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Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood
Crime in North Central Kenya – A Case Study
January 2014 – May 2018
S P A C E F O R
www.spaceforgiants.org
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study2
LEGAL NOTICE TEXTSpace for Giants has created this document for informational purposes only and not for legal advice. Accordingly, no warranty
of any kind whatsoever, whether express or implied, is offered by Space for Giants or its Partners in respect of the information
provided herein. Space for Giants and its Partners will not be responsible for any adverse results resulting from use of such
information. Users of this document are advised to consult with lawyers within their jurisdiction before finalising any protocol
related to the material contained herein.
ABOUT USSPACE FOR GIANTS
Space for Giants is an international conservation organisation headquartered in Kenya that is dedicated to protecting Africa’s
elephants by securing forever the landscapes and habitats that they depend on. Among the ways we do this is to strengthen
national judiciaries, wildlife law enforcement and prosecutorial agencies to ensure more appropriate and successful prosecutions of
wildlife crimes, to deter those who would poach animals, or encroach on their protected spaces. We work closely with communities
and governments to secure popular support for our work. Space for Giants produced and co-funded this document. See www.
spaceforgiants.org for more information.
FUNDERThis work was co-funded by the UK Department for Environment, Food and Rural Affairs (DEFRA) under their Illegal Wildlife
Trade (IWT) Challenge Fund. The fund supports projects that promote sustainable livelihoods, strengthen law enforcement,
reduce demand for IWT products, and create effective legal frameworks. Space for Giants was awarded a grant by DEFRA for the
period 2016-2018.
ACKNOWLEDGMENTSWe would like to express our gratitude to the Office of the Chief Registrar, the Office of the Director of Public Prosecutions, Kenya
Wildlife Service and the clerks and staff at all of the magistrates courts surveyed in this study who made this project possible. Also
Dr. Lauren Evans for her editorial assistance.
Lead Author: Shamini Jayanathan, Director of Wildlife Law and Justice, Space for Giants.
Co-Authors: Katto Wambua, Maurice Schutgens and Faith Maina.
For more information, please contact Shamini Jayanathan, Director of Wildlife Law and Justice,
Space for Giants: [email protected]
Cover photo copyright Maurice Schutgens
January 2014 – May 2018 3
CONTENTSPreface ..................................................................................................................................................................................................5
Executive Summary ............................................................................................................................................................................. 6
Key Findings ......................................................................................................................................................7
Introduction ......................................................................................................................................................................................... 8
Study Area............................................................................................................................................................................................ 9
Methodology .......................................................................................................................................................................................10
Results ................................................................................................................................................................................................ 11
Overview of Cases ........................................................................................................................................... 11
Spatial Distribution of Cases ...........................................................................................................................12
Overview of the Accused .................................................................................................................................13
Adjournments and Duration of Cases .............................................................................................................13
Charges and Pleas ............................................................................................................................................16
Bail and Bond ..................................................................................................................................................17
Sentencing .......................................................................................................................................................19
Acquittals .........................................................................................................................................................21
Key Concerns ..................................................................................................................................................................................... 23
Legislation ...................................................................................................................................................... 23
Selection of Charges ....................................................................................................................................... 23
Investigations ................................................................................................................................................. 23
Trial and Delay in the Courts ......................................................................................................................... 24
Sentencing ...................................................................................................................................................... 24
Corruption ...................................................................................................................................................... 24
Progress made in North Central Kenya ............................................................................................................................................ 26
Implementation of Previous Recommendations ...............................................................................................................................27
New Recommendations 2018 ........................................................................................................................................................... 29
On Legislation................................................................................................................................................. 29
On Investigations ...........................................................................................................................................30
On Prosecution ................................................................................................................................................31
On Trial and Sentencing ................................................................................................................................. 32
Conclusion ......................................................................................................................................................................................... 34
Appendix .............................................................................................................................................................................................35
Database of cases in North Central Kenya 2014-2018 ...................................................................................35
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study4
ABBREVIATIONSAGO Attorney General Office
ACM Active Case Management
CITES Convention on International Trade in Endangered Species
CMO Court Monitoring Officer
CPC Criminal Procedure Code
CR Criminal Registry
DEFRA Department for Environment, Food and Rural Affairs
EACCMA East Africa Community Customs and Management Act 2004
FCMA Forest Conservation and Management Act, 2016
JTI Judicial Training Institute
KFS Kenya Forest Service
KWS Kenya Wildlife Service
GoK Government of Kenya
IWT Illegal Wildlife Trade
MLA Mutual Legal Assistance
MoU Memorandum of Understanding
NESC National Economic and Security Council
NGO Non-Governmental Organization
NPS National Police Service
ODPP Office of the Director of Public Prosecutions
RRG Rapid Reference Guide
SoC Scene of Crime
SOP Standard Operating Procedures
UNODC United Nations Office on Drugs and Crime
WCMA Wildlife Conservation and Management Act, 2013
January 2014 – May 2018 5
PREFACEThe global illegal wildlife trade is operated by transnational
organised crime syndicates and valued at an estimated USD
7 - 10 billion annually1. High profile ivory seizures2 and court
cases3 indicate that it is prevalent in Kenya at varying scales.
North Central Kenya is one of the most critical wildlife refuges
in East Africa. It is home to Kenya’s second largest African
elephant (Loxodonta africana) population and the majority
of Kenya’s black and white rhinos (Dicornis bicorni michaeli
and Ceratotherium simum simum) that are considered high
value targets for organised wildlife crime syndicates. The
region holds the highest amount of wildlife outside protected
areas in Kenya4. It therefore makes an excellent case study to
understand the challenges of prosecutions of wildlife crime
in Kenya. Incidents of illegal harvesting of East African
Sandalwood (Osyris lanceolat), within the region have
increased since 20165; therefore sandalwood cases were also
included and analysed in this report.
By focusing in depth on one particular region in Kenya and
specifically assessing the state of prosecutions for these three
1 State Department, “Secretary Clinton Hosts Wildlife Trafficking and Conservation,” media note, Nov. 8, 2012. According to the National Intelligence Council, environmental crime, defined to include illegal wildlife trade, logging, trade in CFCs, and toxic waste dumping, generates an estimated $20 billion to $40 billion per year for transnational organized crime. See Office of the Director of National Intelligence, Special Report: The Threat to U.S. National Security Posed by Transnational Organized Crime, 2011.
2 https://www.reuters.com/article/us-kenya-ivory-idUSKBN14B0IM Kenya seizes nearly two tonnes of ivory from shipment bound for Cambodia
3 https://www.theguardian.com/environment/africa-wild/2016/jul/23/kenya-jails-ivory-kinpin-for-20-years
4 A Wildlife Conservation Strategy for Laikipia County (2012-2030): First Edition, 2012. Laikipia Wildlife Forum, Nanyuki, Kenya.
5 Author’s personal observations based on reports from conservancies in the region.
high profile species involved in the multi-billion dollar illegal
wildlife and forestry trade, lessons learned may be extrapolated,
albeit cautiously, to a national level. Wildlife crimes such as
bushmeat poaching and other crimes were therefore excluded
from this study.
In highlighting the successes and ongoing challenges with the
prosecution of ivory, rhino horn and sandalwood crimes, this
report aims to inform stakeholders involved in the criminal trial
process on the continuing challenges and possible solutions
that fit in with Goal 2 of the National Wildlife Strategy 2018 –
2030, issued in June 2018 . This will enable ongoing investment
in strategic interventions that will make the Criminal Justice
Pathway6 an efficient and accountable deterrent in combatting
wildlife crime in this region and beyond.
With fresh leadership at the Ministry of Tourism
under His Excellency Cabinet Secretary Najib Balala,
demonstrated by the development of a revitalised
National Wildlife Strategy within the early days of
his tenure, a new Director of Public Prosecutions, Mr
Noordin Haji, and the appointment of Chief Justice
David Maraga in 2016, the strong foundations laid
by their predecessors may now be embedded and
further refined as Kenya looks forward to the meet the
challenges of preserving her natural heritage.
6 The term “criminal justice pathway’ denotes the process followed within the criminal justice system from the point of arrest through to first appearance, trial, sentence and appeal.
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study6
EXECUTIVE SUMMARYAt the Giants Club Summit in Botswana 20187, the former
Director of Public Prosecutions cited the leap in national
conviction rates for wildlife crime from 24% to over 80% since
the advent of the Wildlife Conservation and Management Act
2013 (WCMA 2013). Kenya has made significant advances in
her fight against wildlife crime in particular, not just with the
legislation but with the creation of a wildlife crime unit with
the Office of the Director of Public Prosecutions (ODPP), the
development of inter-agency protocols for early and continued
prosecution-led investigations and several training events
aimed at sensitizing the Judiciary on the impact of such crimes
on economies and security.
In a report generated by Wildlife Direct and co-authored by
the lead author of this report in 20158, a number of national
level recommendations were made. The implementation of
the prosecution and judicially focused recommendations is
assessed at the end of this report. However, given Space for
Giants’ presence within the North Central Kenya landscape,
this report informs how much of the initiatives developed since
WCMA 2013 have filtered down to the local level.
Accordingly, Space for Giants collected data through a
dedicated court monitoring programme to assess how 75 cases,
dealing with elephant ivory, black and white rhino horn and
East African Sandalwood, from ten strategic courts in North
Central Kenya, have been prosecuted since the enactment of the
WCMA in 2013. The programme (still ongoing) involves actively
watching brief in court and case tracking right from the moment
of arrest to the conclusion of a case, and providing support to
both prosecution and investigation authorities upon request by
the authorities (see Space for Giants’ best practice guidelines9).
7 https://spaceforgiants.org/2018/04/16/giants-club-summit-2018-summary-report/
8 https://wildlifedirect.org/resources/
9 http://spaceforgiants.org/wp-content/uploads/2017/11/Court-survey-guidance-Final.pdf
Beyond providing a baseline for prosecutions specific to North
Central Kenya, this report will inform stakeholders involved in
the criminal trial process, about the successes and continuing
challenges of prosecuting wildlife and forestry crime cases. It
sets out possible solutions to these challenges, and will inform
ongoing investment in strategic interventions to make the
Criminal Justice Pathway (CJP) an efficient and accountable
deterrent in combatting wildlife and forestry crime in this
region and beyond.
Overall the prosecution of ivory, rhino horn and sandalwood
cases is a long and protracted process within the North Central
Kenya landscape. It is difficult to pinpoint the exact reasons for
this but poor investigations, understaffed prosecution stations,
case backlog and corruption are all likely factors. In addition,
data indicate that magistrates are, in the majority of cases,
applying the minimum sentences as stipulated in the legislation
with a preference for the minimum fine with imprisonment
only in default of non-payment. Accordingly, those who can
afford to pay – perhaps the well connected accused persons
who are of value to an organised criminal network – walk away
from prison whilst those lower down the organised criminal
chain are incarcerated.
The study has also reinforced observations made previously
with regards to issues related to the WCMA 2013 legislation.10
For example, the high minimum sentences captured within
the Act have led to a predictably high incidence of not-
guilty pleas that contributes to a backlog of cases within the
larger courts of the region. The application of Active Case
Management (ACM)11 guidelines is critical to ensure that the
delivery of justice is sped up.
10 ibid 7
11 Issued by the Office of the Chief Justice in 2015 as part of a pilot project and now due for national roll out as part of a European Union funded “PLEAD” project. Active Case Management is a judicially driven process through which pre-trial conferences and the application of guidelines drafted by the judiciary, ODPP and other key stakeholders, are utilized in order to narrow pre-trial issues and reduce the need for adjournments.
January 2014 – May 2018 7
The key findings of the report are:
1. The majority of cases surveyed (85%) involved elephant
ivory with a raw weight of approximately 755kgs.
2. Conviction rates for concluded cases between 2014-
2018 stand at 67%.
3. 100% of all accused persons surveyed in this region
were Kenyan Nationals and 91% of them were male.
4. The majority of magistrates are applying the minimum
sentences upon conviction of wildlife crimes in
accordance with the legislation with a preference for
minimum fines and imprisonment only in default of
non-payment.
