February 22nd, 2023 (Mention): The case is back in court 1 and that of SPM Omido. SPM Omido has recently transferred to Shanzu from Kwale law courts where he was the head of station. The prosecutor for court 1 is Anthony Muskoya, who has handled much (possibly all) of this prosecution. All accused were present except Njagi who was represented by counsel.
Hon. Omido decided that the case will continue with testimony from the rest of the defence witnesses at which time the entire proceedings will be typed. Adjourned to April 24th for defence hearing.
Court Updates
Presiding Magistrate: Hon. Joe Omido – Senior Principal Magistrate
State Counsel: Mr. Anthony Muskoya
Previous Presiding Magistrates:
- Chief Magistrate Florence Macharia
- Senior Principal Magistrate Diane Mochache
ACCUSED:
- Fatah Manzu Yusuf @ Mohamed Faki
- Gaylord Amaheno Jumba
- Justus Wesonga Marakumi
- Cyrus Ndolo Kimeu
- James Oriech Omondi
- James Kinyua Njagi
CHARGED: Between 21 January 2014 and 29 January 2014, at Mombasa, jointly with others, contravened Section 200 (c)(ii) East Africa Community Customs and Management Act to wit…………exported restricted goods to wit; 106 pieces of ivory valued at KES 180 million in container 1121948 to Singapore purporting to be 200 bags of robusta coffee on MV Bravo Ship.
APPEARANCES
February 22nd, 2023 (Mention): The case is back in court 1 and that of SPM Omido. SPM Omido has recently transferred to Shanzu from Kwale law courts where he was the head of station. The prosecutor for court 1 is Anthony Muskoya, who has handled much (possibly all) of this prosecution. All accused were present except Njagi who was represented by counsel.
Hon. Omido decided that the case will continue with testimony from the rest of the defence witnesses at which time the entire proceeds will be typed. Adjourned to April 24th for defence hearing.
February 15th, 2023 (Mention): This is the first time this case is before PM Shikanda. Advocates are present for Yusuf and Njagi. Only 3 of the accused are present, Yusuf, Kimeu, and Omondi. Warrants of arrest have been issued for Jumba and Wesonga, although both live in Western Kenya and have attended regularly since 2017.
It appears that the file is moving to court 2. This would indicate that a new prosecutor is going to take over.
PM Shikanda through out the question (as a trial balloon?) as to whether this trial could start de novo, or from the beginning. At this point, all prosecution witnesses have testified and two defence witnesses.
December 13th, 2022 (Hearing): Defence witnesses were set to testify. It is already known at this point that CM Macharia has been promoted to the High Court. This could have been an opportunity for her to end this case. Regrettably, the court was not sitting today for reasons unknown so this prosecution will be handed over to another Magistrate at a date to be determined. This case will now be extended, possibly up to a year.
September 15th, 2022 (Hearing): The second accused Jumba, was absent due to a sickness in the family and Mr. Magolo representing Yusuf was unavailable.
Testimony in Kiswahili was heard from Marakumi and Kimeu. Defence hearing to continue on December 13th.
May 24th, 2022 (Ruling): The court session for Court 1 today did not begin until 10:17 hr. All involved in this case waited until 2:45pm to hear that CM Macharia believed that enough evidence had been heard to place the accused on their defence. September 13th has been set for the first day of their defence.
Notes on court considerations for ruling:
1. There is no scientific report before the court that the ivory seized in Singapore is actually ivory. The ivory is known to have been previously destroyed by Singapore prior to these proceedings being instigated but there is no documentary evidence as such.
2. No report or affidavit relating to Singapore’s authorities involvement with this ivory seizure was forwarded to Kenya investigators and/or made its way to the prosecution file. Also, while photograph’s of the container and contents were provided, there was no detail as to date or time or by who?
3. All of the accused but one were involved in the movement of the container from Uganda to Mombasa Port. There is no direct evidence before the court that the five accused had specific knowledge that the container had ivory.
