analysis of prosecutions of ivory, rhino horn and

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


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


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.


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.


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.



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/


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


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%


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


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


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


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.


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


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


95 as read with 92

WCMA 2013 1 0 0 0 1


95 as read with 92

WCMA 2013 1 0 0 0 1


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%



Other charges

Unknown


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


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


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


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


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%


Case Study 12

Case Details 380/2014; Republic vs. Christopher Lenekai, Simirai Lengosungi and LaudiLesibi; Isiolo Law Courts


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.


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


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.


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.


Case Study 14

Case Details 1212/2015; Republic vs. Daniel Palion Mukoondo; Nyahururu Law Courts


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


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.


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


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


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


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.


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





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




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


notes

January 2014 – May 2018 39

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