5. 63% of cases are still ongoing indicating a long and
protracted court process. Ivory cases on average take
20 months from start to completion and are likely to
experience approximately 5 adjournments. The most
common reasons for adjournments are the ‘court
not sitting’, witnesses not appearing in court (both
defence and prosecution witnesses) and the absence or
unpreparedness of the defence advocate.
6. The central Kenyan towns of Nyahururu and
Nanyuki have the highest number of reported
wildlife crime cases in the region, suggesting
they may play a key geographical role in terms
of poaching and wildlife trade within the region.
7. The majority of bail and bond terms awarded are
between KES 1–5 million (USD 10,000 – USD 50,000)
but low terms are still awarded in cases where the value
of the trophy far exceeds the bail and bond terms.
8. Within the region, ‘not guilty’ pleas stand at 96%.
9. Possession and dealing in wildlife trophies under the
WCMA 2013 constitute 91% of charges. Prosecutors
are not applying alternative legislation such as the
Prevention of Organised Crime Act, thus limiting the
use of ancillary charges and powers as promoted by the
Rapid Reference Guide (RRG).12
10. Sandalwood cases in North Central Kenya are being
charged under the WCMA 2013 as opposed to the Forest
Conservation and Management Act (FCMA) 2016 (or its
predecessor). This demonstrates a good understanding
of the inherent flaws in the forestry legislation and
a willingness to try alternative legislation in the
prosecution of forestry related crimes.
12 The development of the Rapid Reference Guide (RRG) was initiated by the lead author and the British High Commission in 2015 alongside the ODPP,KWS, NPS and other national government stakeholders. This together with agreed SOPs that addressed, among other things, the referral of ivory/rhino cases to the ODPP for charging decisions: interagency cooperation and guidance on digital evidence, was further subject to minor updates in 2016 with the assistance of the United Nations Office of Drugs and Crime. The RRG and SOPs were agreed by the national authorities and launched in 2015.
January 2014 – May 2018 7
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study8
1. INTRODUCTION Prior to the implementation of the WCMA 2013, penalties
imposed for wildlife crime across Kenya were typically low.13
With increasing global acceptance of the role that wildlife crime
plays in transnational organised crime and a surge in poaching
across Africa, including Kenya14, a new piece of legislation was
introduced in January 2014 – the WCMA 2013 – to create a
stronger deterrent. It stipulated severe custodial punishments
and fines, including life imprisonment.
From the outset it was clear that the implementation of the new
legislation would be a challenge, given the drafting loopholes
and inaccuracies and with the prosecution mandate changing
hands. With the phasing out of police prosecutors and the rapid
expansion of the ODPP, sensitisation to new legislation was
needed particularly with the spotlight upon Kenya as a notorious
participant in the poaching crisis sweeping across Africa.15
Technical expertise within Space for Giants has supported the
ODPP and Judiciary in applying a holistic approach to tackling
wildlife crime in Kenya. This has included drafting resolutions
approved by the Kenya National Economic and Security Council
in 2013 calling for the use of alternative legislation such as the
Proceeds of Crime and Anti Money Laundering Act 2010; and
supporting the ODPP in 1) fine-tuning its ‘code for charging’
applicable to all crime16, 2) the creation of a specialist wildlife
crime prosecution unit, 3) designing and delivering inter-
agency protocols and prosecution toolkits in 2015 and 2016
13 Previous penalties for ivory crime comprised a maximum fine of 40,000Ksh (400USD) and/or 10 years imprisonment.
14 https://www.theguardian.com/environment/africa-wild/2013/jun/07/kenya-wildlife-laws-elephant-rhino-deaths 7 June 2013
15 CITES recognizes Kenya as one of the “Gang of Eight”’ worst offenders in the poaching crisis, 2013. https://www.bbc.com/news/science-environment-21788664
16 ODPP national prosecution policy
and 4) initiating the development of mutual legal assistance
guidance for the Office of the Attorney General (AGO).17 By
working with development partners, national authorities and
NGOs, Kenya has laid the foundations for strong prosecutions
of wildlife crime on a national scale
In continuing to support this work, Space for Giants has focused
upon three core areas: 1) strong prosecutions, 2) trial without
delay and 3) proportionate and consistent sentencing. By
focusing upon these three areas and implementing the sort of
surgical interventions that can address underlying frameworks
and practices within the system, the deterrent effect of the
criminal justice system can be enhanced.
These efforts ultimately require monitoring and evaluation
to understand their impact. This study represented the ideal
opportunity to focus on some of Kenya’s courts to observe
successes and develop an in-depth understanding of the
challenges facing prosecutors and judges today. From an
organised crime perspective the selected species constitute
the most likely targets available in the region and accordingly
serve as a good ‘marker’ for progress within the court system on
handling of wildlife crime. Given the importance of this region
from a conservation standpoint, the geographical importance
with regards to transport routes and Space for Giants’ historical
presence and investment in the landscape, the region provides
a unique opportunity to understand how the court system
and legislation are performing within the region, with lessons
learned to be extrapolated to a national level.
17 https://www.capitalfm.co.ke/news/2018/03/kenya-launches-guidelines-for-mutual-legal-assistance-requests/
January 2014 – May 2018 9
2. STUDY AREANorth Central Kenya is one of the most wildlife rich regions
within the country, home to key conservation areas including
the Laikipia-Samburu Ecosystem, Mt. Kenya National
Park, the Aberdare National Park and Meru National Park.
Collectively these conservation areas account for an estimated
14,000 elephants (approximately 50% of Kenya’s total), over
75% of Kenya’s white rhinos and well over 50% of Kenya’s black
rhino population.18 In addition, East African Sandalwood,
though widely distributed across Kenya and especially the
northern rift, is scattered with low population abundances.19
Given these globally important wildlife populations, the region
faces pressures associated with the poaching and trafficking of
wildlife crime products.
Rather than investing resources in penetrating wildlife crime
cartels to understand the scale of the trade, which falls outside
18 A Wildlife Conservation Strategy for Laikipia County (2012-2030): First Edition, 2012. Laikipia Wildlife Forum, Nanyuki, Kenya.
19 http://www.trafficj.org/cop16/pdf/CoP16_Prop69_Analysis.pdf
the scope and expertise of Space for Giants, we targeted
specific courts within the region to look at the prevalence of
wildlife and forestry crimes cases that involved ivory, rhino
horn and sandalwood. We identified the main court stations
within the region and selected ten court stations based mainly
on their geographic locations i.e. courts located near or next
to the key conservation areas mentioned above and which
were also within a reasonable distance from Space for Giants
headquarters in Nanyuki and which fell on likely transit
routes for the movement of contraband from northern Kenya
to southern Kenya. The counties where the selected courts
are located account for 4.5 million people (12% of Kenya’s
population, 2009 Census20). Of the ten courts selected, six of
them include a high court (Nanyuki, Nyahururu, Meru, Chuka,
Embu, Nyeri) while the remainder are magistrates courts.
20 https://www.knbs.or.ke/download/population-distribution-by-sex-number-of-households-area-and-density-by-county-and-district/
Figure 1: Court locations within the study site
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study10
3. METHODOLOGYThe lead author of the report had previously designed and
drafted legal recommendations on two baseline court survey
reports produced by a Kenya based NGO, WildlifeDirect21 in 2013
and 2015 which analysed wildlife crimes across many courts in
Kenya. This study followed the same methodology alongside
specific guidance issued by Space for Giants concerning the
day-to-day conduct of court monitors, adherence to Kenya Law
Society standards on ethics and adherence to media laws and
the sensitivities surrounding case reporting.
Data collection was systematically carried out by Space for Giants’
Court Monitoring Officer (CMO) between April 2016 – May 2018
by visiting all above-mentioned court stations. Prior to starting
data collection the CMO was introduced to the ODPP offices and
the court registry personnel to develop an initial relationship
that grew over the length of the project. At the start of the survey
period the CMO travelled to each of the selected court stations to
peruse the court registry (where all case numbers are recorded
and details of the relevant legislation under which the accused are
charged). From the registry the CMO was able to request access
to the case files that pertained to wildlife and forestry crime and
determine which species were involved.
Where cases were ongoing the CMO was usually able to get access
to the files in question. Where cases had already been concluded
the file had usually been transferred to the archives or sent for
typing up proceedings (in the event of an appeal) and thus it
was not always possible to recover the file given the absence of a
digitised case management system in Kenyan courts.
Through this process the CMO was able to generate baseline
data of all cases that were either concluded or still ongoing
since the enactment of the WCMA 2013 in January 2014. Only
cases that were prosecuted under the new WCMA 2013 were
considered in the analysis. For example, the case of Republic
versus Mohammed Warsame (Cr. 158/2016) that involved
the killing of a rhino at Ol Pejeta Conservancy in 2011 was
excluded from the analysis because the accused was arrested
in 2011 before absconding only to be re-arrested in 2016. Since
21 https://wildlifedirect.org/resources/ The 2013 report covered 18 courts nationally; the second report covered 50 courts for the first year of data collection and 52 courts for the second.
he is being charged under the previous act, CAP 376, which has
different penalties, this was not included.
Where the case file was available for perusal the CMO extracted
the following information: ● Case file number● Name of the accused● Nationality of the accused● Gender of the accused● Offence(s) charged with● Bail or bond● Particulars of the case● Arresting authority● Court location● Date of arraignment in court● Date of plea● Nature of plea● Prosecuting authority● Whether represented● Number of adjournments● Nature of species● Species CITES Appendix listing● Exhibits seized and weight● Street value● Mention dates and number of adjournments● Outcome of case● Sentence● Appeal proceedings● Results
However, not all of this information could be retrieved at
times due to a number of reasons e.g. unreadable proceedings,
misfiling of documentation or failure to note down key
information within the court file.
For all active cases the CMO noted down the next court dates and
travelled to each court location on the specified date to attend the
proceedings. During the proceedings the CMO took a detailed
account of all the developments in the case. Through this process
the CMO developed a close working relationship with the relevant
authorities, providing assistance with research for final case
file submissions, liaising with KWS headquarters to ensure the
attendance of key witnesses and following up with lost exhibits.
January 2014 – May 2018 11
4. RESULTS4.1. OVERVIEW OF CASESIn total 75 cases were registered in the region between January
2014 and May 2018 (Table 1). On average 16 cases were
registered per year without a clear increasing or decreasing
trend for the completed years (2014 – 2017). Approximately
84% of the cases related to purely ivory, 11% to sandalwood,
4% to rhino horn and 1% to a combination of the selected
species being monitored. The overwhelming majority of these
cases (63%) are still ongoing. For the 28 cases that have been
concluded since 2014 the conviction rate stands at 67%. Whilst
at first blush this appears well below the national conviction
rates, the ODPP Wildlife Crime Data comprises ALL offences
prosecuted under WCMA 2013 and does not distinguish
between ivory, rhino or other high profile species (Table 2
below). All cases observed during this survey were prosecuted
by the ODPP.
Table 1: Status of cases in North Central Kenya 2014 – 2018 for crimes relating to Ivory, Rhino and Sandalwood
Table 2: ODPP (national) Wildlife Crime Data 2014 – 2017 for ALL wildlife crime 22
The 75 registered cases examined amount to:
● 755kgs of raw unworked ivory (with details on weights
missing in 17 cases);
● 22.5 tons of raw unworked sandalwood (with details on
weight missing from 3 cases);
22 Figures taken from 1. Office of the Director of Public Prosecutions. (2015). FY 2014/15 Annual Progress Report. Nairobi: ODPP. 2. Office of the Director of Public Prosecutions. (2016). FY 2015/16 Annual Report. Nairobi: ODPP. 3. Office of the Director of Public Prosecutions. (2017). FY 2016/17 Annual Report. Nairobi: ODPP.
● 7.0kgs of raw unworked rhino horn (with details on weight
missing from 1 case).
The above constitutes a significant amount of illicit product for
this region. While it is not possible to draw direct comparisons
with the rest of Kenya for the same period data shows that
between 2005 – 2014 over 24,000 kg of ivory was seized in
Kenya (mainly at Mombasa Port)23 – this amount is likely to only
constitute a fraction of the amount of ivory that actually moved
through Kenya. Nevertheless, we believe that this amount of
illegal product suggests North Central Kenya plays an important
role in the demand and/or trafficking of such products.
