MCCR/E812/2022 Republic vs. Salim Chibonja Myala and Chivoro Ndamau Chivoro
CASE REVIEW
The following is a case review of a seizure made in the Voi area in December 2022 of 209.5 kg of ivory and the accompanying arrests of two men who were in the act of selling it to an undercover buyer from the Kenya Wildlife Service. This was believed to be the largest in terms of weight since a seizure made in August 2018 of 234 kg of ivory in the area of Malili. (That matter is still before the Machakos courts.)
Principal Magistrate C.K. Kithinji of Voi law courts found the first accused, Salim Chibonja Myala, guilty of dealing in wildlife trophies and assault with a knife and sentenced him to 7 years imprisonment with an additional 2 years for the assault. They were consecutive terms. She found the second accused, Chivoro Ndamau Chivoro, guilty of dealing in wildlife trophies and sentenced him to 7 years imprisonment. In her decision she acknowledged there were contradictions but relied on Jumaa Malunga Lugo v Republic (Criminal Appeal 27 of 2018) [2019] KECA 458 (KLR) (25 July 2019) (Judgment) the court held that;
“There will always be minor contradictions between the evidence of a multiplicity of witnesses, but as long as the contradictions do not affect the main substance of the case or prejudice the accused’s defence, the court will ignore such contradictions and focus on the substance issues.”
The trial took 24 months from date of arraignment and 54 sittings. The seven prosecution witnesses comprised of 4 KWS officers, 1 medical doctor, 1 National Police Service officer, and the expert from the National Museum of Kenya. It took 6 hearing dates to hear the seven witnesses. Of the 6 hearing dates, the 209 kg of ivory was presented to the court as an exhibit on 5 occasions.
The Voi Law Courts are one of the courts that fall under the umbrella of the African Wildlife Foundation courtroom monitoring programme.
This review is based on the written judgement of Principal Magistrate C.K. Kithinji and the observations of SEEJ-AFRICA who attended this matter in excess of 20 times. SEEJ-AFRICA was not present for the initial testimony of PW1 and PW2.
Circumstances of Arrest
At approximately 20:00hr on December 13th, KWS officers received intelligence from a reliable source of individuals with ivory to sell. The source did not provide any names. They assembled a team comprising of two vehicles and about 9 KWS officers. The team initially assembled at Maungu, approximately a 40 minute drive south of Voi.
On receiving a notification from the unidentified source, the KWS team departed from Maungu and proceeded to the Buguta area. There was an arrest team in a civilian Toyota Probox and a backup team in a KWS Landcruiser.
At a time between 23:00 hr and 02:30hr, the arrest team met up with the two accused. The KWS ‘buyer’ had a short verbal exchange with Chibonja (A#1) who went into some nearby shrubs and came out with two tusks as did his associates. As Chibonja went to place the ivory in the rear of the Probox, the KWS ‘buyer’ went to arrest him and in the process, Chibonja stabbed him in the area of the left clavicle.
The two accused were arrested and transported to KWS station at Voi. 14 tusks were recovered. The KWS ‘buyer’ was treated for the stab wound at 06:40 hr at the Moi County Referral Hospital and received an undisclosed number of stitches.
Conclusions
On the surface, while this appears to be a good seizure, it is abundantly clear, based on the testimony of the four KWS officers, that the arrest of accused Salim Chibonja Myala and the stabbing of the third prosecution witness by him, did not and could not have occurred as described in their testimony.
It therefore flows that if the prosecution witnesses have not been truthful over the arrest of one of the accused, is there anything else that did not occur as stated.
The second accused stated that he was awoken in his home at 02:00 hrs and arrested following a search of his home where nothing was found. Is he also being truthful?
The contradictions and missing information from the four key prosecution witnesses, from the time of arrest, to the approach to the arrest site, to the number of suspects, to the conflicted circumstances of the arrest and stabbing that none of the other witnesses observed.
The Honourable Magistrate, through a cited case, referred to the contradictions as minor. Can four different versions of how an arrest/stabbing occurred be considered a minor contradiction?
Judgements are based on rule of law and in this case, despite an apparent solid and impressive ivory seizure and an apparent stabbing of a KWS officer while in the course of his duty, the rule of law was not followed. Regardless as to whether this was a situation of noble cause corruption, based on the evidence before the court, Salim Chibonja Myala and Chivoro Ndamau Chivoro should not have been found guilty. At the time of the sentencing, they had spent two years in jail and will now be incarcerated for another five and seven years.
The verbatim testimony (as per written judgement) of the four KWS witnesses follows below with further analysis.

TESTIMONY
PW1, PW3, and PW4 are the main KWS witnesses as they were in the vehicle that affected the arrests. PW5, the designated Investigating Officer (IO), was in the backup vehicle.
