory exiting the entire continent, east, west, and south, was being run by a West African crime group based in Kampala, Uganda. Seemingly headed by a Liberian refugee by the name of Moazu Kromah, this group of primarily Guineans and Malians, were despatching ivory (and other wildlife products) utilizing shipping containers and air freight from all points of the African compass.13,14
An indictment written by the United States South District Court of New York, on Kromah’s 2019 arrest, headed by the U.S. Fish and Wildlife Service and DEA, stated that this criminal organization, referred to as the “Enterprise”, conspired to transport, distribute, sell and smuggle ivory and rhino horn since at least 2012, to countries including, Uganda, Democratic Republic of Congo, Guinea, Kenya, Mozambique, Senegal, and Tanzania. This indictment was understated. The three others named in the indictment were another Guinean, Amara Cherif, and two Kenyan’s, Mansur Mohamed Surur and Abdi Hussein Ahmed.15
In 2015, primary amongst the pipelines utilized by the West African TCO, was Tanzanian ivory transported by road into Kampala and then forwarded, either by lorry/container to Mombasa for sea shipment or by way of air freight out of Entebbe airport (Kampala). The Kromah led cartel also had access to the Burundi government ivory stockpile with which he was supplementing his shipments16. That unfettered access continued until at least 2019.
In 2015, law enforcement activity against the West African TOC was minimal and generally compromised. While some of this group and their shipments were subject to occasional arrest and seizure, the resulting court cases, if they made it that far, typically concluded with either charges being withdrawn, acquittals, or deportations mid-trial to their country of origin. The few convictions registered were characterized by fine amounts in lieu of jail time that could easily be paid from organized crime coffers.
An example of this was a fortuitous ivory seizure made in Nairobi in April 2014 when a tip to police led to the discovery at a local garage of 784 kg of ivory found inside a disabled water tanker truck17.
Three men were arrested, one Kenyan and two Guineans. One of the Guineans, N’Faly Doukoure, was deported to Guinea on May 8th, 2015, midway through court proceedings (MCCR/1673/2014* – R. vs. Kenneth Kamau Maina & N’faly Doukoure {784 kg}) on the signed order of the Cabinet Secretary for the Interior, Major General (Rtd.) Joseph Ole Nkaissery. The second Guinean arrested was Amara Cherif, who was amongst the leadership of the West African cartel. He was released without charge. The other accused, Kenneth Kamau Maina, after a five-year trial was found guilty by Chief Magistrate Elizabeth Juma of possession of wildlife trophies (one may question how 784 kg constituted ‘possession’). Maina was sentenced to pay a one million shilling fine (USD $10,000) or serve five years in prison in lieu of payment. He had been previously charged (PCR/2305/2011 – R. vs. Kenneth Kamau Maina {1332 kg}) and acquitted18 in relation to an ivory seizure (reported initially as 2160 kg) made at Nairobi’s Jomo Kenyatta International Airport (JKIA) in 2010. That was also believed to be a West African TCO shipment.
It was this same West African crime group who was supplying the ivory (allegedly) that was the substance of the charges faced by ‘Sheikh’s et al’ in June of 2015.
Also in 2015, from a global perspective, the Kenyan port of Mombasa was seen as synonymous to the ivory trade, perceived as the primary port of egress for ivory from the African continent. When ‘Sheikh’s et al’ were arraigned in June 2015, there were five other trials involving major ivory seizures ongoing at the Mombasa law courts.
Sammy Ndigirigi Maina, a clearing agent, was facing charges relating to a December 2011 shipment of 727 pieces of ivory that were seized in Mombasa port prior to embarking for Dubai (MCCR/530/2012).19 The initial weight on seizure was reported at 1899 kg but was reduced to 1500 kg by the time it reached court.
Another clearing agent, Fredrick Sababu Mungule, and KRA employee, James Ngala Kassiwa, were being tried in relation to a seizure of 3827 kg of ivory at Mombasa port on January 14th, 2013.(MCCR/417/2013*).20 Both cases were before Senior Resident Magistrate R. Odenyo.
In another Mombasa courtroom and before Chief Magistrate Stephen Riechi, the same Fredrick Sababu Mungule, James Ngala Kassiwa, and with the addition of Nelson Ayoo, were accused in a sister seizure to the January 14th occurrence, but this time discovered in Singapore. (The charges in MCCR/754/2013* specified a weight of 1833 kg but the initial reported seizure weight was 1848.5 kg).