Approximately 60% of ivory cases are still ongoing, all cases
concerning purely rhino horn cases are still ongoing and 75%
of sandalwood cases are still ongoing (Table 3). There was only
a single case (Cr. 701/14) reported that involved a combination
of the species we were monitoring. Ivory cases have seen a total
of 25 reach a conclusion with a conviction rate of 65%.24 Overall
this data demonstrates a slow conclusion rate.
23 https://www.unodc.org/documents/wwcr/Ivory.pdf
24 By ‘concluded’, this refers to the court reaching either an acquittal or a conviction or where the case is withdrawn following charge; a ‘withdrawal’ occurs when the prosecution discontinues a case against an accused person either before or during trial.
Registered Concluded Cases Conviction Rate Case Conclusion RateConviction Acquittal Withdrawal
1079 337 67 52 83% 42%
Registered Concluded Cases Ongoing Conviction Rate
Case Conclusion
RateConviction Acquittal Withdrawal
75 16 8 4 47 67% 37%
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study12
Table 3: Percentage of cases ongoing per type of case
Species Percentage of cases ongoing
Ivory 60%
Rhino Horn 100%
Sandalwood 75%
Rhino & Ivory* 0%
* Only a single case was reported for this category. Cr 701/14
reported on 25th July 2014 and concluded in June 2015.
4.2. SPATIAL DISTRIBUTION OF CASES The data indicates that Nyahururu and Nanyuki reported the
majority of registered wildlife crime cases in the region (52%
- Figure 2). While neither of these towns is the most populous
in the region (Nanyuki’s population is estimated at 50,000;
Nyahururu at 51,000 while Nyeri’s at 125,000)25, their strategic
locations adjacent to wildlife rich areas and/or their positions
as transport hubs might explain why these courts register the
most cases.
25 Kenya National Population 2009 Census Vol 1 Table 3 Rural and Urban Population
The data indicate that while ivory cases are widespread across
the region, rhino horn cases, albeit limited in number, are
reported in three courts (Nanyuki, Nyahururu and Isiolo) each
of which lie within close proximity of key rhino reserves such
as Ol Pejeta Conservancy, the Borana-Lewa Conservancy and
Solio Ranch which collectively host a significant percentage of
Kenya’s rhinos. It is difficult to draw any conclusions regarding
trends in sandalwood cases given their small sample size and
lack of accurate data on its distribution and abundance.
Between 2014 – 2017 the number of cases reported each year
has remained relatively constant varying between 14 – 19 cases.
Only eight cases have been reported for 2018 thus far but this
only constitutes the period January to May. On average 14
ivory cases are registered in the region annually; in terms of
sandalwood and rhino horn, given the small size of the samples,
it is not possible to draw any conclusion on trends in respect of
these species (Table 4).
Elephant
02468
101214161820
Nyahu
ruru
Nanyu
ki
Meru Isiolo
Nyeri
Karatin
a
Chuka
Nkubu
Karaba
Ruyen
jes
Rhino Sandalwood
Court Station
No.
of C
ases
Rhino/Ivory
Figure 2: Number of cases per species per court 2014–2018
January 2014 – May 2018 13
Table 4: Number of cases registered per species per year 2014–2018 (*only January to May)
4.3. OVERVIEW OF THE ACCUSEDIn total, 126 accused persons were registered for the 75 cases
(data were missing from two cases). All accused persons were
Kenyan nationals and 91% were male. The majority of female
accused persons (73%) were involved in sandalwood cases.
Traditionally women collect firewood in rural African contexts
and organised crime groups may be employing this as a strategy
to avoid detection by the authorities (e.g. a man carrying wood
may raise more suspicion). Over half of the cases involved
a single accused person but 18% of cases had three or more
accused individuals suggesting the involvement of elements of
organised crime (Figure 3).
Figure 3: Number of accused per case in North Central Kenya 2014–2018
4.4. ADJOURNMENTS AND DURATION OF CASESOf the 25 concluded ivory cases (conviction, withdrawal and
acquittal) registered in the period, the case duration from first
appearance to conclusion ranged from 0 months (guilty plea
by the accused) to 38 months. The majority of the cases took
between 12–18 months with an overall average of 20 months
(Figure 4).
Figure 4: Duration of concluded ivory cases in North Central Kenya 2014–2018
There are multiple reasons as to why a case may take 20 months
on average. For example, some courts situated in bigger towns
or covering a larger jurisdiction tend to take longer to conclude
cases because they are a part of a larger court caseload in
general. For example the data from Meru Law Courts indicates
that none of the wildlife crime cases within its courts proceeded
to hear any evidence on the scheduled hearing dates during
the whole of 2016-2017. Despite this observation it is also
important to note that the fact that a wildlife case in a certain
court station has not been heard does not mean that other non-
wildlife cases in that court are not progressing at pace.
An analysis of adjournments for all 75 cases revealed a total
of approximately 296 adjournments (data was missing for
15 cases). This is likely to be an underestimate as not all
adjournments may have been captured in the case file. Cases
that registered zero adjournments were all registered in late
2017 and 2018 and should not be interpreted as examples
where cases proceeded from start to finish without delay. The
analysis showed that the average number of adjournments
for the cases surveyed was approximately five (Figure 5). This
is not unusual: a baseline survey conducted by the United
Year Elephant Rhino Sandalwood Elephant/Rhino Total2014 16 1 0 1 182015 13 0 1 0 142016 13 2 4 0 19
2017 13 0 3 0 162018* 8 0 0 0 8Total 63 3 8 1 75
3%
18%
28%
54%
1Accussed
2Accussed
3Accussed or more
Unknown
Duration
No.
of C
ases
0-6 months0
1
2
3
4
5
6
7
8
7-12 monthsmonths months months months months13-18 19-24 25-30 31-36 37-42
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study14
Nations Office on Drugs and Crime (UNODC) in 2015, prior to
the implementation of an ACM pilot scheme aimed at reducing
delay, showed an average of seven adjournments per case
with felonies taking on average 32 months and misdemeanors
approximately 17 months, to conclude. Approximately 83% of
defence counsels, 75% of judicial officers, 38% of police officers
and 35% of the prosecutors surveyed expressed dissatisfaction
with the length of time that cases took to conclude.26
Figure 5: Adjournments in wildlife crime cases in North Central Kenya 2014–2018
Examples of cases that have taken a long time to conclude or
are still ongoing are shown in the Case Studies 1 – 5 below:
Case Study 1Case Details 864/2014; Republic vs. David Gitonga
Mwariama; Nanyuki Law Courts
Court Dates 24/9/2014 – 30/8/2017; 35 monthsParticulars Possession of 8 pieces of ivory weighing
43kgs. Number of Adjournments
8
Comments Main adjournment reasons were the defence advocate not being ready to proceed and the judgment not being ready.
Outcome Guilty
26 UNODC Baseline Survey on Active Case Management in Criminal Matters, Beverline Ongaro UNODC consultant 20/08/2015
Case Study 2Case Details 421/2014; Republic vs. Anderson Mwenda
& George Waruru; Nyeri Law Courts
Court Dates 8/5/2014 – 9/11/2016; 30 monthsParticulars Possession of 2 pieces of ivory weighing
5.5kgs. Number of Adjournments
15
Comments The majority of the reasons cited in Figure 5 below.
Outcome Guilty
Case Study 3Case Details 2411/2014; Republic vs. Steven Kipngetich
Maiyo; Nyahururu Law Courts
Court Dates 7/10/2014 – 3/2/2017; 28 monthsParticulars Possession and dealing of 20 pieces of
ivory weighing 45kgs. Number of Adjournments
Unknown
Comments N/AOutcome Guilty for possession, Acquitted for
dealing
Case Study 4Case Details 33/2014; Republic vs. Nelson Kithuku
Kinyua; Karatina Law Courts
Court Dates 14/1/2014 – Present; 52 months and still ongoing
Particulars Possession of 2 pieces of ivory weighing 5kgs.
Number of Adjournments
15
Comments The majority of the reasons cited in Figure 5 below.
Outcome Ongoing
Case Study 5Case Details 882/2014; Republic vs. Steven Mwaniki &
David King’ori; Nyeri Law Courts
Court Dates 29/9/2014 – Present; 44 months and still ongoing
Particulars Possession of 2 pieces of rhino horn. Number of Adjournments
19
Comments The majority of the reasons cited in Figure 5 below.
Outcome Ongoing
No. of Adjournments
00
2
4
6
8
10
12
14
16
1 2 to 3 4 to 5 6 to 10 10 + Unknown
No.
of C
ases
January 2014 – May 2018 15
The above cases all commenced in 2014, before the 1st edition
of the Rapid Reference Guide and Standard Operating
Procedures (SOPs) were issued, alongside relevant training
in the region. Accordingly, the length of those 2014 cases may
reflect a poor technical awareness regarding wildlife crime at
the time of charge, coupled with a failure to regularly review
the case and either address deficiencies in good time or make
a timely decision to withdraw. Concerns over allegations of
malicious prosecution27 may also manifest in a reluctance to
withdraw weak cases – this shows both a misunderstanding of
the test regarding malicious prosecutions28 as well as a lack of
understanding of the true nature of the code for charging and
the obligations upon prosecution counsels. The slow progress
may also reflect poor case management at the judicial level that
in turn may result in witness fatigue/attrition, contributing
to further adjournments as those involved in the cases are
transferred or move on.
Given the large number of adjournments present in cases in the
region it is critical to understand the underlying reasons that
27 “Malicious Prosecution” means the wrongful institution of criminal proceedings against someone without reasonable grounds, and can amount to an actionable suit by a wrongfully accused person.
28 South Africa Court of Appeal case of George Magwabeni v Christopher Liomba 198/2013 {2015} set out a four stage test for considering if a prosecution amounts to a ‘malicious prosecution’
are responsible for these adjournments. Our analysis showed
that the top three reasons were due to the court not sitting
(this includes reasons such as the magistrate being indisposed
or on leave), witnesses not turning up to court (both defence
and prosecution) and the defence advocate not being in court
or unprepared to proceed (Figure 6). Other reasons of concern
were the lack of exhibits being produced in court and the
absence of the police file. A detailed breakdown of adjournment
reasons is provided in the Table 5.
Reasons for Adjournments
No.
of A
djou
rnm
ents
0
Court n
ot sit
ting
Lack
of w
itnes
ses
Absen
ce or
unpre
pared
ness
of de
fence
...
Lack
of ac
cuse
d pers
onLa
ck of
exhib
itsLa
ck of
Prosec
utor
Other/U
nkno
wnCou
rt app
licatio
nsLa
ck of
police
file
20
40
60
80
100
Figure 6: Reasons for adjournments in wildlife crime cases in North Central Kenya 2014–2018
Table 5: Explanation of adjournments in wildlife crime cases in North Central Kenya 2014–2018
Reason Description
Court not sitting Magistrate unwell, bereaved, on leave, attending training, attending to other official duties or has been transferred to another court station.
Lack of witnesses Witnesses were not bonded to attend court, bereaved, unwell, or lacked facilitation to attend court, or hearings were set on dates without consideration to their availability. 29
Absence or unpreparedness of defence advocate
Accused person/Defence Counsel not ready to proceed due to them being unwell, bereaved, attending to other official duties, the case being reallocated to a new court or the advocate only recently being instructed and requiring time to prepare.
Lack of accused person Either the accused has absconded or was absent due to poor planning by the National Prisons Service.
Lack of exhibits Most commonly KWS lacked logistics to transport the exhibits to court.
Lack of prosecutor The prosecutor might be on leave, attending a training, holding brief for a colleague in another court or otherwise indisposed.
Other/unknown Court could be time constrained e.g. matters on the day’s cause list take too long especially if it is the duty court. Court will give priority to older cases and adjourn the recent cases. Judgment/Ruling not ready. Matters falling on public holidays e.g. the elections period. When the judiciary has timelines to conclude certain cases e.g. election petitions or children cases.
Court applications Amending charge sheets – this depends on the type of amendment. Major amendments might require that the defence counsel are given time to go through the amended charge sheet and respond to the application for amendment.
Lack of police file Could be misplaced or lost. Once confirmed to be lost, requires time for reconstruction of the specific file.
29 One of the express recommendations in the SOPs was to garner ‘dates to avoid’ for witnesses in order to maximize chances of their attendance at court. This is clearly not being applied.