Testimony of PW1 (in arrest vehicle)
The testimony of Pw1 KWS Ranger of Tsavo East is that on 13.12.2022 at 20:30 hrs he was within Maungu when he got a call from PW3 that there were people at Buguta area ready to sell elephant tusks. In the company of Ranger J.N. and D.D., he met PW3 with ranger PW4 within Maungu.
PW3 was in communication with a suspect namely A#1 (Chibonja) and was posing as a buyer. They stayed in touch until 23:00 hrs when A#1 said he was ready so they could proceed to Buguta. The suspect would direct them. They would find someone on the road with a motorcycle who would direct them. The five rangers left in a Probox vehicle that PW3 had with him. Near Buguta where there is a junction to the upper side, there was torch light as indicated. That was at about 02:00hrs. The person with a torch, a man, was standing beside a motorcycle. He gave a signal as indicated. They did not wait as they did not want the suspects to know they were all in the vehicle. They got to the second signal where they had been told A#1 would be.
PW3 alighted and inquired if the person was A#1. A#1 had gone to the Probox. PW3 asked for the luggage (elephant tusks). The suspects went to collect the luggage nearby. There was a house and trees on the side. The luggage was picked from the shrubs. PW3 got into the vehicle. Three people came back carrying two elephant tusks each in the hand.
PW3 immediately arrested A#1. They all alighted. The other two suspects dropped the tusks and began to escape so they gave a chase leaving PW3, A#1, and PW4. He managed to arrest A#2 (Chivoro). A#2 who had 2 tusks before escape. The other person escaped. A#1 too had 2 tusks. When he got back he heard PW3 scream, shouting he had been cut. He left A#2 with ranger D.D. besides the vehicle and went to give PW3 first aid. PW3 had been cut on the collar bone with a knife and was bleeding. They gave him first aid. A#1 is the one that injured PW3. D.D. inquired from A#2 where his home was. A#2 said A#1 had come from Mombasa. When they said to go search A#2 home about 5-6 kms away, he said he did not have anything at home. They gone to the home, conducted a search and did not find anything. They searched around the shrubs area where the suspects brought tusks from and there were others.
There were eight elephant tusks in the shrubs. Added to the six they brought to the car there were 14 in total. On further inquiry A#2 said A#1 was more involved. The suspects did not have a permit. They interrogated them and got full names but did not get name of 3rd accused who escaped. The tusks were weighed. It was 200 kgs. There is a weighing certificate. There was an inventory of recovered goods filled in. PW1 identified the weighing certificate, inventory and a knife belonging to A#1 which he had used it to cut PW3. PW4 had taken it from the accused. PW1 identified 14 elephant tusks in court. The had brought the suspects to the KWS offices and the investigating officer recorded statements and handed over to Voi Police Station.

Testimony of PW3 (KWS Undercover ‘buyer’ in arrest vehicle)
The testimony of PW3, with KWS based at Tsavo East National Park is that on 13.12.2022 he arranged work after a report from reliable sources at about 20:00 hrs that there were suspects with elephant tusks for sale. No names were given. He made arrangements with officers at Maungu and hired a civilian vehicle. There were other officers and had a backup KWS vehicle. They met at Maungu at around 22:00 hrs and made plans as they waited for a signal from the source.
The source waited and directed him to Buguta and with D.D., PW4, and PW1., they proceeded to place directed. They left Maungu at 01:00 hrs for Buguta. He had spoken to one of the suspects A#1 Chibonja who said all the goods were ready so he could collect the same and so sent a motorcycle to direct them and they met up at Buguta. He led them. They were with a Probox vehicle and were led to the area.
They arrived at the place on 14/12/2022 at about 02:30 hrs. He stopped and saw the three people directed who waved them down. The rider showed them the way and went away. The persons approached the vehicle. He asked who he spoke to on phone and A#1 went forward. He told him to bring the luggage so that he can pay. He told the officers to be on stand by to arrest. The persons got back each with two tusks and went to the back of the vehicle. He alighted and arrested A#1 with the tusk in the hands. PW4 alias Abaa managed to struggle with him to arrest A#1.
He did not know the suspect had a knife. PW3 was stabbed as A#1 resisted arrest and they were trying to wrestle him down. He identified the knife used. After he was stabbed and smelled blood he became unconscious. PW4 arrested A#1 and put him in the vehicle. Two other officers chased the others including A#2 and another one more. A#2 was arrested by the officers. A#2 had dropped the tusk he was carrying on seeing arrest of A#1.
There was another who escaped. They searched the area as the suspects had not gone far to fetch the tusks and they recovered 10 tusks from the bush. They had brought two (2) each. There were a total of 14 elephant tusks. They loaded the tusks into the KWS back up vehicle; land cruiser and came to Voi investigations office.