In the court of Chief Magistrate J.M. Nang’ea was the prosecution of another clearing agent, Nelson Maweu John, for his part in a 3287 kg ivory seizure that was caught in Mombasa port in July 2013 before departing for Malaysia (MCCR/3081/2013)21.
And in one more courtroom, the Republic vs Abdul Halim Sadiq Omar and five others including Mombasa businessman, Feisal Mohamed Ali (FMA),22 was playing out over charges relating to 2152 kg of ivory found in the compound of a Mombasa car dealership. At the time of the Sheikh’s arraignment, the FMA matter had already witnessed some significant integrity issues and unbeknownst to the presiding Magistrate, Davis Karani, he was just four months from being suspended, also for integrity issues23.
At this point in time, the number of prosecutions initiated by Kenya against international wildlife traffickers was being lauded and noted internationally with optimism.
THE BEGINNING
Thailand was the beginning. On April 25th, 2015, Thai customs announced the seizure of a sea container at Laem Chabang Port containing 3127 kg of elephant ivory. The 511 tusks were found in sisal, ‘long grain rice’ bags obfuscated through a declared cargo of tea leaves. This Mombasa shipment was the first recorded ivory seizure with tea leaves as the cover load and Thailand’s second largest ivory seizure ever.24
The significance of that seizure, however, was amplified by Thailand’s largest ever ivory seizure seven days previous. On April 18th, authorities in Bangkok recovered four tonnes of ivory in the form of 739 tusks in a container of beans that originated in Matadi, Democratic Republic of Congo25. It meant that Thailand had seized over seven tonnes of ivory in the space of a week, from opposite sides of the African continent, both organised for road transport to the same Laotian destination, the small town of Muang Champassak, an approximate 11-hour drive from Bangkok.26 While the shipments had different consignees, it would be difficult for most to believe that there did not exist, some type of business relationship between the two.
It was reported that both seizures were the result of tip offs. The ‘tea leaves’ shipment resulting from the ‘notify party’, Indochina International Group Ltd, forewarning authorities that an unauthorized shipment was moving under their name. A second report, however, and never made public, identified the tipster on both ivory consignments as being one and the same. Clearly significant, if connected, for shipments coming from West and East Africa.26
The investigation into the ‘Sheikh’s et al’ began on or about April 30th, 2015, with the heat being turned up substantially when a second Mombasa shipment of ivory arrived in Singapore on May 16th. This time the seizure consisted of two 20’ containers, each with a cover load of tea leaves and found in the same sisal ‘long grain rice’ bags recovered in Thailand. The total weight of the seized ivory was initially announced at 3.7 tonnes and included four rhino horn and a small quantity of lions’ teeth. The ivory weight was later revised to 4600 kg.27
The Kenyan investigation was ramped up with this second seizure and an inter-agency task force was constituted by Francis Muhoro, the head of Kenya’s Directorate of Criminal Investigations (DCI). The team included elements of DCI Headquarters Mombasa, DCI officers from Kenya Revenue Agency (KRA), DCI Kilindini (Mombasa port), Kenya Wildlife Service (KWS), the Ethics and Anti-Corruption Commission (EACC), and the Kenya Ports Authority (KPA).
The investigative team was led by DCI Superintendent Alphonce Odhiambo Kamlus, who at the time, was in charge of the Economic Crime Unit based in Nairobi. His point man in Mombasa was Chief Inspector (CI) James Githinji, who was on a secondment to KRA Mombasa Revenue Protection. CI Githinji had been in Mombasa for a few years at this point and had been involved in a number of previous ivory trafficking investigations.
Kenya had been embarrassed by these back-to-back seizures and was keen to exonerate itself or so it seemed. DCI Director Muhoro stated six years later in a video documentary, that “this was tarnishing the good name of Kenya”7. Even President Kenyatta made mention of this investigation in an unrelated, nationally televised June address stating; “We will want to know, and I will not stop until we find out those responsible, they will all be arrested for letting us down as a nation.”28 By the time those remarks had been made, 15 persons had been arrested and the two prime suspects had been on the run for six weeks.