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study16
4.5. CHARGES AND PLEASThe majority of charges (84%) are related to ivory cases with
only a few attributed to rhino horn and sandalwood cases (Table
6). 91% of charges relate to possession of or dealing in a wildlife
trophy (Figure 7). The data indicate that there remains some
inconsistency with charging for possession and/or dealing
of wildlife trophies under the WCMA 2013 legislation. For
example, prosecutors in the region have charged for dealing in
a wildlife trophy using 3 different sections in the Act in varying
combinations (e.g. s84 (1) as read with s92, s95 alone, s92
alone and s95 as read with s92) as a result of problems with the
way the legislation has been drafted.
In addition, few alternative charges have been preferred for
crimes relating to these three key species. For example, despite
nearly 20% of registered cases having three or more accused
persons there were no examples of any Prevention of Organised
Crime Act offences being applied. This suggests that guidelines
stipulated in the Rapid Reference Guide and SOPs that call
for early engagement between investigators and prosecutors
precisely in order to anticipate alternative charges and direct
investigations accordingly, are not being applied.
Table 6: Charges per species in North Central Kenya
Charge Section Act Elephant Rhino Sandalwood Elephant/Rhino*
Total
Possession of wildlife trophy
95 WCMA 2013 61 3 4 1 69
Dealing in wildlife trophy
84 (1) as read with 92
WCMA 2013 35 3 5 0 43
Dealing in wildlife trophy
95 WCMA 2013 3 0 0 0 3
Possession of specified firearm
4 (1) Firearms Act Cap 114
2 0 0 0 2
Trespass 3 (1) as read with II
Trespass Act Cap 294
0 0 2 0 2
Possession of wildlife trophy
95 as read with 92
WCMA 2013 1 0 0 0 1
Dealing in wildlife trophy
95 as read with 92
WCMA 2013 1 0 0 0 1
Dealing in wildlife trophy
92 WCMA 2013 0 0 1 0 1
Possession of firearm
89 Penal CodeCap 63
1 0 0 0 1
Unlawful possession of ammunition
4 (2) as read with 4 (3)
Firearms Act Cap 114
1 0 0 1 2
Conspiracy to commit felony
393 Penal CodeCap 63
0 1 0 0 1
Preparation to commit felony
308 (1) as read with 308 (4)
CPC 75 1 0 0 0 1
Killing animal with intent to steal
289 Penal CodeCap 63
0 1 0 0 1
Removing forest produce
52 (1) as read with 55 (1)
Forest Act 2005
0 0 1 0 1
Unknown N/A N/A 1 0 0 0 1Total N/A N/A 107 8 13 2 130
* This denotes Cr. 701/14 which involved both ivory and rhino horn trophies
January 2014 – May 2018 17
Figure 7: Charges preferred for wildlife crime cases in North Central Kenya 2014–2018
With the introduction of hefty minimum penalties captured
in the WCMA 2013, very few individuals are choosing to plead
guilty - in just three of 75 cases (4%) did the accused plead
guilty to the charges. All of these cases involved ivory.
4.6. BAIL AND BOND Bail and bond in Kenya is available to all suspects of any
criminal offence as a constitutional right as stipulated in
Article 49 (1) (h) of the constitution, unless the prosecution
proves there are ‘compelling reasons’ not to be admitted to
bail or bond. The issue of bail/bond is largely a question of
judicial discretion and the magistrates will award or deny bail/
bond depending on the nature of offence charged, different
circumstances surrounding each case, accused person’s
mitigating reasons and any other compelling reasons as to
why the accused persons should be denied bail/bond. The Bail
and Bond Policy Guidelines issued by the National Council on
the Administration of Justice in March 2015 gives guidance
on what might constitute ‘compelling reasons’ and these are
captured in the Rapid Reference Guide and SOPs.
None of the cases in the region has seen the accused persons
being denied bail/bond. Instead, where the Investigation
Officers have sworn affidavits to oppose bail citing compelling
reasons as guided by the Rapid Reference Guide, the
magistrates have opted to award strict bail/bond terms
instead of denying bail/bond. This has then seen a trend of
both accused persons and prosecution making applications
at the High Court for review of bond terms. The High Court
will in most cases allow the application for review and reset
bond bail/bond terms noting that bail/bond is a constitutional
right and that the terms should be fair, aimed at securing the
accused person’s attendance at the trial rather than punishing
the accused person. Examples of bail and bond awarded in the
region are shown in the boxed Case Studies 6 and 7.
Case Study 6
Case Details 1922/2016; Republic vs. Samuel Avariswa and 2 others; Meru Law Courts
Particulars of the offence
The accused were charged with possession and dealing in wildlife trophies, namely 9 pieces of elephant tusks, weighing 22kgs without a permit contrary to section 95 WCMA 2013.
Bail/Bond terms A bond of KES 10 million or the alternative of a cash bail of KES 5 million each was set. Upon moving to the High Court, the bail/bond terms were reviewed to a bond of KES 2 Million or the alternative of a cash bail of KES 750, 000.
Comment Judge R.P.V Wendoh in allowing the application stated: “In an application for bond, the court considers inter alia whether the accused will turn up for the trial, the seriousness of the charge and likely sentence; and whether the accused will interfere with witnesses. No doubt, the accused are facing very serious charges, that involve protection of Kenya’s wildlife, that is threatened with extinction. The new laws enacted in 2013, have provided very stiff penalties… because of the stiff penalties, the likelihood of absconding is high and that is why the court would call for more severe bond terms to ensure that the accused do not take it lightly but must attend court. It is not a sentence because the accused are still deemed to be innocent. The terms should also not be so harsh or excessive as to amount a denial of the bond. They should be reasonable considering the circumstances of each case”.30
30. Samuel Avasirwa Masimbi & 2 others v Republic [2016] eKLR 30
1%
8%
37% 54%
Possession of wildlife trophy
Dealing in wildlife trophy
Other charges
Unknown
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study18
Case Study 7Case Details 232/2016; Republic vs. Joseph Njuki Nguku;
Nanyuki Law CourtsParticulars of the offence
The accused were charged for dealing in wildlife trophies namely 2 rhino horns without a permit contrary to section 84 (1) as read with section 92 WCMA, possession of 2 rhino horns without a permit contrary to section 95 WCMA, conspiracy to commit a felony contrary to section 393 Penal Code and killing an animal with intent to steal contrary to section 289 Penal Code.
Bail/Bond terms The accused were admitted to a bond of KES 500,000. The Prosecution applied for review of these bond terms and the same was reviewed upwards from a bond of KES 500,000 to a bond of 2 Million Shillings and a Surety of 1 Million Shillings with an alternative of a cash bail of KES 500,000 for each accused person.
Comment N/A
How bail issues are determined in courts may have a major
bearing on the capacity of the prosecution to maintain the
integrity of their case given that one of the common reasons for
adjournment includes the absence of the accused (see section
4.4. on Adjournments in Courts). A more robust approach
to bail decisions can be seen in relation to charges of dealing
and possession of wildlife trophies, namely elephant tusks and
rhino horns. The vast majority of cases (nearly 40%) resulted
in significant bail and bond allocations in the range of KES 1m
– 5m (USD 10,000 – USD 50,000) (Figure 8).
However, some ivory and sandalwood cases still attracted
low bail amounts despite the values of the trophies and high
penalties suspects face thereby increasing the risk to abscond.
For instance, Cr. 122/16 Republic vs. Mandera Kiprop only
resulted in a bond of KES 500,000 (USD 5,000) despite the
accused being charged with possession and dealing of 14 tons
of sandalwood clearly indicating a large scale operation in the
trafficking of such trophies. Examples of low bail and bond
awarded are shown in Case Studies 8 – 10.
Case Study 8
Case Details 122/2016; Republic vs. Mandera Kiprop; Nyahururu Law Courts
Particulars of the offence
The accused was charged with possession and dealing of 14 tonnes of East African Sandalwood contrary to section of 84(1) as read with section 92 and section 95 as read with section 105 of the WCMA 13.
Bail/Bond terms The accused were initially admitted to a bond of KES 500,000 which was later reduced to KES 50,000.
Comment The KWS valued the sandalwood at KES 10.5 million. The accused absconded. The previous Magistrate Hon. V. Ochanda recused herself from hearing the matter on 21/06/16 after some letters were written by third parties on matters pertaining to review of the bond.
Case Study 9
Case Details 595/2016; Republic vs. Moses Mukuto, Martin Wahogo and Edward Wambui; Isiolo Law Courts
Particulars of the offence
The accused was charged with removing forest produce under section 52 (1) (a) as read with section 55 (1) (a) of the Forest Act 2005.
Bail/Bond terms The accused were admitted to a bond of KES 100,000.
Comment The KWS valued the sandalwood at KES 3.5 million. The first and third accused absconded. The case was withdrawn on 14/03/18 under section 87 of the CPC due to failure by police witnesses to attend court.
Case Study 10
Case Details 62/2014; Republic vs. Meldewa Lelempere; Isiolo Law Courts
Particulars of the offence
The accused was charged with possession of a wildlife trophy, namely 1 elephant tusk weighting 1.5kg, contrary to section 95 WCMA 2013
Bail/Bond terms The accused was admitted to a cash bail of KES 5,000.
Comment The KWS valued the ivory at KES 75,000. The accused absconded. From 22/04/14 to 22/09/14 the matter came up in court 10 times but the accused person could not be availed. His sister who was his surety was summoned in court and said that she was not aware of her brother’s whereabouts. She was ordered to avail him but also absconded.
January 2014 – May 2018 19
As discussed above, bail and bond are a constitutional right.
Nevertheless, awarding of low bail and bond terms in cases
pertaining to high value species such as ivory, rhino horn and
sandalwood is counterproductive. As a result of the seriousness
of the offence and high associated penalties the likelihood of
absconding is high (as is clearly illustrated in Case Studies
8-10). The Bail and Bond Policy issued by the Judiciary in 2015
is apparently not consistently applied as this data suggests.
Figure 8: The range of bail and bonds given for wildlife crime cases in North Central Kenya 2014 -2018
4.7. SENTENCINGWith 63% of cases still ongoing it is evident that conclusion rates
are slow in the region, especially in Nanyuki and Nyahururu.
Since no registered rhino horn cases were concluded (save the
one which also included ivory)31 and no convictions have taken
place for sandalwood cases yet, analysis has focused on the
sentencing patterns of ivory cases.
31 Cr. 701/2014 involved both ivory and rhino horn and has thus been classified as its own class, falling neither under rhino horn or ivory.
Almost three-quarters of all concluded ivory cases were met
with fines with a custodial sentence only in default of payment
(Figure 9). The practice of issuing a fine, with imprisonment
in default, does not sufficiently deter serious offenders. It can
result in the rich, well-connected or those who are valuable to
an organised criminal network, effectively paying their way out
of a prison whilst the poor, unconnected individuals who are
lower down the hierarchy of an organised criminal network,
go to prison. Such an approach and potential impact does
not serve the interests of justice in the long run as such fines
become just another business cost that organised criminal
networks will budget for.
The occurrence of some sentences being passed which are
exclusively jail terms or a jail term and a fine is a positive step
towards making the law a viable deterrent in combating wildlife
crime (see Case Study 11-13).
Figure 9: Sentencing patterns for ivory cases in North Central Kenya 2014 -2018
Elephant
Unknown/Notapplicable
0-99K 100K-499K 500K-1999K 1M-1.99M 5M+0
5
10
15
20
25
30
Rhino Sandalwood
Bail & Bond Range
Num
ber o
f Cas
es
Rhino/Elephant
Case Study 11
Case Details 864/2014; Republic vs. David Gitonga Mwarima; Nanyuki Law Courts
Particulars of the offence
On 24/9/2014 the accused was charged with possession of wildlife trophies, namely 8 pieces of elephant tusks, weighing 43kgs without a permit contrary to section 95 WCMA 2013.