He went to Moi County Referral Hospital for treatment on 14th. He was issued with treatment notes and a P3 form. He identified the same.
The source had mentioned there could be tusks at the home so he took A#2 to his home about 1 km away, a mud iron sheet thatched house. They did not have a permit. They weighted the tusks and were 209.5kgs. There was a weighing certificate and an inventory. The tusks were verified.

Testimony of PW4 (in arrest vehicle)
The testimony of PW4, who is based at Tsavo East National Park is that on 13.12.2022 they got information from his supervisor that certain persons had elephant tusks in Buguta area looking for a purchaser. They were told the person was A#1. They made arrangements and engaged a backup team. He was with PW1, PW5, J.W. J.N., and D.D.
They went to Maungu for further planning and planned to go to Buguta. One of them, PW3 was communicating with the person with the tusks and posing as a buyer. They were told they would find someone on the way and he would direct them. They used an undercover vehicle (Probox) and arrived at Maungu at 20:30 hrs. We found two people and inquired of the luggage (tusks). The two said they had it so they asked them to load to vehicle to get paid.
Two people had come out and each brought two tusks to the vehicle and they arrested them. They inquired of the rest. There were 14 pieces. The suspects had no permit on inquiry. They were interrogated. One said his home was not far so they conducted a search at his home. As they went to collect other tusks they heard PW3 shout he had been attacked with a knife. PW4 looked and saw the suspect had a knife so he recovered the knife.
The suspects with the tusks are the accused before court. A#1 spoke to PW3 and said he had the luggage to be paid. PW3 had said to load the vehicle to be paid and the suspects went into the bush and brought the tusks each carrying two tusks. A#1 was arrested by PW3 as he brought the tusks. The other tried to escape and we gave a chase and arrested him. The officers had alighted and with PW1 and D.D. they opened the boot PW3 arrested A#1 as he loaded the tusks into the boot. A#2 tried to escape but was arrested by PW1 and D. D. They asked them to show us rest of tusks and they did. It was in the bush nearby. They were selling the elephant tusks. There are the 14 of them in court. He heard PW3 shout that he had been cut and found A#1 had a knife and PW3 had been cut on the collar bone. He took the knife from A#1.
They weighed the tusks and they were 209.5kgs. They prepared an inventory and the same was signed. The weighing certificate was prepared. He identified the knife before court.

Testimony of PW5 (in backup vehicle)
PW5 KWS Ranger of Tsavo East National Park, the investigating officer is that on 13.12.2022 they got information from the in charge J.W. that he had intelligence of Tsavo East National Park that some people at Buguta had elephant tusks and were looking for a buyer. They made arrangements with J.W., Driver J.N 1, PW4, and proceeded to Maungu area to meet PW3 and the back up team arriving at Maungu at about 20:30 hrs. They met the back-up team and intel officers; PW1, D.D., J. N 2., PW3, and F.M.
PW3 said he had spoken to the vendor and agreed to meet in Buguta at the road and was still in communication with the suspect. They arranged the operation. PW1, PW4, PW3, D.D., and J.N 2. were to use a unmarked vehicle to Buguta. J.W. F.M., Driver J.N. 1, and PW5 were the back up team.
The first team left. The back up team was in communication with PW4. They agreed they would meet the suspect at the road standing and he would lead them to where the elephant tusks were. The sign was that the driver would turn off hazard lights and the suspect would wave using a torch for identification. They got where there was a person who waved. They put on lights. The first team kept updating them and they followed closely. They proceeded to joining the first team after PW3 alighted and spoke to the suspect to confirm he was the one they had spoken. PW3 said the person was A#1. The person in communication with PW3 led them to where the tusks were. PW3 alighted and asked the people for the luggage. They said to wait to bring it. The team alighted and laid an ambush near the vehicle. Several people approached with luggage. PW3 told one to put the luggage in the vehicle. The officers came out and the people began to run. They gave a chase. PW3 arrested #1, the person he had been speaking to. They had arrived and assisted in the chase. PW1 came back with one suspect.
There was noise. They gave PW3 first aid as he was bleeding. He had been cut on the collar bone at the neck. They then went where the people had come from. There were scattered elephant tusks and those dropped in other places. The one (A#2) who was arrested by PW1 guided them and they interrogated him. He was a resident of the Buguta area. PW1, J.N. 2, and D.D. with the suspect went to conduct a search at suspects home. Nothing was recovered.