THE INVESTIGATION – LOGISTICS
There is no complexity to a contraband container investigation, certainly not in the initial stages, and this was no different. There is always a paper (or digital) trail to follow, bills of lading, customs forms, port entry documentation, and various other shipping and clearance documents. Some ports, like Mombasa, have CCTV at the entry gate that captures both registration plate of the entering vehicle and a visual of the persons clearing the consignment. Regardless of the fact that many of the involved business entities may be false, or shell companies, there is a starting point. For this investigation, that starting point was Almasi Chai Kenya Limited and Siginon Global Logistics.
Almasi Chai was the documented exporter of this shipment. It was a small Mombasa business registered in 2010 for the purpose of buying and selling tea within Kenya and internationally. While there were three listed company directors, only Hilda Ochola Kome was active in 2014 and 2015. Her manager was Franklin Muthoka Ndova, who, based on his trial testimony, began his employment with Almasi Chai just prior to the organization of these tea shipments.
Siginon Global Logistics was the clearing and forwarding agent. Typically, clearing agents are at the top of the investigative target list for one simple reason. Under Section 147 of the East African Community Customs Management Act (EACCMA), clearing agents “acting on behalf of the owner of any goods shall, for the purposes of this Act, be deemed to be the owner.” While that section may work well for the EACCMA, it does not hold much water with criminal courts definition of ‘possession’. Between 2010 and 2017, the ODPP had charged clearing agents in seven different major ivory prosecutions and achieved a conviction in only one. (there is still one case before the courts)
The paper trail that began with Almasi Chai and Siginon Global, continued next to Potential Quality Supplies Limited (PQS). PQS was set up as a logistics firm and had been registered in September 2013. Its principal director was Nicholas Mweri Jefwa who was known to have worked around the Mombasa Port since the 1990’s. He was a previous employee of Siginon Global Logistics and so was known when he first approached them in May 2014 to ship tea.29
The other PQS directors were his brother, Samuel Bakari Jefwa, and Elizabeth Nayeni Kahindi, believed to be related to one of Nicholas Jefwa’s three wives. PQS was the catalyst for the ivory consignment. They illegally contracted Almasi Chai to acquire for them 220 bags of tea for a consignee, Keshav Traders, in Dubai3. It was later ascertained that the business relationship between PQS and Almasi Chai had begun seven months earlier, in September 2014, and there had been three ‘tea’ container shipments prior to this one. PQS made cash payments without receipt through Almasi Chai for the tonnes of tea leaves procured.
Investigators became aware that on Saturday, March 21st, 2015, in the early afternoon, the two Jefwa brothers and an unidentified third person, accompanied a 1971 Fiat lorry/truck, registration KNY 944, with empty container, FCIU5235796, to a Mombasa warehouse of Siginon Global Logistics. The container had been organized by PQS through Rais Shipping Services and had been picked up by a local transport firm, also organized through PQS. Siginon had taken previous delivery of the tea which they had blended as per instructions from Almasi Chai. The Jefwa’s were to pick up the 220 bags from Siginon and load it into the container with the process being verified by KRA.
The actual loading of the tea into the container was conducted by Siginon employees in the presence of the Jefwa’s and a Kenya Revenue Authority verification officer, Lucy Kahoto. The loading was captured on camera and on completion, the container was sealed shut with two seals, #BCE 089137, provided by Siginon, and seal #728614 from the Jefwa’s (through Rais Shipping). At 13:25 hrs, the container and Fiat lorry KNY 944 departed Siginon Global Logistics driven by Kenneth Mwangi Njuguna, ostensibly for Mombasa port, a 30-minute drive away. It arrived two days later.
On Monday March 23rd at 16:47 hrs, the truck and container arrived at Mombasa port, again being driven by Njuguna and escorted by Samuel Jefwa. It was reported that the container now had only one seal, #728614, the seal provided by the Jefwa’s.
The container was permitted port entry but was not scanned due to a reported exemption through an earlier agreement made between the East African Tea Traders Association and Mombasa port. The exemption was in place allegedly due to the high volume of Kenyan tea leaving the port and as mitigation against spoilage30.
This consignment was subject to three changes in consignees. Initial documentation indicated that it was going to Dubai for Keshav Traders but that was changed almost immediately on the container entering the port. Nicholas Jefwa emailed Rais Shipping Services requesting that the consignee be altered to Soupha Song Import Export Co Ltd located in Champassak, Laos.31 The container was loaded onto the vessel, Cape Moss, on April 6th and began its journey.