Sentence handed down
On 30/8/2017, Hon. Lucy Mutai found the accused person guilty of the possession of wildlife trophies without a permit and sentenced him to pay a KES 1 million fine AND serve 5 years imprisonment. Further serve 1 more year imprisonment if the accused was unable to pay the KES 1 Million fine. This meant that should the accused person fail to pay the KES 1 Million fine, he would end up serving 6 years imprisonment. 3
Jail
Fine OR Jail
Jail AND Fine
77%
9% 14%
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study20
Case Study 12
Case Details 380/2014; Republic vs. Christopher Lenekai, Simirai Lengosungi and LaudiLesibi; Isiolo Law Courts
Particulars of the offence
The accused were charged with possession of wildlife trophies, namely elephant tusks, without a permit contrary to section 95 of the WCMA 2013 as well as possession of a specified firearm contrary to section 4A(1) of the Firearms Act.
Sentence handed down
On 23/09/2015 the accused were sentenced to serve 5 years imprisonment for each count without the option of a fine. Both sentences to run concurrently.
Case Study 13
Case Details 515/2015; Republic vs. Emmanuel Lekarasoi; Isiolo Law Courts
Particulars of the offence
The accused was charged with possession and dealing of wildlife trophies, namely 8 pieces of elephant tusks, weighing 22kgs without a permit contrary to section 95 and section 84 (1) as read with section 92 of the WCMA 2013.
Sentence handed down
On 8/2/2017 Hon. R. Mundia found the accused guilty of both counts, however he was not convinced that the accused was an adult. On 23/3/2017 the age assessment report filed in court stated that the accused person was in fact 17 years old. The magistrate committed the accused person to 3 years at the Shimo La Tewa Borstal Institution in Mombasa County.
Ivory crime was inconsistently sentenced in the region (Table 7).
Magistrates have applied the minimum sentence for possession
of a wildlife trophy under Sec. 95 of the WCMA (KES 1 million
fine and/or 5 years imprisonment) in nine out of 16 concluded
cases that resulted in a conviction. Of those, the majority set
the imprisonment only in default of non-payment of the fine.
This suggests that the majority of magistrates determine that a
fine alone is commensurate with the seriousness of the offence
and NOT a loss of liberty.
Table 7: Sentencing patterns of concluded ivory cases in North Central Kenya 2014–2018
Cr. No. Count 1 Count 2 Trophies Weight (Kg) Sentence Count 1
Sentence Count 2
701/14 Possession 95 Firearm Offence 4 0.5 Rhino0.25 Ivory
1M or 0.5Y 5Y
421/14 Possession 95 N/A 2 5.5 1M or 5Y N/A
740/14 Possession 95 Dealing 84 (1)/92 2 5 1M or 5Y 20M or Life
1159/14 Possession 95 Dealing 84 (1)/92 2 0.6 1M or 5Y Acquitted
864/14 Possession 95 N/A 8 43 1M and 5Y N/A
159/14 Possession 95 N/A 1 N/A 3M or 7Y N/A
380/14 Possession 95 Firearm Offence N/A N/A 5Y 5Y
572/14 Possession 95 Dealing 84 (1)/92 2 15 3M or 5Y 3M or 5Y
2411/14 Possession 95 Dealing 84 (1)/92 20 45 1M or 5Y Acquitted
515/15 Possession 95 N/A 8 22 3Y N/A
399/15 Possession 95 N/A 4 42.5 0.5M and 2.5Y N/A
1403/15 Possession 95 N/A 2 7 1M or 5Y N/A
106/16 Possession 95 Dealing 84 (1)/92 1 6 1M or 1Y 1M or 1Y
608/16 Possession 95 Dealing 84 (1)/92 N/A N/A 3M or 2Y 20M or Life
205/16 Possession 95 Dealing 84 (1)/92 4 8.7 1M or 5Y Acquitted
477/18 Possession 95 Dealing 84 (1)/92 7 30 1M or 5Y 20M or Life
* M denotes 1 million KES fine (USD 10,000); Y denotes years imprisonment
January 2014 – May 2018 21
Of concern is that despite numerous judicial dialogues
conducted by the Judicial Training Institute since 2014,
and other trainings delivered to the judiciary by NGOs and
development partners, 6 of 16 concluded cases (38%), resulted
in sentences that did not comply with the minimum penalties
set out under the legislation. For example, in Cr. 399/15 the
magistrates awarded a sentence of a KES 500,000 fine or a
2.5 year jail term while in Cr. 701/14 the magistrate sentenced
the accused to a KES 1 million fine or 6 months imprisonment
despite the stipulated minimum sentence for possession of a
wildlife trophy under Sec. 95 of the WCMA being KES 1 million
fine and/or 5 years imprisonment.
38% is a significant figure. The problem is compounded by
what appears to be lack of a robust approach to appeal by the
ODPP raising the suggestion, possibly unfair, of corruption
within the system. With the exception of Cr. 701/14 where the
accused lodged an appeal and Cr. 399/15 where the accused
have requested typed up proceedings presumably with an
intention of appealing, no other appeals have been lodged by
the State. This also suggests that the prosecution and KWS
are not conducting post-trial conferences to discuss next steps
as recommended in the SOPs. There may also be a lack of a
formalized protocol within the KWS structure that promotes
timely and accountable appeals being lodged in order to
serve justice. This must be addressed as soon as possible as
observations from the field suggest the lack of action taken
against such sentences is a key demotivating factor for
arresting officers.32
4.8. ACQUITTALSEight concluded cases have resulted in acquittals, either under:
• Section 210 of the Criminal Procedure Code (CPC – after
hearing the prosecution case, the court finds that the
evidence put forward is not sufficient to place the accused
person on his defence).
• Section 215 of the CPC (after hearing both the evidence of
the prosecution and that of the accused person, finds the
accused person not guilty of the charges against him).
Most acquittals (5) in this region have fallen under section 215
CPC, usually due to prosecution witnesses giving inconsistent
and contradictory evidence in court or the prosecution
witnesses giving testimony that does not support or disclose
the charges preferred against the accused persons (Case Study
14–15).
32 Discussions between the authors and KWS personnel within the region.
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study22
Case Study 14
Case Details 1212/2015; Republic vs. Daniel Palion Mukoondo; Nyahururu Law Courts
Particulars of the offence
The accused was charged with possession of wildlife trophies, namely 5 pieces of elephant tusks, without a permit contrary to section 95 WCMA 2013.
Outcome Acquittal under section 210 of the Criminal Procedure Code
Comment Two Prosecution witnesses who were arresting officers gave contradictory testimonies as to where the trophies were recovered, leaving court wondering whether the witnesses were together during the recovery. Hon. A. P. Ndege stated “the inconsistencies on where and how the ivory pieces were recovered are so material that they will greatly prejudice the accused person in his defence…the questions could still be questioned from different angles…was the accused person lying inside a greenhouse structure belonging to him where the ivory pieces herein were found? Did he emerge from a small manyatta where the items herein were found? Between the greenhouse and the manyatta, where were the items herein recovered? Where did he possess them? Were they hidden? If yes, then where? Under the mattress in a small manyatta while covered with tea leaves or in a green house at a corner next to a mattress where he was lying? The inconsistency in the testimony may due to many reasons which are discussed below.
Case Study 15Case Details 2411/2014; Republic vs. Steven Kipngetich & Another;
Nyahururu Law CourtsParticulars of the offence
The accused were charged with possession and dealing of wildlife trophies, namely 20 pieces of elephant tusks, weighing 45kgs without a permit contrary to section 95 and section 84 (1) as read with section 92 of the WCMA 2013.
Outcome Guilty of possession; Acquitted for dealingComment Given the quantity of ivory that the accused were arrested with it is clear that they were looking for a
buyer. It is thus disappointing that the case for dealing could not be made but the limited definition of ‘dealer;’ to actual sale, purchase, barter…cutting, carving, preparing….transporting or conveying (sic)‘ means that the issue of quantity as relevant to intent to supply is not utilized as it should be.
January 2014 – May 2018 23
5. KEY CONCERNS LEGISLATIONThe existing WCMA 2013 still holds numerous errors that are
yet to be addressed. This plays out in court in the following
ways in particular:
● The use of s92 that called for a minimum of KES 20
million and/or life imprisonment is all but defunct given
the drafting errors within and an appeal court ruling in
201433. Accordingly, s95, a ‘catch all’ offence, is being used
that calls for lower penalties. Accordingly, the intention to
treat all endangered species offences in a consistent way
on sentencing, has been undermined leading to quite a
variation in the type of sentence applicable to elephant and
other endangered species cases.
● The approach of high minimum terms of imprisonment in
the WCMA has led to a predictable increase in ‘not guilty’
pleas compared to pre-2013. In court systems that are
already suffering with significant backlog, this compounds
the problem of delay and leaves little room for plea-
bargaining and incentivising cooperation in pursuing those
further up the criminal chain in return for a lesser sentence.
There simply isn’t an option.
● The definition of dealing in the current Act does not allow
for ‘possession with intent to supply’ but instead focuses
upon actual sale, purchase, barter, preparation or transport
of trophies. This limits its application to a rather simplistic
approach to ‘dealing’ with the result that a person who is in
possession of 20 pieces of elephant tusks34 is only convicted
of simple possession although the quantity alone is highly
relevant to the issue of his/her intent to supply.
● The definition of protected areas under the WCMA does
not cover conservancies of which there are many in the
region holding high wildlife populations. This may limit
prosecutors in their charging decisions in the region
resulting in a weak response to criminality concerning
wildlife in such areas.
● The FCMA 2016 provides for inadequate penalties for
sandalwood and other endangered tree species. With no
mention of CITES and no specific schedules identifying tree
33 Mutisya Kiema vs The Republic of Kenya, High Court Criminal Appeal 7 of 2014
34 Cr. 2411/2014 Republic vs. Steven Kipngetich & Another (Nyahururu Law Courts) ibid
species, there is much room for improvement. One solution
would be to fully incorporate the definition of such tree
species within the WCMA.
SELECTION OF CHARGES ● Selection of charges is still largely limited to the WCMA 2013
rather than the use of the ‘full-range of the law approach’ recommended by the NESC35 and the East Africa Legislative Assembly36. There is need to broaden investigations using controlled delivery methods where possible and building cases that bring down the criminal syndicates rather than charging the low-level perpetrators. This requires use of plea-bargaining and prosecution-guided investigations by all involved. This will ensure other key legislation connected to the wildlife offences are embraced in prosecution. These include legislation like Anti–Corruption and Economic Crimes Act (2010), Proceeds of Crime and Anti-Money Laundering Act (2009), Prevention of Organised Crime Act (2010), Tax Procedures Act (2015), Kenya Citizenship and Immigration Act (2011), East African Community Customs Management Act (2004) etc. There is probably a need for non-state actors to financially support specific efforts by investigative agencies in mounting investigative operations geared towards interrupting the organised crime syndicates behind these crimes.
INVESTIGATIONS• At a local level, based on our findings from North Central
Kenya, it is clear that there is little coordination between
the relevant law enforcement authorities. Confusion still
exists between the role of the KWS, KFS and the national
police service in an investigation with many cases still
being handed over by the KWS and KFS to the police
without sufficient pre-plea or pre-trial preparation. In
2017, the KWS issued a direction to its officers, re-affirming
their mandate to investigate wildlife offences; however,
this remains problematic. The problem begins with the
handover of suspects by the KWS or KFS to the detention
facility within local police stations. Whilst this does not
require handing over of an investigation file to the police,
this is what often happens. Ownership of an investigation
35 NESC press release Feb 1 2013
36 http://www.eala.org/uploads/21%20August%202013.pdf
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study24
by the KWS and KFS at a local level can be challenging
in dealing with the national police service. With most of
the national police being thus far left out of much of the
training and having a far wider mandate than wildlife
and forestry crime, such crimes do not always receive the
attention they deserve. ● It has been noted with concern that witness contact
details are still being recorded within the body of witness statements and then being disclosed to the defence. This is against the provisions of the SOP as it leads to inadvertent disclosure of the witness’ whereabouts to the accused or his accomplices and opens the door to the likelihood of compromise and intimidation of witnesses.
● Space for Giants’ monitoring of these cases has revealed that fingerprints are still not being taken for all wildlife crime suspects. Wildlife offences are no longer considered petty crimes hence the need to consistently take suspect fingerprints in every case. Space for Giants has drafted an amendment to police standing orders to specify wildlife crime offences as requiring this procedure. Though not strictly necessary, it is considered worthwhile drawing attention to such crimes as specifically requiring this practice within police standing orders. Further, the KWS Prosecution Unit37 has increasingly been ensuring that fingerprints are taken by the police.
