Failed or ‘Failed’? Postmortem of an Ivory Prosecution – Part 2

THE PROSECUTION – TESTIMONY

The Makori Period – February 2017 to September 2021

In February 2017, Chief Magistrate Evans Makori took over the trial. He had recently transferred to Mombasa having spent just a few months previously at Milimani Court in Nairobi and the Meru Law Courts prior to that. He was to hear testimony from 25 of the 28 witnesses.

For the ODPP, prosecutors Alexander Muteti and Jami Yamina were still the leads.  Mr. Muteti would lead only one witness on the first day of actual testimony on July 17^th, 2017, before he would be transferred to Nairobi to head the Human Rights Division. Mr. Jami would continue for another year before he too would also be transferred to Western Kenya. He would introduce evidence through 20 more witnesses before his transfer.

For the defence, Jared Magolo and Gikandi Ngibuini were the leads for the Sheikh’s brothers and father.  Both had represented ivory trafficker Feisal Mohamed Ali. Mr. Magolo had a reputation as one of the top criminal lawyers in Mombasa and was particularly well versed in major ivory trafficking trials. He would take over from Mr. Ngibuini in 2019 to represent Mahmoud A#3, in addition to the sons he already represented. There were five other advocates representing the remaining six accused.

The list of scheduled witnesses was as much about who was included as who was not. Grouped by categories; six of the witnesses were testifying in relation to the purchase of tea, five witnesses were from Siginon Global, three of whom had spent over one month in jail as suspects. Musa Kipkoech Kiptoo, the Siginon supervisor on duty when the first container was loaded with tea, was scheduled to testify but was reported to have passed away.  From another perspective, 39% of the total witnesses to be called were presenting testimony in relation to the tea, the cover load for the ivory. The word ‘tea’ was not a fact in issue in the listed charges.

Two witnesses testified for the shipping company that did business with the Jefwa’s, four witnesses were called from the Kenya Port Authority and three from the Kenya Revenue Agency. The witness list was finalized with an employee of the involved container depot, an agent who participated in the leasing of the Nyali home  (ivory consolidation point), the head of Osteology at the National Museum of Kenya, and three DCI investigators. As will be shown, three other scheduled DCI investigators did not testify and there were some notable omissions for a prosecution intent on prosecution.

The first two prosecution witnesses (known within the court as PW1 and PW2) were Franklin Njoka and Hilda Koome, the manager and one of the directors of Almasi Chai Kenya Limited respectively. Franklin Njoka was initially a suspect, a fact indicated by way of the three statements taken from him by DCI, one being a statement under inquiry (cautioned statement).

Njoka and Koome could have been charged as part of the ivory trafficking conspiracy, but the prosecution believed the evidence they would provide to be of a greater value against the accused. Franklin Njoka was the first to testify, taking the witness stand on July 17^th, 2017. His evidence, aside from detailing Almasi Chai’s involvement, implicated only the Jefwa’s.

Njoka, who had apparently been in the tea business since 1980, joined Almasi Chai just prior to Nicholas Jefwa approaching Siginon Global for clearing and forwarding services. That proximity in time, relative to Jefwa’s approach to Siginon, raises the possibility that Njoka may have been a Jefwa plant and/or an associate.  It is not known how the Jefwa’s selected Almasi Chai to be their ‘proxy’ for the tea shipments.

Both Njoka and Koome stated that they first met Nicholas Jefwa in September 2014 after his initial phone contact. As per their testimony, there was a gentleman’s agreement in place with no written contract between N. Jefwa and Almasi Chai. Almasi Chai would ship tea on behalf of the Jefwa’s and Njoka would source the tea. Over the course of the next eight months, several tea shipments were made from Mombasa.

Relating to the ‘Sheikh’s et al’ shipment, Njoka stated that it was the fifth consignment for N. Jefwa. He had met with N. Jefwa on or about March 15^th, 2015, and consequently sourced tea from a number of different brokers to complete the consignment of 220 bags for shipment to Dubai.  As was now routine, Siginon collected the tea from the brokers and then blended. For the March shipment, the Jefwa’s paid approximately USD $12,000 for the tea through Njoka. There were no receipts in the transactions between Jefwa and Njoka. Njoka told the court that he had never heard of Jefwa’s business name, Potential Quality Supplies, until after the ivory had been discovered in Thailand.