On or about April 19th, the container FCIU5235796, and now in Singapore was off loaded from the vessel, Cape Moss, to be loaded onto the vessel, RHL Felicitas, now bound for Thailand. This coincided with another email exchange between Nicholas Jefwa and Rais Shipping Services, with the consignee now amended to the Van An Co. Ltd of Da Nang City, Vietnam3. It is more than possible that the Jefwa’s (and Sheikh’s) were aware that this ivory shipment was on the verge of seizure and made the last-minute change in an attempt to thwart authorities.
Nevertheless, the container continued to Port Laem Chabang with Thai customs opening the container on April 25th, the morning after its arrival.
A week or so prior to this, (exact dates differ depending on source, April 19th and 21st are suggested), the same Siginon tea loading scenario of March 21st, was reprised but with two containers this time. PQS and the Jefwa’s had their same transport firm pick up two empty containers, loaded them with tea at Siginon, and on completion, taken again ‘indirectly’ to Mombasa Port with a similar two-day (some sources say three) lag time. These were the containers, the sister seizure, that was snared in Singapore on May 16th. By that time, the Jefwa brothers had long fled Mombasa.
THE INVESTIGATION – ARRESTS
Samuel Jefwa was one of the first to appear on the investigational radar. Inquiries revealed that he escorted the suspect container to Mombasa Port. The gating in process was captured on CCTV footage showing Samuel passing documentation to a KRA officer at the gate (this evidence was not submitted at trial). It was initially believed that Samuel Jefwa and Nicholas Jefwa were the same person.
With the investigation gaining momentum, it became clear that both Nicholas and Samuel had fled Mombasa. There were indications that they knew their days of freedom were finite as early as April 21st. This was the day the first container arrived in Singapore for Thailand transhipment. Warrants were subsequently issued for their arrest.
The next to fall in the net were Lucy Muthoni Kahoto, a KRA verification officer, and Musa Jacob Lithare, the de-facto owner of the two lorries that had driven the ivory containers into the port. Investigators were aware that Lithare had been contracted by Nicholas Jefwa to pick up the empty containers from the Hakikka Transporters depot, ferry them to Siginon, and then onward to port.
On or about May 20th, the ODPP applied to the court to have both Lucy Kahoto and Musa Jacob Lithare detained in custody for 30 days to enable the police to complete their investigation.
There is a provision in Kenyan law for suspects to be detained in custody for periods of time prior to charges being laid in circumstances where the investigation is not complete. This detention must be judicially approved. Senior Principal Prosecution Counsel Brian Ayodo, on behalf of the DPP,32 told the court: “the respondents are prime suspects having abetted in the commission of the offence.”
More arrests followed. Patience Mali Kahindi was arrested on or about May 25th. She was one of Nicholas Jefwa’s wives whom police reportedly believed to be the third director of PQS. On May 27th, while arguing her bail release, prosecutor Alexander Muteti stated:
“We request that the 3rd accused (Kahindi) remains in custody. We are alive to the fact that she is entitled to bail. But in offences of this nature I urge the court to take into account the public interest. I rely on Republic versus Feisal Ali Mohamed (supplied). There is a nexus between that case and this one.”34
This was the last time the court would hear of this nexus.
Patience Kahindi remained in custody until July 6th, 2015, when the charges against her were withdrawn. The investigating officer told the court, through the prosecutor, that they had believed Kahindi to be a director of PQS but she was not.
Employees of Siginon Global were also amongst those captured in the early arrests. Despite Siginon’s protestations and video proof that the ivory was not loaded at their premises, three of their employees were arrested and remained imprisoned until June 29th.
Irene Cheruiyot was the warehouse manager and not in attendance at Siginon on the day the tea was loaded. She had been Nicholas Jefwa’s email point of contact at Siginon. Victor Odhiambo Shikuku was a documentation clerk at Siginon and had attended Mombasa Port Gate 9 on March 23rd when the container accessed the port. His direct supervisor was Musa Kipkoech Kiptoo, who attended the loading process on March 21st and was believed to have provided the Siginon seal, #BCE 089137, to KRA verification officer Lucy Kahoto for affixing to the container on closing.