TRIAL AND DELAY IN THE COURTS● Delay in the criminal court system has a significant
impact upon the justice system as a whole. In particular,
delay in the progress of a trial undermines and weakens
the prosecution case, increases the risk of witness
attrition, exposes witnesses repeatedly to risk of
intimidation and threat by requiring them to come to
court on multiple occasions, increases the opportunity
for defendants to corrupt the system, undermines public
confidence in the system and encourages victims to find
alternative methods of finding satisfaction for wrongs
done to them. Finally, it presents a tremendous waste
of limited public resources. From a defence point of
view, delay can be equally damaging for all of the same
reasons above particularly where a defendant may have
to remain in custody for the duration. In jurisdictions
where there are no custody time limits, this can add up
to an infringement of the rights of the accused.
37 KWS prosecution unit established in 2018 to progress cases to trial.
● The majority of adjournments are due to poor pre-trial
planning. Witness requirements, disclosure, attendance
of counsel and client, availability of exhibits, logistics
surrounding transport and legal arguments on evidence
that may be entirely foreseeable are not dealt with until
the trial has started and witnesses are waiting.
SENTENCING● It has been noted through watching brief that prosecution
counsel rarely makes submissions on the seriousness of an offence when it comes to sentencing. Undoubtedly this is in part due to the heavy caseload and inadequate time to prepare. Until prosecutors are sufficiently resourced to properly review their files, consider their submissions and prepare for trial, they will be limited in their ability to fully participate in the sentencing process. On occasions when a sentence is passed that is contrary to the legislation, prosecution counsel have been observed to stay silent at that exercise rather than diplomatically drawing the courts attention to the provisions in the law. The confusing message this sends to the public is compounded by the lack of any robust approach to appeal/review of such decisions.
● The Judicial approach to sentencing shows a tendency towards financial penalty rather than loss of liberty. This is due to the drafting of the 2013 Act and the option to give ‘either/or’.
CORRUPTION ● Whilst corruption is widely seen as the key facilitator of IWT
(and indeed, other forms of trafficking) it is telling that there have been no prosecutions for corruption involving public officials in the region within the sphere of wildlife crime. It is difficult to assess whether corruption in the context of trial is masquerading as incompetence and ‘honest mistake’ or whether there is in fact a lack of adequate training of investigators and witnesses to the extent that deficiencies in their case preparation leave them open to allegations of corruption when in fact there isn’t any.
● An example was found in the case of Republic vs Francis Mugo Mutegi (Cr. 132/15), where PW2, a KWS arresting officer denied making the 87 kgs weight markings on the tusks which contradicted the 93 kgs weight indicated in the charge sheet, witness statements and inventory. PW2 stated that it was the I.O, PW4 who marked the tusks. PW4 denied marking the tusks when he testified. Further, PW2 stated that they filled in the inventory at the scene of crime while
January 2014 – May 2018 25
PW3 stated that they filled in the inventory at the police station. All these glaring contradictions gave the benefit of doubt to the accused person who was then acquitted on what was otherwise a straightforward ‘possession’ case.
● It is not suggested that corruption is the only explanation for such discrepancies. Inadequate training or attention to detail may have been given to the issue of statement writing or exhibit handling. The opportunity for prosecutors to conduct an advance review in the case during which
discrepancies in the statements, inventory and charge sheet may have been identified and addressed through the obtaining of further statements or independent verification, may not have been availed. Changes in prosecution counsel throughout a trial means that no one ‘owns’ the case from start to finish – all of these may be valid explanations for these discrepancies not being addressed to the satisfaction of the court.
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study26
On a positive note, Space for Giants has observed the following
improvements taking place in the region including but not
limited to the following:
● Charge sheets in recent cases rarely require amendment. This is because the officers have now familiarised themselves with the Rapid Reference Guide and the WCMA 2013 and are well acquainted with the legislation. In a recent UNODC baseline survey on the use of the guidance in 2016, “a strong positive association of training in the RRG and improved quality of charge sheets”38 was found.
● Witness statements are increasingly detailed compared to 2014 cases.
● Recent cases are now including a “weighing certificate”. The certificate indicates the date, time and place of weighing, the weight of the trophies, what was recovered, who made the recovery and is signed by the arresting officers and the accused person. This has been observed to lend more weight in court.
● Inventories are now availed in every file for recent cases and are properly completed, unlike old cases that lacked inventories or were incomplete or erroneously compiled. Mentoring of KWS investigators by Space for Giants lawyers have assisted in this regard.
38 Evaluating a Wildlife Crime Training Intervention by UNODC, Guy Hammond, University of Colorado, Denver USA.
● KWS officers, especially in Laikipia Station, are ensuring that they make copies of the police file once plea is taken. This is crucial when a police file gets misplaced or is not availed in court on the hearing date, or an original document therein is misplaced. This can avoid unnecessary adjournments and may prevent corruption undermining the delivery of justice. This was most recently demonstrated in Cr. 302/16 where the exhibit memo in the police file was misplaced. The court allowed KWS to produce the copy they had made and for proceedings to continue. This is good practice and should be introduced as a formal directive from the headquarters of KWS and KFS.
● With the provisions of the Security Laws (Amendment) Act 2014, a guidance for which was drafted in the second edition of the Rapid Reference Guide, recently trained and gazetted Scene of Crime officers (SoC) within KWS are now taking and providing photographic evidence in almost every newly registered wildlife case. Kenya Gazette Notice 5819 indicates the names of 34 gazetted SoC officers. Space for Giants, in collaboration with UNODC, provided intensive training to these officers in August 2016 and December 2017. Further, an additional 30 (thus far ungazetted KWS officers) were trained in February 2018.
6. PROGRESS MADE IN NORTH CENTRAL KENYA
January 2014 – May 2018 27
This study of wildlife crime in North Central Kenya has
highlighted a number of strategic recommendations relevant
to improving the criminal justice process both regionally and
nationally. However, before presenting these it is important to
review progress made on previously made recommendations,
captured in a second nationwide survey39 of court outcomes
conducted by Wildlife Direct, and co-authored by the lead
author of this report in 2015. That report made a number
of recommendations at a national level focusing upon
prosecution, law enforcement and judicial reform – the
following observations can be made:
1. Government of Kenya (GoK) to create a national
investigative task force combining relevant law
enforcement agencies and experts to target
high-level traffickers and work closely with
international teams in the region to pursue
targets across borders. A hotline and rewards
programmes to be introduced.
At a local level, based on our findings from North Central
Kenya, it is clear that there is little coordination between the
relevant law enforcement authorities. As stated earlier in this
report, confusion still exists between the role of the KWS,
KFS and the national police service in an investigation with
many cases still being handed over by the KWS and KFS to the
police without sufficient pre-plea or pre-trial preparation At a
national level, there have been few prosecutions of ‘high level’
traffickers beyond that of Faisal Mohamed Ali whose conviction
as it stands is currently awaiting judgment on appeal.
Whilst Kenya may have the Lusaka Task Force Agreement
Interpol and greater dialogue occurring at a higher level, it
is yet to filter down to ground level. No hotline or rewards
programme has as of yet been established.
39 Outcome of Court Trials in the First Two Years of Implementation of the Wildlife Con-servation & Management Act, 2013. Available at https://wildlifedirect.org/wp-content/up-loads/2017/02/WildlifeDirect-Courtroom-Monitoring-Report-2014-2015.pdf
2. The ODPP to lead all investigations into major
wildlife trafficking cases to ensure that SOPs are
followed and guidelines of the RRG40 applied so
that all evidence gathered in the investigations is
admissible in court and has probative value.
In a recent study conducted by the UNODC41, supported by
Space for Giants, there appeared a failure to universally apply
the SOPs on inter-agency coordination. Investigations are
still left largely to the police and KWS with the ODPP lacking
resources to fully implement prosecution – led investigations
across the board.
3. ODPP to apply additional legislation such as the
Proceeds of Crime and Anti-Money Laundering
Act as well as the Prevention of Organised Crime
Act in proceedings against dealers and traffickers.
Not one case in North Central Kenya utilised ancillary
legislation such as the Prevention of Organised Crime Act or
money laundering legislation. One case did use the penal code
but there remains a gap at the local level in terms of utilising
laws that could lead to asset tracing, freezing and restraint.
4. ODPP anti-corruption team to initiate and lead
investigations of corruption within the police and
judicial system.
In North Central Kenya, there has not been a single prosecution
of any public officer or a member of the public related directly or
indirectly with corruption and wildlife trafficking. Corruption
is the main enabler of wildlife crime.42
40 See footnote 9
41 Evaluating a Wildlife Crime Training Intervention by United Nations Office of Drugs and
Crime, G Hammond, 30/11/16
42 https://www.cites.org/eng/news/sg/Links_between_corruption_wildlife_crime_highlighted_UN_anti-corruption_conference_06112017
7. IMPLEMENTATION OF PREVIOUS RECOMMENDATIONS
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study28
5. ODPP to train relevant police prosecutors who are
handling wildlife trials.
This recommendation is no longer applicable given that police
prosecutors have been progressively phased off and replaced
with legal counsel from ODPP. Similarly, the KWS has lost
its delegated power of prosecution and the passage of a new
FCMA 2016 omitted to allow prosecutorial powers for Kenya
Forestry Service. Space for Giants is working with the KWS
to create a prosecution unit that can support the ODPP with
strong in-house trial preparation, early review and prosecution
led investigations.
6. SOPs to be developed to guide both the NPS and
KWS to ensure that they work as one team with
good working relations when arresting offenders,
and in the handling/storage/ custody of evidence.
This will help avoid conflicts where overlapping
mandates exist.
This has not been developed and conflicts do arise as described
in point 1 above.
7. ODPP and Inspector General to work together
to ensure that incompetence within the police
force and prosecution of such crimes is addressed
directly and, if necessary, with appropriate
sanctions.
Whilst both agencies have complaint mechanisms, the
obtaining of such data is outside the scope of this report.
8. The Judiciary through the Office of the Chief
Justice to create a publicly available offenders list
and link all foreign nationals arrested in respect
or convicted of wildlife crime to the national ‘no-
flier’ list and circulate the same to all airlines
operating in the country.
Given that all defendants in this survey were Kenyan nationals,
this recommendation was not relevant to this survey. However,
it is known from discussions with national stakeholders that
this has not yet been implemented at any level.
9. The Office of the Chief Registrar of the Judiciary to
create a separate register for wildlife crime in the
court registry system to make it easier to access
these cases and minimize the rate of files getting
lost.
In the courts surveyed, no separate register existed.
10. Chief Justice to digitise court files in order to
identify repeat offenders and to improve case file
management.
With the support of development partners and donor
organisations, the judiciary is in the process of implementing
this recommendation. Our data shows that Kenya would
benefit from a national database of wildlife offenders though
there needs to be a clear distinction between information that
can be in the public domain and sensitive material. A case
in point is one Francis Mugo Mutegi charged at Nkubu Law
Courts Cr. 132/15 for possession of 93kgs of ivory as well as
at Meru Law Courts 446/16 for possession of 29.5kgs of ivory.
It was only through Space for Giants’ court monitoring efforts
that this was brought to light and the respective prosecution
lawyers informed.
11. Chief Justice to share the information from
digitised court files with other relevant agencies
in the region.
See point 10 above.
12. Chief Justice to give practice direction on
sentencing specific to wildlife crime to ensure
that sentences meted out are commensurate
with the gravity of the offence and are consistent
nationwide.
This recommendation has not been implemented. A sentencing
policy was issued in January 2016 but no progress has been
made in terms of offence-specific sentencing guidelines in
Kenya.
Goal 2.2. of the National Wildlife Strategy 2018 to 2030
January 2014 – May 2018 29
identifies the need to reduce poaching, over utilization and the
illegal wildlife trade and their related impacts. The activities
listed under this goal relate to enhancing the coordination
and capability of the security and law enforcement agencies
to reduce and improve responses to incidents of poaching,
illegal wildlife trade and to reduce wildlife related crimes. It
also recommends modernizing and expanding wildlife security
units to increase coordination and effectiveness.
With this in mind, and based on the observations made during
this study the following recommendations are made:
ON LEGISLATION1. Amend the WCMA 2013: At least two bills to amend
the WCMA have been put forward in recent months, neither
of which address fully the deficiencies in the 2013 Act.