4. Evidence surrounding the sealing of the container and how many seals were used, is conflicting. It cannot be ruled out that ivory was added to the container when it reached Mombasa.
5. While Mpesa money transactions were presented in court as evidence of financial transactions between some of the accused, the payments have not been tied specifically to the container or its contents.
April 22nd, 2022 (Mention):All present and written submissions made. May 24th set for date to make a ruling on whether there is a case to answer (prima facie case).
April 8th, 2022 (Hearing): Today’s witness was the owner of Summit Cove Ltd, an ex-policeman of 9 years service. It was here that the container was first delivered on January 24th, 2014, for ‘holding’. An “inward equipment interchange” document was completed by a previous employee, as a receipt for the container storage. The document “outward equipment interchange”, indicating the container was taken from storage, is not available to the court. The witness stated that he gave it to the police. (it has not been produced in evidence).
April 7th, 2022 (Hearing): Superintendent James Githinji is today’s prosecution witness. He had been seconded to the Kenya Revenue Authority from the DCI from 2010 to 2016 and assisted with this investigation. He first became aware of this particular investigation on March 13th, 2014, when advised by KWS that a container they had been tracking, CMAU 1787960, that has been missing for 3 weeks since crossing from Uganda, was being off-loaded at Changamwe.
The container was eventually located, contents verified as only containing low value baobab and cotton seed. It was believed it had contained ivory but contents removed prior to seizure. Subsequent investigation revealed that the same clearing agent, Patana Enterprises, had released processed another container that was on the high seas. This was container, CMAU 1121948, related to the present charges. The witness advised that they (KRA) advised Singapore authorities who held the container when it arrived in Singapore on March 11th.
Supt. Githinji was on the stand for the remainder of the day until after 4pm. He identified the name of the Singapore consignee, the Uganda consignor, and two different Ugandan coffee companies who were shipping the coffee as per documents. There is evidence of mpesa money transactions between Yusuf and Jumba as well as Yusuf and the lorry driver but there is nothing that connects the payments specifically to the container with ivory. He stated that he did not go to Uganda to interview the shippers or consignor and he did not go to Singapore to conduct any investigation. He has never seen the ivory that is subject of the charge. The photos that were submitted came from Singapore authorities.
April 6th, 2022 (Hearing): Inspector Elvis Charro was the prosecution witness, presently a DCI officer working at the Kilifi office. He was first assigned to the investigation on March 17th, 2017. He assisted with investigations relating to mpesa transactions between the different accused. There is evidence that Njagi was the one who released the container while it was on customs hold on January 28th. The ship sailed from Mombasa on January 29th and arrived in Singapore on March 11, 2014.
April 5th, 2022 (Hearing): This was a scheduled hearing day. However, after a meeting in Magistrate’s chambers at 09:00, it was agreed that over the next 3 days the witness number would be reduced to three and the hearing would begin the following day. Adjourned to April 6th.
December 6th, 2021 (Hearing): The prosecution requested an adjournment as they had not yet obtained a certificate of destruction. All accused were present and at that time (10:20hr) unrepresented however, all disagreed with the adjournment request. The court did not accept the application. Testimony of the lorry driver (ivory Uganda and in Kiswahili) began testimony at 11:44hr. ( At this point, Magolo had arrived.) Driver stated that he picked up the container from the ICD in Kampala and stopped at Malaba, sleeping on the Kenya side. Justus Wesonga assisted with paper work. When he continued his journey, he was told at Mai Mahiu, the he needed to be in Mombasa by 8:00pm the following night. He was called by different phone numbers while on that journey.
This was followed by an employee of Summit Cove Ltd, who stated that the container question arrived at the SCL on January 24th. The entry document was prepared by Rose who is no longer an employee. There is no document to indicate that the container ever left their compound. One more witness testified, possibly from Transpares Ltd, the company that provided the transport. Testimony was in Kiswahili and comprehension was made more complicated due to construction happening in an adjacent courtroom.
June 17th, 2022 (Hearing):
February 2nd, 2022 (Hearing):