These three Siginon employees were joined in a May 26th court appearance by drivers David Ali, Kenneth Mwangi Njuguna, and KRA employee Jonathan Mungoti. Mungoti was the KRA officer who permitted port entry to the lorry KNY 944 and its container. One of his duties was to verify that the correct seals were in place on the container. David Ali and Kenneth Mwangi Njuguna were the two drivers under the employ of Musa Jacob Lithare. Ali was the driver of 1980 Fiat lorry reg. KSM 783 that delivered one of the two Singapore bound containers. Njunga, besides delivering the Thailand container, also delivered the second Singapore container in his de-facto vehicle, KNY 944. Investigators were already aware that both drivers had been involved in previous ivory container deliveries to the port in 2012 and 2013.
THE INVESTIGATION – CONSOLIDATION POINT & MORE ARRESTS
The investigational breakthrough came by way of lorry driver, Kenneth Njunga Mwangi. His interview with police yielded the location of the ivory consolidation point (also known as a collection point). It was a practice of ivory traffickers to set up locations where they could, over time, collect multiple, small numbers of elephant tusks that they would stockpile before dispatching in larger shipments. It was at these consolidation points that traffickers would cut the tusks if required and then package in large bags or boxes depending on means of shipment.
The ‘Sheikh’s et al’ were utilizing a two storey, 4-bedroom house on a one-acre, walled compound, in the upscale Mombasa neighbourhood of Nyali for such a consolidation point. Often, traffickers would locate these consolidation points in areas where they would not be expected. This particular compound was located within kilometres of Indian Ocean, beach front properties.
Driver Kenneth Njunga told investigators that this is where he had been instructed to leave his lorry, KNY 944, and container on the afternoon of March 21st. He also retrieved it from this Nyali consolidation point two days later.
A police search operation was subsequently organized and in the early hours of May 25th, the multi-agency team of approximately 50 officers descended upon the Nyali home. In the ensuing search, more evidence was found; ivory shards and chippings, tea leaves, weigh scales, an electric hand cutting machine, mobile phone scratch cards, and even baby’s diapers34.
Also found, and a significant key, was a receipt for goods purchased from a nearby ‘Nakumatt’ supermarket. A loyalty membership number on this Nakumatt receipt yielded that it was associated to the account of Sheikh Abdulrahman Mahmoud (Sheikh A#2) and that the diapers found in the house appeared to be part of the purchase noted on the receipt. The receipt led to a wife of Sheikh A#2, who advised the investigators that her husband had travelled to a wedding in Tanzania.
This house search also yielded the name of the property agent who was collecting the rent. The agent provided the name of the leasee, a Tanzanian national by the name of Said Juma Said. Said had begun his two-year lease in August 2013 (just weeks before the registration of Potential Quality Supplies) and had provided a Tanzanian passport as identification.
It was not long before investigators formed the belief that Said Juma Said was one in the same as Abdulrahman Mahmoud Sheikh (Abdulrahman A#1), who had also travelled to Tanzania for a wedding. On June 3rd, 2015,
DCI detectives met with Mahmoud A#3 at the Baobab Beach Resort, Diani Beach. During the course of a shared meal, Mahmoud A#3 arranged for his two sons to meet up with him and the DCI investigators to discuss the ivory shipment under investigation. Abdulrahman A#1 and Sheikh A#2 arrived a few hours later from the Tanzanian wedding. All were arrested and taken into custody.
The following day, an identity parade (line up) was held at the Central Police station, Mombasa. At this time, the property agent picked out Said Juma Said as being Abdulrahman Mahmoud Sheikh (Abdulrahman A#1), the person to whom she had leased the Nyali ‘home’. He had been selected from seven other available ‘suspects’. This identification process was later called into question in court.
Two months later, on July 30th, 2015, a consolidated charge sheet was presented before Mombasa Chief Magistrate Susan. M. Shitubi with the names of nine accused:
- Abdulrahman Mahmoud Sheikh – organized/financed shipment
- Sheikh Mahmoud Abdulrahman – “ “ “
- Mahmoud Abdulrahman Sheikh – “ “ “
- Lucy Muthoni Kahoto – Kenya Revenue Authority Verification officer
- Musa Jacob Lithare – de-facto owner of vehicle that transported ivory
- Samuel Mbote Mundia – taxi driver who assisted Jefwa’s escape
- Salim Mohamed Juma Khamisi – a driver of primary accused
- Abbasi Issa Rashid – a driver of primary accused
- Kenneth Mwangi Njuguna – driver who transported ivory to port
The arrest warrants for Nicholas and Samuel Jefwa were still in place. In 2016, those arrest warrants were extended globally by way of the Interpol “Red Notice” list, a world-wide alert for police, advising of the Jefwa’s wanted status.