What did not come out in testimony was that this loose business arrangement between Almasi Chai and the Jefwa’s was contrary to trade regulations. Specifically, Almasi Chai was contravening the Crops Act 2013 as well as Tea Licensing Registration and Trade Regulations prohibiting the exportation of tea for an unlicenced third party.  It was reported that the government revoked the licence of Almasi Chai to conduct further business.  In addition, as East African Tea Traders Association managing director Edward Mudibo explained to the press: “We have stripped them of our membership for contravening the code of conduct that governs EATTA.”⁵³

On the same day that Hilda Koome testified, so did a Rais Shipping Services employee responsible for shipping and marketing. Known to the court as PW3, she had been with the company for four years and knew Nicholas Jefwa as a regular customer. She recalled dealing with two containers of N. Jefwa’s, one was relating to the Thailand seizure and the second, to the sister Singapore seizure.

PW3 confirmed that for the Thailand seizure, Almasi Chai was the exporter, Keshav Traders of Dubai was the original consignee and N. Jefwa was the forwarder.  She stated that the first application by Jefwa to change consignee from Keshav Traders, Dubai, to Soupha Song Import Export of Laos, was on March 24^th, 2015, (the day after container entry into port) and she was aware that another change had been requested on April 21^st, 2015, for a new consignee in Da Nang, Vietnam. She testified that documentation indicated that the cargo had been loaded onto the vessel Cape Moss in Mombasa. She also stated that one container seal, #728614, had been provided to Nicholas Jefwa. 

Her manager, PW4, confirmed in his testimony on March 5^th, 2018, the change of consignee and location, from Laos to Da Nang, Vietnam, and that Nicholas Jefwa paid for that change to be undertaken. 

PW4 had been scheduled to testify four months earlier on October 23^rd, 2017, a hearing that was adjourned due to Sheikh A#2 having travelled to India with his mother due to her health concerns.

The four witnesses who followed were all tea brokers, their lack of significance denoted through the absence of defence counsel Magolo. Even Prosecutor Jami was absent for one of them. Through their evidence, it was identified that significant purchases of tea had been made by Almasi Chai in 2014 and 2015. The quantity of tea purchased by Almasi in 2014 would call into question whether in fact the relationship between Almasi and the Jefwa’s did not commence prior to September 2014. 

The tea broker group were followed by PW9, a cameraman from Siginon Global. He took photos of the container as it was being loaded with the bags of tea and its being sealed on completion (Figure 8).  He stated that Samuel Jefwa was present at the loading and was also taking photographs of that process. PW9 had seen Jefwa at Siginon more than four times previously.

Irene Cheruiyot, PW10, was the next to testify. She was the Siginon warehouse manager but not at the Mombasa warehouse on the day of the tea loading. She spent 34 days in jail as a suspect. On May 15^th, 2018, she testified that her first email correspondence from Nicholas Jefwa was on May 30^th, 2014.  He had visited the office shortly prior to that date.  His final correspondence to her was on February 17^th, 2015. That would appear to correspond with an Almasi tea shipment to Singapore made for the Jefwa’s on February 28^th, 2015. One would question as to why there was no correspondence between Jefwa and Cheruiyot for the March Thailand shipment, if that was indeed true.

Irene Cheruiyot was also responsible for Siginon’s tea blending and became the point of contact for N. Jefwa. She presented in her testimony, an overview of the process that was followed, from tea sourcing to loading, and identifying her staff that were involved. She had documents indicating that truck KNY 944 left Siginon at 13:35 hrs on March 21^st, being driven by Kenneth Mwangi Njuguna (A#9) and that it arrived at the Port on March 23^rd at 16:30hrs.

Not in her testimony was the fact that she was aware that N. Jefwa had been previously employed with Siginon Global.  It was also not revealed in open court that the Jefwa’s had previously exported tea through Siginon but under the name of Mombasa Tea Traders Limited. 

PW10’s testimony was followed by three more witnesses from Siginon. From PW11, it was learned that he was the one who contacted KRA verification officer, Lucy Kahoto A#4, to attend the tea loading process. She was based at Mitchell Coutts container freight station in Mombasa. PW12 was Victor Shikuku, the export clerk who had also spent a month in jail. He had attended at the port on March 23^rd when lorry KNY 944 was permitted entry. He stated that it was being driven by Kenneth Mwangi Njuguna (A#9) and accompanied by Samuel Jefwa. 

