- The High Court in Garsen quashed an ivory possession case from 2018.
- Issa Nabongo had been convicted at trial of being in possession of 2 tusks weighing 5 kg and given a Ksh 1 million fine and 5 years jail in default.
- Justice Reuben Nyakundi ruled that essential elements had not been proved, including that the seized items were ivory.
- The attached Appeal ruling paints a different perspective from the news article and includes issues over:
- Contradictory evidence from the Rangers as to the location of 19 snares and the two tusks.
- Who had control over the structure adjacent where the ivory was found.
- The accused’s past acquaintance of the arresting Rangers and the possibility of violence at the arrest scene.
Fisherman Set Free Over Alleged Ivory Possession (Kenya)
Philip Muyanga, The Nation via AllAfrica
April 14, 2021
A fisherman got a reprieve after his conviction and sentence to a Sh1million fine in default serve a five-year jail term for being in possession of ivory, was quashed.
Mr Issa Nabongo who had been jailed by a magistrate’s court in Mpeketoni, Lamu walked to freedom after his appeal against the conviction and sentence was allowed.
The High Court in Garsen ruled that the prosecution failed to prove its case beyond reasonable doubt.
“The essential elements of an offence of this nature and proof that the items were indeed wildlife trophy (elephant tusks) and that he (appellant) knew that the items recovered in an adjacent house were game trophies have not been proved,” ruled Justice Reuben Nyakundi.
Justice Nyakundi also noted that there is no report from the government chemist which shows that the other items were confirmed to be wildlife trophy.
“This, to my mind, left a lot to be desired from the prosecution, I am therefore convinced that the prosecution has not proved its case beyond reasonable doubt,” ruled Justice Nyakundi.
Mr Nabongo was charged with being in possession of two elephant tusks weighing five kilograms without a permit in contravention of Section 95 of the Wildlife Conservation and Management Act No.47 of 2013.
He allegedly committed the offence on January 24 2018 in Lake Amu Village in Mpeketoni within Lamu County.
At the close of the prosecution case, the trial court found that a prima facie case had been established and Mr Nabongo was placed on his defence.
The magistrate later sentenced the appellant to a fine of Sh1 million in default serve five years’ imprisonment.
In his appeal, Mr Nabongo argued that the trial magistrate erred in law and fact by relying on the evidence of single witnesses from the prosecution which was insufficient to sustain a conviction.
He also argued that the magistrate erred in law by discounting and not considering in detail his defensive evidence.
According to the appellant, the magistrate made a mistake by giving harsh and excessive sentence in the circumstances of the case and failing to consider that the prosecution witnesses failed to discharge the burden of proof to their case.