The charges before this Mombasa court only related to the 3127 kg seizure made in Thailand. Charges for the two containers seized in Singapore were never laid.
THE PROSECUTION – THE DECISION TO CHARGE
In a 2015 interview with Wall Street Journal’s Heidi Vogt, the head of the investigation, DCI Superintendent Kamlus, stated that he was unsure if he would have enough evidence to charge in the Singapore case.6 From the outside looking in, the similar fact evidence between the two seizures was compelling. But should charges have even been laid relating to ‘Sheikh’s et al’ and the Thailand seizure?
The decision to charge is a responsibility that falls upon the office of the prosecutor. Typically, they weigh the evidence available and base their decision on the likelihood of conviction. In this case, and bearing in mind the outcome, one may question whether the decision to charge in ‘Sheikh’s et al’, was made prematurely, was based on actual available evidence, was made at a level higher than the DPP, and/or involved factors beyond the scope of justice. And were the same charging criteria utilized for both the Thailand seizure and the sister Singapore seizure? Up to this point in time, Kenya’s charging policy on major ivory seizures would have been considered haphazard at best.
On July 3rd, 2013, authorities in Mombasa conducted a verification of container PCIU1522740 that was bound for Malaysia. It was found to contain 1478 kg of ivory consisting of 778 tusks and tusk pieces amongst a cargo of fish maws. This container was known to have originated from Kampala, Uganda,35,36 and was driven to Mombasa via the Malaba border crossing. It is believed that authorities had been tracking it from the moment it had crossed the Ugandan border.
This seizure (also known as the “Little Feisal” seizure), featured in the Kate Brooks film documentary, “The Last Animals”37, and was later discovered, through DNA analysis, to be linked to two major Ugandan ivory seizures as well as a 2012 poaching incident in the Democratic Republic of Congo where 22 elephants were shot by Uganda Defence Force helicopters38,39.
An Interpol ‘Operational Intelligence Report’40 dated May 15th, 2015, and written as a support to the existing Kenyan/Ugandan investigation, clearly identified a number of strong suspects including an individual who gained unauthorized access to the KRA SIMBA tradex system as well as a shipping agent who attempted to recover the ivory after it had been seized by authorities in Mombasa. Feisal Mohamed Ali (FMA) was a suspect in that shipment. There was no prosecution.
Five days after this seizure, more ivory was seized in Mombasa port. This time it was 3287 kg of ivory in a consignment of ground nuts, also destined for Malaysia. Logistical linkages were found with the July 3rd seizure. Six months later, one clearing agent, Nicholas Maweu John, was charged (MCCR/3081/2013 R. vs. Nicholas Maweu John).
In October 2013, Mombasa port authorities made two more seizures within days of each other totalling 4854 kg of ivory. The shipments were transiting Mombasa from Kampala with a destination of Turkey. There is no evidence that charges were ever instituted in those matters.
Charging inconsistency was also noted with ivory shipments seized outside of Kenya but whose origin was from within.
In April 2010, 2194 kg of ivory, in a consignment of seaweed, was seized in Haiphong, Vietnam, that had originated in Mombasa. DCI investigators did charge the Kenyan facilitator but later withdrew the charges when they were unable to secure the required evidence from the Vietnamese41.
Between 2011 and 2015, there were eight major ivory seizures effected in other countries outside of Kenya that had originated from Mombasa and were not prosecuted by Kenyan courts. One of those seizures was made in Thailand. The seizure most recent to ‘Sheikh’s et al’ was made in Cambodia in May 2014 when 3008 kg of ivory amongst bags of soybeans were seized in two containers that originated in Mombasa. No prosecution.
After failing to secure the required evidence (namely the ivory) from Vietnam in the 2194 kg seizure in 2010, Kenyan authorities made another attempt in 2013. On January 23rd, 2013, 1848.5 kg of ivory was seized in Singapore that had originated from Mombasa. It was the third of three sister consignments, the other seizures made in Hong Kong and Mombasa respectively within weeks of each other (these three seizures all linked to the ‘Sheikh’s et al’).