They returned to the safe house and the suspects were interrogated. A#1 introduced himself as Salim Chimbonja a resident of Egu in Taru. He said he got a call from his grandfather who said his uncle Baya would talk to him and explained something. He met the uncle who said the grandfather was at Maungu so they would meet and go to Buguta. He said they were going to purchase elephant tusks. They left the area on 12th with A#1, Baya and Kazungu. They went to Maungu, picked up the grandfather and went to Buguta. On 12th A#2 had 2 tusks in his house. A#2 took the tusks to A#1 who lives in Buguta. From the 12th he began to look for a buyer. A#2 said he took his two elephant tusks to Buguta. They were to collect money and give each their due. A#2 assisted them to carry the tusks and wait after sale and the deal. They arrested A#2.
They prepared the exhibit memo and inventory and it was signed. The tusks were weighed coming to 209.5kgs. They were 14 pieces. There was a knife in the suspects trouser and a phone. They signed the inventory and the weighing certificate. PW5 forwarded the tusks for investigations and verification if elephant tusks. The suspects were charged in court. They had no licence to deal with the tusks. There is a report in regard to the exhibit. PW5 tendered in evidence the exhibit memo, weighing certificate, inventory, knife, Aptel basic phone, black in colour, and 14 elephant tusks.
Other Testimony
Three of the seven witnesses were not directly involved in the arrest. Prosecution witness #2 (PW2) was a clinical officer at the hospital who treated the stab wound. PW6 was an National Police Service (NPS) sergeant, the designated investigating officer for the knife assault. She had no contact with the accused and took a statement from the KWS ‘buyer’ who is PW3. PW7 was the National Museum of Kenya (NMK) expert, Dr. Ogeto Mwebi who testified that the ivory was ivory.
Both accused gave testimony in their defense. A#1 stated that he was arrested at about 18:00hr while he was in Mackinnon. The officers identified themselves as ‘government’. He was placed in a white double cab vehicle. They drove in the direction of Taru with his captor’s calling someone telling them that they had already arrested him. At Mariakani, they turned around and drove to Voi where he spent the night in cells. He told the court that he never did such a thing and asked the court to investigate to find the truth.
The second accused told the court that he was in his house at 02:00hr when four men came to his house, 2 in uniform and 2 in plain clothes. The searched the house and found nothing and arrested him. They took him to Voi. He saw the first accused for the first time. He also said that he had never seen the elephant tusks before. His wife and neighbour took the witness stand only to say that he was arrested at the house but they did not know the date when it happened.

CONTRADICTIONS IN EVIDENCE
- TIME: The arrest time was given as 23:00hr, 02:00hr, 02:30hr, and between 23:00hr and 02:00hr.
- APPROACH: Two witnesses stated that a motorcycle was involved in guiding them to the ‘arrest’ site. One witness stated that the rider was signalling with a torch while standing beside the motorcycle at first RV point. One witness stated that the motorcycle led them to the final arrest site and then drove off. PW4 made no mention of a motorcycle. PW5 in the backup vehicle did not mention a motorcycle but did indicate a person waving a torch as a signal.
- SUSPECTS: Two witnesses state they were met by three men and after conversation with PW3, went into bushes and retrieved 2 tusks each. One witness, PW4, observed two men retrieving two tusks each. PW5 said there were several men.
- ARREST and STABBING: PW1 says that A#1 was arrested by PW3 with PW4 assisting. PW1 continued that he ran after A#2, caught him and brought him back to the Probox. That is when he heard PW3 scream that he had been stabbed. (This would appear to indicate that PW3 was not stabbed immediately on arresting A#1 and not in the close proximity to the Probox.
- PW3 states that he initiated the arrest of A#1 as soon as he returned from the bushes carrying 2 tusks. During the struggle, he was stabbed by A#1 and became unconscious. He was assisted in the struggle by PW4, who PW3 says actually arrested A#1 and put him in the vehicle.
- PW4 states that A#1 was arrested by PW3. PW4 testified that he heard PW3 shout that he had been cut and found A#1 with a knife, observed PW3 cut on the collar bone. PW4 took the knife from A#1.
- PW5 indicates indirectly that PW3 was stabbed some period of time after the initial contact with the two or three accused men.
- None of the witnesses observed the actual stabbing.
OTHER FACTORS
- There is a discrepancy on the distance to A#2’s house from the initial arrest site. PW1 says 5-6 km and PW3 says the house was about 1 km away.
- It would be expected for there to be some testimony from KWS as to the price negotiated with the accused for the ivory.
- There is a question as to how the accused was able to withdraw a sheathed knife of the described size from his trousers while being arrested by two KWS officers.
- There is a lack of detail relating to the search of the second accused’s house. Did he accompany the KWS officers or was he taken straight to Voi?
- The first accused, Chibonja, stated that on arrest at 18:00 hrs, he was placed in a white double cab vehicle. That does not match the description of either vehicle involved in the seizure or arrest at 23:00 hrs.
