Court asked to allow KWS to detain suspects in rhino trophies trafficking

The Kenya Wildlife Service (KWS) on Thursday asked the court to allow its investigators to hold Feiswal Mohamed Ali and Mohammed Hassan Kontoma for 10 days to probe their alleged link to international organised poaching in the country.

KWS, in its application, argued that the Director of Public Prosecution (DPP) on Thursday said that the complexity of the wildlife crimes and cross-border linkages requires the investigators to burn the midnight oil to know who the consumers of the trophy and other players are who are involved.

“We need to package the evidence in a manner that is palatable to the court. We also have to cross-check the information the investigators have and what is beyond our borders,” argued State prosecutor Allen Mulama.

Mulama, before Jomo Kenyatta International Airport, magistrate Njeri Thuku argued that the investigators will also be looking into the financial dealings of Mohamed and Hassan.

 He stated that Mohamed had a questionable past as he had vanished from the country while he was engaged in another case.

“The respondent was arrested in Tanzania having fled the jurisdiction at the Mombasa Law Court,” argued Mulama, adding that the Court of Appeal unanimously agreed that in instances where a person is known to be a flight risk, he or she ought not to be released.”

“We are apprehensive that, given a chance, the respondent will take flight,” argued Mulama.

He asserted that the probe involving two Rhino ivories valued at sh 10 million attracts a sentence that would have them think of absconding from court.

The court also heard that one of the star witnesses in the case is well known to the two.

“These two should not be released based on witness interference. Going by the totality of what we have demonstrated at this stage, we have probable charges being trafficking wildlife trophies. We have told the court what we intend to do in the 10 days, and therefore we have met the requirement to have them denied the right to liberty,” he continued.

KWS’s investigator, Anthony Mbau, said that the 68-year-old Mohamed and the 75-year-old Hassan are believed to be kingpins in a sophisticated transnational ivory smuggling syndicate.

In response, their lawyer Shamsa Gathoni Ibrahim admitted that the claims are serious but asserted that even those accused of other serious crimes, such as murder, are entitled to bail.

She said that the charges that are likely to be pressed carry seven years.

However, she said, detention of her clients without a charge, whether provisional charge or otherwise, ought to be discouraged.

“The affidavit before you contains a lot of half-truths. You have been told that the first respondent had been convicted. While it is true that the first respondent was convicted in the magistrate's court, that conviction and the sentence were quashed by the High Court. As we speak, it must be clear for all intents and purposes, the first respondent is not convicted. For the sake of sensationalism, they chose to leave that out, and that amounts to material non-disclosure,” argued Gathoni.

On the claim of an international red notice, she said that the same was not about the current case, adding that there is nothing before the court to show there was a warrant of arrest.

“The affidavit is as bare as it comes,” the lawyer replied.

Gathoni said that the DPP was talking about the past without disclosing the weighty evidence.

She further stated that the State had ample time to gather the evidence since KWS had intimated that the two were arrested following surveillance for some time.

The lawyer also denied that her client was arrested in Tanzania. “ You are being asked to make a judgment against the respondents on facts that are unproven, a conviction that was quashed and facts that are yet to be proved,” she argued, adding that he was whisked away from Mombasa.

Gathoni urged the court to release the two on bail on terms that the court would give.

“They can deposit passports, regularly report to the police and a caution that they should not contact any witnesses. All that the State wants to do can be done without them being in remand,” argued Gathoni.    

In a rejoinder, Mulama said that the State did not have the 2014 warrant of arrest as it had expired following Mohamed’s arrest and being charged.

He also said that Mohamed had claimed the same issue of being unwell, but the court ruled that the State could take care of him.

“ This constitution applies to every person. They were arrested at 12 noon and were flown to Nairobi. They were not bundled. The State treated them with dignity,” he said.

The court will decide on their fate on Friday.