The Siginon export clerk’s testimony, which was undoubtably significant in relating how the lorry/container gained entry into the port considering the 48-hour loading/arrival delay, was rendered ambiguous through the Hon. Makori’s poor note taking and/or poor transcribing of testimony.  It was also not clear when exactly Kahoto A#4 lodged her required message into the online system relating to the March 21^st loading. It is clear that she did not enter it on the system on March 21^st as dictated by customs protocol. The input date was either March 22^nd or 23^rd.

PW13, a Siginon blending clerk, was the last to climb the witness stand on that day. He testified that he was at the Siginon warehouse on March 21^st and it was he who physically placed the two seals on the container after it had been loaded with tea.

The Container

The following eight witnesses, with the exception of one more Siginon clerk, were all from the Kenya Revenue Authority or the Kenya Port Authority. They provided testimony primarily relating to the container and its entry into the port. From these witnesses, it was learned that the container, FCIU5235796, did enter the port and was loaded onto a ship.  The name of the ship (Cape Moss) was not specified in testimony.

The court also heard evidence relating to the supply of container customs seals and the seal documented to be securing container FCIU5235796, when it entered Mombasa port. It was learned from a KPA security officer (PW19) that he recorded on March 21^st, seal #728614, was on the subject container in an unbroken state. There was no mention of the second seal, #BCE089137.

Thailand Witnesses

On or about November 12^th, 2018, (the date was not captured in typed proceedings) the ODPP, through Jami Yamina, told the court that it was planned to present five Thai witnesses to testify. Amongst the five were an ivory analyst and those involved in the container seizure.  The statements from these witnesses would be recorded within 90 days.

“The witnesses we intend to bring in are very important to this case and it is important for the court to allow their testimony,” Jami said.

Defence counsel objected, their position being that it was too close to the end of the prosecution to bring in foreign witnesses. CM Makori told the court he would decide on this matter after the scheduled witnesses had testified. It was believed at this time that there were 10 witnesses remaining.  Prosecutor Jami was transferred to a western Kenya law court sometime after this date and would not appear again on this matter for another 2 ½ years.

FIRST EVIDENCE – Primary Accused

On April 29^th, 2019, the court heard evidence for the first time that was relative to one of the primary accused. The previous 21 witnesses presented evidence that suggested possible involvement of only three of the accused and none relating to the three Sheikh’s.

PW22 was the owner of the leased Nyali property identified as an ivory consolidation point.  He stated that he had been approached by a man at his mosque and subsequently leased his Nyali compound to this man, Said Juma Said. The lease for a two-year period commencing August 2013 for a monthly payment of ksh 105,000. He did not recall the face of Said Juma Said. The agent, Nelly, prepared the documents. He stated that the rent was always paid on time, and he never went to the property during the tenancy.

PW23 was an employee of Hakikka Transporters, who through documentation, advised the court that the empty container, FCIU5235796, had been picked up from the Hakikka container depot on March 20^th. As per submitted documents, the driver was Kenneth Mwangi Njuguna A#9. The witness had not seen the driver.

On the same day, testimony was heard from the first police witness of the trial. Chief Inspector Barnaby Chumo, PW24, told the court that he conducted an ‘Identification Parade’ on June 4^th, 2015, the day after Abdulrahman A#1 was arrested.  An identification parade is an investigational process whereby a criminal suspect is stood in a line with a number of other physically similar persons for the purpose of establishing whether the witness can identify the perpetrator⁵⁴.  This is also referred to as a ‘line up’.

The purpose of this parade was to establish, through the property agent who had dealt with the leasing of the Nyali property, if Abdulrahman A#1 was the same person as Said Juma Said, the lessee of the property. CI Chumo told the court that he conducted the parade according to protocol and it consisted of eight persons. The members all closely resembled Abdulrahman A#1. CI Chumo stated that the witness, PW27 (property agent), did identify Abdulrahman A#1 as the person she knew as Said Juma Said, the individual who paid her the two month deposit and with whom she left the keys. CI Chumo stated that defence counsel Jared Magolo was in attendance.

The property agent, PW27, was also scheduled to testify that day but could not due to illness. Prosecutor Eugene Wangila, who had now taken over from Mr. Jami, advised the court that he could not confirm if the statements from Thai witnesses were available. He told the court that he has nine witnesses remaining.  Seven of those witnesses were to come from the DCI, KRA, and Immigration. It was the intent of the ODPP for all remaining witnesses to testify over a two- day period on the next scheduled hearing dates.