In this matter, Kenya was successful in repatriating the ivory. However, charges against the respective accused in that matter were not laid until after the ivory had returned to Mombasa, eight months after the initial seizure. Also, prior to that ivory repatriation, a small inter-agency investigative team had travelled to Singapore from Kenya to obtain evidence relating to the seizure42. (That investigation/prosecution, MCCR/754/2013 R. vs. Fredrick Mungule, James Kassiwa and Nelson Ayoo {1833 kg} was blatantly corrupted, and all three accused were acquitted in 2022 after an 8 ½ year trial.)43
THE PROSECUTION – IVORY AS AN EXHIBIT
Even in 2015, it was perplexing on the logic behind the legal requirement of a criminal court to have tonnes of ivory returned to its jurisdiction as part of the trial process, particularly when the ivory was thousands of kilometres away. That was one of the hurdles that the trial of ‘Sheikh’s et al’ had to jump. The 3.1t of ivory that was sitting in Bangkok was seemingly required in Mombasa for this trial to meet a successful outcome.
The word ‘seemingly’ is used as there has been an inconsistency within the Kenyan criminal justice system on that very requirement. This specifically relates to major ivory seizures classified at over 500 kg in weight.
Didi Wamukoya, director of the African Wildlife Foundation’s (AWF) Counter Wildlife Trafficking program, commented on this subject in a 2021 interview with Kenyan journalist Peter Muiruri. Wamukoya had tenure, having previously been a prosecutor with the Kenya Wildlife Service.
She stated, and referring to the Sheikh’s case, “Such cases are complex…first, the process of repatriating evidence is in itself a long one.”44 And regarding the necessity of the ivory being returned for court, she stated: “That is the law”44. From the same article, Edwin Wanyonyi, the Director of Strategy and Change at KWS, said “there is little the department can do regarding the requirement to produce the entire evidence in court.” (In researching that report, journalist Peter Muiruri reached out to the ODPP for comment, and they did not respond “to our emails or numerous phone calls”.)
But while it may be the written law, was it the actual practice?
To date, only four of the nine major ivory trafficking prosecutions in Mombasa courts have had the entire seized ivory shipment available for the court to view. In MCCR/255/2013*, R. vs. Fredrick Sababu Mungule and James Kassiwa {1330 kg Hong Kong}, the ivory was never repatriated from Hong Kong. In MCCR/3081/2013*, R. vs. Nicholas Maweu John {3287 kg}, a Mombasa seizure, the ivory was never displayed or presented to the court as an exhibit21 (there is circumstantial evidence suggesting that most or all of this shipment never made it to the KWS stockpile in Nairobi). In MCCR/754/2013*, R. vs. Fredrick Mungule, James Kassiwa and Nelson Ayoo {1833 kg Singapore}, only one of the eight ivory crates seized in Singapore was opened and shown to the court. Particularly significant, in MCPCR//418/2017*, R. vs. Yusuf et al {1004 kg Singapore), the ivory seized in Singapore had been destroyed prior to charges being laid.
Putting this in another perspective, from an informal study done by the author, and using EIA seizure records between the year 2000 and up to March 2019, there had been upwards of 175 major ivory seizures around the world. Of those 175 seizures, legal avenues were explored to have the ivory returned to the apparent originating jurisdiction in just six of those seizures. All six seizures had Kenyan links.
ACKNOWLEDGEMENTS
Special gratitude to Ofir Drori of the ‘The Eagle Network’, who unknowingly (to both of us) provided the foundation and launch, not only of this report, but to my third career. Also special thanks to Paula Kahumbu and Wildlife Direct for taking me on as a volunteer in 2015 while the organization was ‘watching brief’ on this case. These thanks are extended to all their legal team who became colleagues over the next few years including, Liz Gitari, Jim Karani, Mary Muthoni Morrison, and Judy Wangari Muriithi. My thanks also to the Wildlife Direct investigator, who I cannot name, and with whom I bumped heads more than once. Should you ever read this, your work is not forgotten. There are too many others who in some way contributed to this case study, but I would be particularly remiss without recognizing the contributions of Dr. Sam Wasser, John Brown III, and to Dan Stiles and our Friday afternoon meetings.
ABOUT THE AUTHOR
Chris Morris is the lead of Canadian registered NGO, ‘Saving Endangered Species through Education and Justice (SEEJ-AFRICA). He comes from a law enforcement background that includes international experience as a war crimes investigator in Sierra Leone and a EUPOL adviser/mentor in Afghanistan. He has been based in Kenya for 10 years, following hundreds of ivory related prosecutions in the Kenyan courts, with a particular focus on how they are affected by corruption.
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