It is recommended that the Ministry and KWS lead the
development and presentation of any such amendments
addressing, in particular, the deficiencies relating to offences
and penalties such as the high minimum terms, the failure to
distinguish between live species and trophies, the definition
of ‘trophy’ itself, use of investigative techniques such as
controlled delivery, mutual legal assistance and extradition,
the absence of offences such as poisoning and use of illegal
methods of hunting, correction of the applicable Schedules and
amendment of the Schedules themselves, to name a few. On
the penalty provisions, particular advice should be sought from
the ODPP on the drafting of such provisions. In particular,
the penalty under the legislation is the same for possession
and dealing – this needs amending to reflect the increased
criminality involved in commercial sale of illegal products.
2. Introduce ‘know your customer legislation’: North
Central Kenya would appear to be transit route through
the country to Nairobi and presumably onwards to Asian
destinations from Mombasa Port. ‘Know Your Customer’
legislation for ports, borders and customs authorities and
agents and brokers, much like banks and money laundering
frameworks, would be a more effective measure to address the
problems encountered at ports such as Mombasa, than frontline
detection methods alone. In discussions with the ODPP, it would
appear that most investigations stall after seizure due to an
inability to follow the consignment to its source. In the majority
of prosecutions, the focus still appears to be upon poachers and
dealers as opposed to those higher up the criminal network.
With little or no incentive for accused persons to cooperate with
authorities, one approach may be to shift the burden towards
agents and brokers in the same way that banks and other
financial institutions must now undertake procedures to verify
the identity of their clients and assess potential risks of illegal
intentions for the business relationship. This would be a huge
undertaking on the part of GoK but its ramifications would not
be limited to wildlife and forestry but would apply to all forms
of contraband that are moving in and out of the country. A
Taskforce should be established to assess the viability of such a
measure calling upon the AGO, the Asset Recovery Agency, the
ODPP, Customs, the Ports Authority and other key stakeholders
including the private and banking sector.
In the meantime, robust application of the existing East Africa
Community Customs and Management Act 2004 (EACCMA)
should be encouraged. The definition of ‘owner’ includes agents,
importers, exporters and consignees and s223 places the onus
to prove the origin of the goods or the lawfulness of importation,
exportation etc. upon the person prosecuted. However, KYC
legislation would vastly improve the prospects of a successful
prosecution in such cases. In the interim, user-friendly guidance
on the EACCMA would be helpful.
In addressing the existing gaps and loopholes in legislation,
this will inevitably assist law enforcement to meet the challenge
of wildlife crime across the country in a more holistic way. By
enabling the existing legislation to cater for more offences that
meet the full range of criminal activity at play, and extending
the range of ancillary powers, law enforcement, the ODPP and
the judiciary can thus be empowered to deploy measures that
not only deprive individuals of their liberty but also their assets.
8. NEW RECOMMENDATIONS 2018
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study30
ON INVESTIGATIONS1. Improve cooperation between NPS, KWS and KFS:
The National Police Service (NPS) has been thus far left out
of the majority of investigative trainings and sensitisation on
wildlife (and forestry) crime. Compared with offences involving
human victims, it is perhaps not surprising that such cases
are not always given the attention they deserve. The problem
stems from the point of handover from KWS (or KFS) to the
police, usually following arrest as a place of detention prior to
first appearance at court, is sought. In the absence of gazetted
detention wings within KWS or KFS offices, there are clear
recommendations to be made:-
ODPP-issued guidance, based on the bail and bond policy,
would be of immense help to KWS and KFS arresting
officers in considering whether detention is necessary
pending investigation or whether a suspect can be given
police bail. In the case of latter where the suspect is not a
bail risk, investigations can be more easily kept in-house
whilst a case is built.
Training of national police on wildlife crime investigations
and the mandate of KWS and KFS. This should be focused
upon poaching ‘hotspot’ areas if not otherwise incorporated
– in more detail than currently exists – within the police
training curriculum.
Police to issue standing orders recommending the
prioritisation of wildlife crime as well as direction as to
what to do upon receipt of a file from KWS (or other agency)
would also help to alleviate the conflicts between agencies
regarding investigation mandates
Support – at local levels – for interagency dialogue on this
issue, targeting priority police stations that ‘feed’ certain
courts e.g. Nyahururu and Nanyuki and bringing together
the relevant investigative agencies on a regular basis.
Compilation of duplicate files as a matter of standard
practice within KWS and KFS. Where suspects are detained
in a police station, any statements taken should be copied
(or photographed) by KWS /KFS officers in order for a
duplicate file to be compiled. This will mitigate the risk of
adjournments bought about by lost/missing files.
2. Improve/increase exhibit store rooms: It has also been
raised at KWS level that often exhibit store rooms are either
limited in space, insecure or not available at police stations.
Delivery of exhibit strong rooms at priority KWS stations can
mitigate the problem of exhibits not making their way to court.
3. Improve forensic capacity: Likewise, on forensic analysis
which can be a source of delay in the courts with all analysis
being conducted in Nairobi, there is a need for more forensic
kits (sealable bags and cooler boxes for storage for example)
and the cost of transportation to Nairobi could be alleviated
through discussions with private airlines that make the trip
frequently from more remote areas into Nairobi. However, first
and foremost, there is a need for sufficient budget allocation
towards the issue of transport and logistics so that officers and
their evidence can get to court when required.
4. Accelerate gazettement of trained KWS (and KFS)
scenes of crime officers before their learning becomes
stale. Further SoC training for rangers, and investigators is an
ongoing requirement. Particular emphasis needs to be placed
on maintaining accurate inventories and exhibit continuity.
5. Training of frontline protection officers/rangers on
their role in the criminal justice system. Such officers are
often the first on the scene, the first to arrest and the first to hear
‘verbals’ from accused persons. Much of the existing training of
such units, not just in Kenya but across the continent, tends
to place more emphasis on discipline, weapons handling and
tactical operations. In a pilot conducted by Space for Giants in
December 2017, a human rights and lawful use of force module
was delivered to those engaged in frontline protection. It was
obvious that few had a clear understanding of how significant
was their role in the criminal justice pathway. Few had ever
written a statement concerning what they had witnessed or
heard and there was a lack of understanding of alternative
charges such as assault, threats to kill and threatening words
and behavior, criminality that most rangers sadly faced on a
regular basis. Accordingly, their ability to inform the decision
on charge was limited and their capacity to respond to such
incidents in a way that would deter further offending is not
fully exploited.
January 2014 – May 2018 31
6. Training of prosecutors and investigators on
converting intelligence pictures into admissible
evidence. There is also an increasing reliance on intelligence
pictures generated via vetted units or those within government
agencies that can mean an efficient and cost-effective deployment
of resources. However, the interplay between the intelligence
picture and the evidential picture is often unfocussed and can
be misunderstood, with prosecutions falling down partly due
to a failure to secure an evidential format for the intelligence
package. Much of this can be resolved through improved (and
earlier) coordination between investigations and prosecutions
and specific training on intelligence vs evidence. However, there
may also be concerns by intelligence agencies regarding their
police and prosecution counterparts and the security clearance
of those individuals. Vetting may be a powerful way to address
those concerns and send out a strong anti-corruption message.
Intelligence led investigations and prosecutions can be an
effective way of pursuing high profile suspects.
ON PROSECUTION1. Support to the ODPP to roll out a centralized case
in-take mechanism involving the use of the code for
charging and practice of written reviews on all criminal cases
is required. It is clear that the application of written reviews
is inconsistent, making quality assurance of decisions difficult
and contributing to an environment in which corruption and/
or mistakes can be easily hidden. With prosecutors in the
region in court nearly every single day, there is often no one
in the county or sub-county offices to review existing files and
ensure trial readiness. It is with this in mind that Space for
Giants, in a MoU with KWS, are supporting and mentoring
the in-house prosecution unit to ensure a prosecution led
approach to investigations internally and ensure that trial
files are prepared to a high standard, thereby alleviating some
of the pressures that face ODPP prosecutors who face a busy
court list. At present, prosecutors rarely have adequate time
and facilities to undertake necessary file reviews, leading to
realizing errors in a file when it is too late. This includes errors
in charge sheets, witness statements, incomplete police files,
etc. Part of the problem is their access to laws and procedures
– few carried laptops to court and so modernizing the way in
which they conduct day to day business through enhanced use
of technology is key. The institutionalization of documenting
decisions to charge and case reviews at the ODPP in a
centralized case in-take mechanism needs to be supported –
despite the remarkable poise exhibited by prosecutors facing
a 24- trial listing, their time in court could be put to more
productive use.43
2. Development of a comprehensive wildlife crime
training curriculum for the Prosecution Training Institute.
This will entirely complement the KWS prosecution unit which
is currently working at leading investigations, preparing trial
files to a high standard, internalising the code for charging and
making recommendations on bail and acceptability of plea.
This could in turn feed into Strategy 6.3 of the National Wildlife
Strategy which recommends the development of a curriculum
for universities to build the next generation of conservation
leaders. Understanding the criminality of this trade and the
criminal justice framework that has arisen to meet it would be
a valuable component.
3. Promoting and supporting more prosecution-led
investigations can also mitigate risks of corruption as well
identifying honest mistakes that can undermine a trial by putting
two agencies or ‘functions’ at the heart of case progression
instead of just one. Supporting the role of Court User Committees
to bring the relevant agencies together is one possible option;
however, the practical limitations of early engagement between
prosecutor and investigator cannot be overlooked. “Trigger
points” for early engagement have been incorporated into SOPs
on this topic but require the ODPP to actively steer and sensitize
investigators on their implementation.
4. Reinstate delegated powers of prosecution to
KWS and KFS: Delegated powers of prosecution are, for
now, removed from KWS and KFS. It was the case that such
delegated powers were limited to one statute alone. With the
call for prosecutors to use the full range of prosecution powers,
it would be curious to then limit KWS (or KFS) to their one
law. One solution would be to allow delegated powers in full
in relation to prosecutions under laws specific to that unit e.g.
the WCMA 2013 with conditional powers of prosecution under
other statute subject to ODPP agreement and/or supervision.
If delegated powers of prosecution are reinstated, it is essential
that the following are adopted:
43 Author’s own observation at Nanyuki Law Courts in July 2017
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study32
The code for charging must be absorbed by agencies with
delegated powers. KWS have adopted the national charging
standard within its ‘code of conduct’ aimed at prosecutors
and is undertaking written reviews in line with that
standard. Training on the application of this standard and
agreement to provide written reviews on all cases should be
a prerequisite for gazetted powers.
The plea bargaining policy needs to also be absorbed by
such units. Despite the high minimum penalties in the
WCMA 2013, consideration needs to given at an early stage
as to acceptability of alternative pleas, the use of controlled
delivery and enhancing incentives to accused person to
cooperate in investigations.
Mentoring is key for such units given the transformation of
ODPP policy and practice in recent years in order to ensure
consistency of approach.
5. Mentoring of prosecutors, whether ODPP or KWS
or KFS is key. Given the pressures on the ODPP in terms
of caseload and prosecutor numbers, mentorship from
experienced trial lawyers from the private Bar or approved
organisations would be advantageous. This can take the form
of face-to-face mentoring, remote mentoring or office-based
round-tables that are already in play between Space for Giants
and KWS. Discretion and confidentiality agreements are vital
as these are national authorities. Focus should be upon early
review, ancillary orders and use of alternative legislation and
powers such as asset tracing, seizure and forfeiture, cybercrime
offences44 and the role of other agencies such as the asset
recovery agency which is also developing its capacity to assist
investigations and recovery in this field.
6. Building understanding of mutual legal assistance
procedures for priority destination, transit and
originating countries. Whilst Mutual Legal Assistance did
not rear its head in North Central, building awareness of the
procedures amongst both investigators and prosecutors alike
is highly desirous. In 2018, the Office of the Attorney General
issued guidance on MLA45 requests aimed at foreign jurisdictions
seeking MLA from Kenya. Building guidance on MLA requests
moving from Kenya TO other countries, prioritizing countries
44 See s21 of the Computer and Cyber Crimes Act 2017
45 This was initiated by the British High Commission in 2015 in collaboration with the ODPP, police and other national stakeholders.
identified as particularly active in IWT, would be a useful
addition to any prosecution training curriculum. E.g. Tanzania,
Uganda, Thailand, Vietnam and others.