At this point in time, by Kenyan standards, the pace of the trial was progressing comparatively well.  CM Makori had heard testimony from 24 witnesses in under 21 months.

Unnecessary Delay

That tide was going to turn on June 17^th and 18^th, 2019, two days set for witness testimony.  On the first day, two witnesses were present but did not testify as their statements had not reached all defence counsel. Mr. Wangila advised the court that the witness list had been pared by three and now stood at six remaining.

The following day, June 18^th, with four witnesses present, the court was advised that prosecutor Eugene Wangila had been transferred and would not be continuing with this prosecution. It was later learned that Mr. Wangila had not been transferred, but had been let go from the ODPP for reasons unknown. Within months, he would be seen in the halls of Mombasa law courts but now acting as defence counsel.

The next date set for trial was August 26^th, 2019. It did not proceed and the ‘Sheikh’s et al’ made headlines again. A media report, “DPP accused of delaying Sh576m ivory case”,⁵⁵ was critical of delays that had plagued the four-year prosecution, placing the blame on the shoulders of the ODPP.

The newly assigned and more junior prosecutor, Edgar Mulamula, had told the court: “I have just arrived in Mombasa, I have been told the case is complicated hence I need time to go through the file before I start prosecuting the matter.”

Mr. Mulamula told the court that he needed a month to familiarize himself with the complex file. CM Makori granted the adjournment although it was reported that his efforts to conclude this case had been frustrated by the prosecution.

By the numbers, the media report was correct. As of August 26^th, 2019, there had been 24 scheduled hearings of which 10 had proceeded with witness testimony. Of the 14 hearings that had been adjourned, the ODPP was responsible for 10.

It would be 18 months and seven court sittings later before the next prosecution witness would testify. COVID was part of that equation.

The House Search

On February 16^th, 2021, the prosecution was scheduled with two witnesses. The hearing was postponed for a day, however, with a reported illness of one of defence counsel. This nullified the expected testimony of Dr. Ogeto Mwebi from the National Museum of Kenya who was to testify regarding the ivory shards and particles found in the Nyali consolidation point.  The court was told that Dr. Mwebi was not available for the second day of this hearing, being required to testify elsewhere in another court. In theory, there should not have been another ivory prosecution in Kenya with a higher priority than ‘Sheikh’s et al’.

The following day, Inspector (IP) Stephen Kibagendi, PW25, presented evidence on the house search conducted on the Nyali compound being used as an ivory consolidation point. Not realized at the time, this would be the only witness that Mr. Mulamula would be guiding through testimony.

IP Kibagendi told the court that he had been notified at 05:00 hrs on May 25^th, 2015, to attend the house search in Nyali. He arrived, with his driver, to find many officers already present, officers from the DCI, the Flying Squad, other specialty units, and the KRA. Found in the house were various items including bags of tea leaves, pampers (diapers) and credit cards. Everything was loaded into a lorry and taken to the port police station. He referred to an electric cutting saw and weigh scales that had been seized but could not presently be located. He attributed this to the passing of the officer in charge of the investigation at the time, Senior Superintendent Odhiambo Kamlus.

IP Kibagendi was the primary seizing officer of five small envelopes, four of which contained white particles/chippings and one envelope with animal hair. These exhibits were presented to the court. The envelope of animal hair had the date May 23 written on it and another envelope had written: “100 gms, different spots in room, entrance left front door.” It was not known which specific officers had seized any of the envelopes.  His testimony was also not clear as to whether he took possession of the envelopes at the Nyali property or at the police station after the search.

IP Kibagendi continued that he took the envelopes and contents with CI Githinji to the National Museum of Kenya in Nairobi and handed them over to Doctor Mwebi. He retrieved them five or six days later.

In cross examination, he stated that he was not part of the investigative team and he was unsure why ‘May 23’ was written on one of the five envelopes. He told the court that there was no exhibit inventory, and he could not specify which officers had seized which exhibits.  There were over 20 officers involved in the search.  Mr. Magolo questioned whether in fact, the ivory chippings had been taken to the house by police instead of being found therein.

Upon conclusion of testimony, CM Makori ordered the prosecution to close its case. In his ruling, he stated that “the spectrum of the case is being lost” and the “only remedy is to bring this to a closure”⁵⁶.  He ordered that the prosecution should bring all remaining witnesses to testify for hearing on April 7^th, and 8^th, 2021, and that their case should be concluded at that time.  There were five more prosecutions witnesses scheduled. It would be another two years before the court heard from any of them.