August 7, 2018
Philip Muyanga, The Daily Nation
See link for photo.
The Director of Public Prosecutions (DPP) Noordin Haji has filed a notice of appeal following a decision quashing a 20-year jail term imposed on businessman Feisal Ali Mohammed who had been convicted of possessing ivory valued at Sh44 million.
Through prosecutor Jami Yamina, the DPP said he was aggrieved and dissatisfied with the decision of Justice Dora Chepkwony who had termed the sentence imposed on Mr Mohammed as unconstitutional.
“Take notice that the DPP being aggrieved, appeals to the Court of Appeal against the whole decision of Justice Chepkwony,” the notice.
Justice Chepkwony noted that the sentence was severe and that the prosecution failed to prove that Mr Mohammed was the owner of the ivory or was engaged in trafficking the trophies.
The judge also threw out a cross appeal which had been filed by the DPP seeking to overturn the acquittal of four other people who had been charged alongside Mr Ali and enhancement of the 20-year jail sentence.
“The sentence that was imposed by the trial court on July 22, 2016 was unconstitutional and therefore the same is set aside. I find the appellant’s (Ali) appeal has merit, allow the same and proceed to quash the conviction and set aside the sentence against the appellant. He is hereby set at liberty unless lawfully held,” said Justice Chepkwony.
She noted that under the Constitution, if the appellant was found guilty he would have been fined Sh1 million or serve a minimum of one-year imprisonment, and if the court properly applied the law in exercising its discretional powers in sentencing him, the appellant should have now served two years’ imprisonment.
The judge said the prosecution case against the appellant was weak with scattered pieces of evidence strewn all over and disagreed with the findings of Senior Principal Magistrate Diana Mochache that the pieces of evidence when all combined pointed to the guilt of Mr Ali.
In her judgment two years ago, the magistrate stated, “I have considered the prosecution evidence as it is manifestly clear that a combination of chain of events when considered as a whole point irresistibly at the accused person as the owner of the recovered ivory.”
Justice Chepkwony disagreed with the magistrate’s findings and consequent conviction of the appellant on account of circumstantial evidence which, according to her, was not proved and did not point to Mr Mohammed’s guilt.
Burden of Proof
“In view of what I have pointed out, I have come to the conclusion that the prosecution failed to discharge its burden of proof against the appellant as required by law; there are so many doubts that were raised by their evidence,” said Justice Chepkwony.
“I therefore find that the offence of being in possession of wildlife trophies was not proved against the appellant, there was no evidence of any ornament having been recovered from the scene or the manufacture of any such thing found at the crime scene,” she added.
The judge noted that the motor vehicle said to have been hired by the appellant to transport the ivory, on further analysis of evidence, proved not to have been the alleged vehicle as the registration numbers and the make were different.
She said the prosecution failed to call registered owners of the motor vehicles allegedly used in the transportation of the ivory and this further punctured their case.
“A lot of issues were left out and this created doubt on the prosecution’s evidence. For instance, failure by the prosecution to call the watchmen, two Asians and a cleaner who were at the premise where the recovery was made left a loose end in the case making it difficult to ascertain ownership of the ivory,” she said.
She said failure by the prosecution to provide details of the content of phone conversations between Mr Mohammed and his co-accused, who were acquitted, also weakened the case since the court would have known if the conversations had something to do with the alleged crime.
Mr Ali was charged together with Abdul Halim Sadiq, Mr Ghalib Sadiq Kara, Mr Praverz Noor Mohamed and Mr Abdulmajeed Ibrahim who had been acquitted for lack of evidence.
Ms Mochache had jailed Mr Mohamed and in addition imposed a Sh20 million fine on him after he was found guilty of committing the offence on June 5, 2014 at the business premises of Fuji Motors East Africa Limited along Tom Mboya Avenue, Tudor Estate in Mombasa.
They were had been charged with being in possession of 314 pieces of ivory weighing 2,152 kilogrammes.