ON TRIAL AND SENTENCING1. Prioritise wildlife and forestry court ‘hotspots’
in the national rollout of Active Case Management:
The intention to roll out the ACM pilot across Kenya is
commendable and should be supported from all quarters.
The former head of the JTI, the Honourable Joel Ngugi said
that this pilot would be the one initiative that could have the
biggest impact upon delay in the Kenyan courts. The former
DPP supported this initiative and indeed the ODPP were part
and parcel of the steering committee that engineered the
pilot as was the Law Society. The judicially led approach that
epitomises ACM does not rely directly upon technological
interventions but instead represents a shift in culture and
attitudes to the issue of adjournments and the role that each
stakeholder plays in the administration of justice. Given the
request of the current Chief Justice and the current head of
the JTI, there is an opportunity now to administer this pilot
nationwide through a carefully managed project that builds
on the lessons learned from the existing pilot and administers
this initiative in way that can demonstrate success to the
benefit of the Kenyan people.46 With cases in the region taking,
on average, 20 months to conclude for allegations even of
simple ‘possession’, this needs urgent attention through the
implementation of pre-trial conferences as per the guidelines,
particularly in Nanyuki and Nyahururu courts.
2. Increase use of “trial in absentia”: The Constitution
allows for trial in absentia under Article 50(2)(f). Whilst this
power should be exercised cautiously, there is need for a more
robust approach where the conduct of an accused person makes
it impossible for a trial to proceed.
3. Digitizing the recording of court proceedings would
also help immensely, ending the practice of handwritten notes
that contribute not only to slow progression of cases but can
create problems where illegible handwriting make judgment
46 Now adopted as part of an 18million USD grant to UNODC from the EU
January 2014 – May 2018 33
and appeal difficult particularly when more than one magistrate
handles a case.
4. Review of performance management targets. Some
thought must be given to the relatively recent introduction of
performance management targets. In listing 24 trials in one
day, in one court room, five of which involved sexual offences,
one of which involved a child47, it may be that such targets are,
in some cases, proving counter-productive to the interests
of justice and places the small number of prosecutors under
immense strain.
5. Development of offence-specific sentencing
guidelines: Offence-specific guidelines should be created for
wildlife and forestry offences. This could be done as part of a
pilot, taking into account other priority areas for the judiciary
such as robbery with violence and sexual offences. In Uganda,
Space for Giants initiated and developed similar guidelines
with the judiciary, due to be approved at the time of writing and
a first for the continent. This was part of a package of guidelines
for all magistrates court offences. A similar initiative could
be developed in Kenya, building upon the sentencing policy
already in place.
6. Ongoing training and sensitization of criminal
justice stakeholders: Space for Giants has invested significant
resources in improving sentencing by supporting the ODPP to
mount targeted trainings in the region: hosting three training
workshops between July–September 2016 attended by 75
participants from the region (judges, magistrates, prosecutors,
47 Author’s own observation at Nanyuki Law Courts in July 2017
investigators) to sensitise actors involved in the criminal
trial process on the impact of transnational organised crime,
experiences of prosecuting wildlife crime and tools available to
support decision making. Space for Giants followed up these
trainings with a further three workshops between July and
November 2017 for an additional 70 participants. All trainings
were hosted in collaboration with the ODPP and with support
from the Judicial Training Institute (JTI) and UNODC. Feedback
from participants suggests these trainings need to be intensified.
7. A database of wildlife offenders is necessary (in fact,
this applies to nearly all criminal offenders) in order that
recidivists can be properly sentenced and that magistrates
handling bail applications from those facing multiple charges
can make a well-informed decision.
8. Continued Court monitoring can be a very good
support mechanism provided it is done sensitively and with a
good understanding of both law society standards of ethics and
the need to report sensitively on live cases. Discretion on any
support is key. It is important that any reporting does not derail
a criminal case through inadvertent disclosure of sensitive
material and does not contravene a jurisdictions media laws on
live reporting. As an effective measure, in Malawi for example,
during a project period of one year, in cases where no courtroom
monitors (or private prosecutor) was deployed, conviction rates
fell dramatically and the custodial rate was zero. In cases where
court room monitors did attend, conviction and custodial rates
were at 94% and 84% respectively.48
48 A review of wildlife crime court cases in Malawi 2010 to 2018, produced on behalf of the National Parks and Wildlife Department, Malawi – authors Victoria May, Laure Barthau, Susan Lukhere, Bertha Chipanda and Jonathan Vaughan.
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study34
9. CONCLUSIONKenya has come a long way since the passage of the WCMA
2013. The survey conducted by UNODC in 2016 regarding the
use of the Rapid Reference Guide and SOPs, and ongoing court
monitoring provide a useful marker on the implementation
of initiatives that consume considerable resources in their
development. As this report demonstrates, implementation in
this region remains mixed across the three pillars of the criminal
justice system namely strong prosecutions, trial without delay
and proportionate and consistent sentencing. It is clear that
the prosecution and judicial response is strengthening but the
systems underpinning success remain fragile.
Kenya is moving forward on ambitious reform in its police,
prosecution and judicial institutions. However, time is not
on the side of the GoK in relation the impact of wildlife
and forestry crime upon the bio-diversity of which Kenya is
rightly, so proud. With the exception of the recommendation
regarding the taskforce for a “Know Your Customer” response
to the international aspect of trafficking, the majority of the
recommendations can be implemented (or as with ACM, are
being implemented) in a relatively short space of time. What
is needed is an approach that demands measurable impact
that in turn requires investment in ongoing monitoring and
mentoring of the key stakeholders. The time has long passed
whereby ‘satellite training’ of prosecutors and judges and
investigators can be expected to deliver results on the ground
when the systems in which those individuals work, remain
unchanged. It is clear that in North Central Kenya resources
need to be focused upon this region given its strategic
importance in conservation.
The recommendations in this report have application both on
a regional level and nationally. It is hoped that development
partners, government and NGOs can work together to achieve
the desired aim of making Kenya’s justice system a visible and
strong deterrent to those that would illegally exploit her natural
heritage for personal gain.
January 2014 – May 2018 35
10. APPENDIXDATABASE OF CASES IN NORTH CENTRAL KENYA 2014 – 2018
No. Case No. Court Station
Species No. of Trophies
Weight (Kg) Status Comment
20141 864/14 Nanyuki Elephant 8 43 Concluded N/A2 1146/14 Nanyuki Elephant 2 4.5 Ongoing N/A3 39/14 Nyeri Elephant 7 5 Concluded N/A4 421/14 Nyeri Elephant 2 5.5 Concluded N/A5 740/14 Nyeri Elephant 2 5 Concluded N/A6 672/14 Nyahururu Elephant 1 5 Ongoing N/A7 1070/14 Nyahururu Elephant N/A N/A Ongoing N/A8 3044/14 Nyahururu Elephant 2 42 Ongoing N/A9 2411/14 Nyahururu Elephant 20 45 Concluded N/A10 1939/14 Meru Elephant 2 9.5 Concluded N/A11 33/14 Karatina Elephant 2 5 Ongoing N/A12 62/14 Isiolo Elephant 1 1.5 Concluded N/A13 159/14 Isiolo Elephant 1 N/A Concluded N/A14 262/14 Isiolo Elephant 4 N/A Ongoing N/A15 307/14 Isiolo Elephant N/A N/A N/A N/A16 380/14 Isiolo Elephant N/A N/A Concluded N/A17 572/14 Isiolo Elephant 2 15 Concluded N/A18 882/14 Nyeri Rhino 2 6.45 Ongoing N/A
19 701/14 Nanyuki Rhino & Elephant 1 0.5 Rhino 0.25
Ivory Concluded N/A
201520 1159/15 Nyeri Elephant 2 0.6 Concluded N/A21 1444/15 Nyahururu Elephant 2 6 Concluded N/A22 1200/15 Nyahururu Elephant 6 N/A Ongoing N/A23 2024/15 Nyahururu Elephant 1 18 Ongoing N/A24 983/15 Meru Elephant 2 0.5 Ongoing N/A25 132/15 Nkubu Elephant 2 93 Concluded N/A26 617/15 Karatina Elephant 2 N/A Concluded N/A27 176/15 Isiolo Elephant N/A 4 Concluded N/A28 464/15 Isiolo Elephant 3 4 Concluded N/A29 515/15 Isiolo Elephant 8 22 Concluded N/A30 99/15 Nanyuki Elephant 2 5 Ongoing N/A31 399/15 Nanyuki Elephant 4 42.5 Concluded N/A32 1403/15 Nanyuki Elephant 2 7 Concluded N/A33 3756/15 Nyahururu Sandalwood N/A N/A Ongoing N/A
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study36
No. Case No. Court Station
Species No. of Trophies
Weight (Kg) Status Comment
201634 79/16 Nanyuki Elephant 1 3 Ongoing N/A35 285/16 Nanyuki Elephant 3 8 Ongoing 1 giraffe horn36 638/16 Nanyuki Elephant 3 11 Ongoing 1 python skin37 174/16 Nyeri Elephant 3 16 Concluded N/A38 641/16 Nyeri Elephant 2 8.4 Ongoing N/A39 608/16 Nyahururu Elephant N/A N/A Concluded N/A40 1137/16 Nyahururu Elephant 4 10 Concluded N/A41 1491/16 Nyahururu Elephant 1 3 Ongoing N/A42 2327/16 Nyahururu Elephant N/A N/A Ongoing N/A43 446/16 Meru Elephant 2 29.5 Ongoing N/A
44 1922/16 Meru Elephant 9 22 Ongoing 1 elephant bone
45 205/16 Karatina Elephant 4 8.7 Concluded N/A46 106/16 Isiolo Elephant 1 6 Concluded N/A47 595/16 Isiolo Sandalwood N/A 3500 Concluded N/A48 1051/16 Nanyuki Sandalwood N/A 2000 Ongoing N/A49 14/16 Nyahururu Sandalwood N/A N/A Concluded N/A50 122/16 Nyahururu Sandalwood N/A 14000 Ongoing N/A51 302/16 Nanyuki Rhino 1 0.085 Ongoing N/A52 232/16 Nanyuki Rhino 2 N/A Ongoing N/A
201753 305/17 Nyahururu Elephant 1 1 Ongoing N/A54 947/17 Nyahururu Elephant 2 7.5 Ongoing N/A55 1533/17 Nyahururu Elephant 10 N/A Ongoing N/A56 2158/17 Nyahururu Elephant 5 N/A Ongoing N/A57 1442/17 Nyahururu Elephant N/A N/A Ongoing N/A58 1804/17 Nyahururu Elephant N/A N/A Ongoing N/A59 344/17 Meru Elephant 4 50 Ongoing N/A60 1132/17 Meru Elephant 2 9 Ongoing N/A61 189/17 Chuka Elephant 5 15 Ongoing N/A
62 973/17 Chuka Elephant 14 58 Ongoing elephant bones
63 326/17 Runyenjes Elephant 4 26 Ongoing N/A64 56/17 Karaba Elephant 4 N/A Ongoing N/A65 30/17 Nanyuki Sandalwood N/A 3000 Ongoing N/A66 643/17 Nanyuki Sandalwood N/A N/A Ongoing N/A67 1066/17 Nyahururu Sandalwood 10 3 Ongoing N/A
January 2014 – May 2018 37
No. Case No. Court Station
Species No. of Trophies
Weight (Kg) Status Comment
201868 327/18 Nyahururu Elephant 2 4.5 Ongoing N/A69 458/18 Nyahururu Elephant 1 5 Ongoing N/A70 347/18 Nanyuki Elephant 1 N/A Ongoing N/A71 187/18 Meru Elephant 3 N/A Ongoing N/A72 423/18 Meru Elephant 4 15.1 Ongoing N/A73 762/18 Meru Elephant N/A 20 Ongoing N/A74 785/18 Meru Elephant N/A N/A Ongoing N/A75 477/18 Isiolo Elephant 7 30 Concluded N/A
Analysis of Prosecutions of Ivory, Rhino Horn and Sandalwood Crime in North Central Kenya – A Case Study38
notes
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