ALL-KENYAN MOOT COURT COMPETITION

Transcription

1 COMPROMIS FOR THE 4 TH EDITION OF THE ALL-KENYAN MOOT COURT COMPETITION (AKMCC), (APPELLATE CATEGORY) 1

2 THE 4 TH ALL - KENYAN MOOT COURT COMPETITION (AKMCC) 26 TH AND 27 TH FEBRUARY 2016 KENYATTA UNIVERSITY SCHOOL OF LAW (KUSOL) AND THE UNITED NATIONS ENVIRONMENT PROGRAMME (UNEP) HYPOTHETICAL CASE IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL APPEAL NO 2015IWT IN THE MATTER BETWEEN Simon Makontet 1 st Appellant Kaluma Blam 2 nd Appellant Rinda Timau 3 rd Appellant Alkonen Vitere 4 th Appellant AND The Republic of Kenya...Respondent 2

3 1. This is an appeal against the conviction and sentence of the Appellants by the Nanyuki Chief Magistrates Court in Nanyuki Chief Magistrate Criminal Case No. 144A of The Appellants had been charged under the Wildlife Conservation and Management Act, No. 47 of 2013 (WCMA ) with three Counts of offences, namely: Count 1: Being in possession of game trophies without a permit contrary to Section 95 of the WCMA; Count 2: Dealing in game trophy without a permit contrary to Section 84 as read with Section 92 of the WCMA; and Count 3: Unlawfully killing a wild animal contrary to Section 78 of the WCMA. The Appellants were convicted and sentenced in all three counts. EVIDENCE LED IN THE TRIAL COURT 3. On 9 th January 2014, a white rhino resident in the Aberdares National Park ( the Park ) in Nanyuki in the Central Region of Kenya was found dead from gunshot wounds at a farm known as Den Hague, which lies adjacent to the Park. Following information received by the Investigating Officer, Mr Hifadhi Pori ("Pori"), who is in the employ of the Kenya Wildlife Service ( KWS ) in the Environmental Crime Investigation Unit, the Appellants were arrested and kept in police custody. APPELLANTS CASE 4. All the appellants gave viva voce evidence on oath. The 1 st Appellant testified to the effect that he is a Kenyan Citizen aged 64 years old and lives in Absolute Ranch near a farm known as Den Hague in Nanyuki County of the Republic of Kenya. He further indicated that he is an old age pensioner, married with five (5) children and that his wife is employed 3

4 as a teacher. He holds no passport. He makes additional income of about Kshs 25, per month by selling clothes. He has no relatives outside the borders of Kenya. He has no previous convictions. He denies commission of the alleged offences. 5. Kaluma Blam the second appellant is a citizen of Mozambique married to a Kenyan. Together with his wife, they run a tourist resort in Nanyuki town. He holds a bank account with standard chartered bank Nanyuki and another (Standard Chartered Bank) in Maputo, Mozambique. He has no previous convictions and denies commission of the alleged offence. 6. Rinda Timau, the third appellant, resides in a farm popularly known as Den Hague in Nanyuki. He is married and has 3 children. One of his children (Alkonen Vitere) lives with him. The other 2 live in Netherlands. He and his son (Alkonen) are pig and fish farmers. He has no previous convictions and denies commission of the alleged offence. 7. Alkonen Vitere, the fourth appellant is Timau s son living at the Den Hague farm in Nanyuki. He is a pig farmer and also manages a number of fish ponds in the farm. He has no previous convictions and denies commission of the alleged offence. STATE EVIDENCE 8. On behalf of the State, Pori testified that on the 8 th of January 2014 he received information from a ranger at the Park that a satellite collar of a rhino was found next to the road. On the 9 th of January 2014 the ranger informed him further that a carcass of a white rhino was found on the farm commonly known as Den Hague. Apparently the rhino had a few days earlier moved out of the Park to Den Hague but was captured and brought back to the Park. 9. Pori visited the crime scene in Den Hague farm. He observed that two shots had been fired under the left ear of the rhino. He then conducted a post mortem on the animal where he 4

5 found two projectiles in the brain cavity of the animal. The animal s horns were also missing. 10. A rhino photo was sent by Pori s informer on a mobile phone. He conducted investigations and with assistance from the Kenya Police Service ( KPS ) Crime Intelligence Unit, the phone was traced to a person named Mr Simon Makontet (the 1 st Appellant in this appeal). The 1 st Appellant was on the KPS system because he was once in June 2013 arrested with seven (7) other accused on a charge of illegal possession of a hunting rifle. 11. Pori further established that the 1 st Appellant s residential address was in the Absolute Ranch adjacent to a farm known as Den Hague in Nanyuki County of the Republic of Kenya. He (Pori) and members of the Organized Crime Unit of the KPS then set up and authorized a trap. The undercover operation agents offered the 1 st Appellant a rhino horn for sale. The Appellant offered one of the agents between Kshs. 700,000 and for one kilogram of rhino horns. The undercover operation was conducted on the 11 th of January The 1 st Appellant was subsequently arrested. His house at the Absolute Ranch was searched and an illegal hunting rifle was found hidden in the ceiling of his garage. Ammunition and a "weighing scale" were also confiscated. 12. Upon questioning, the 1 st Appellant revealed that he had received two rhino horns the previous week from Meru. He also intimated to Pori that he had received the hunting rifle found in his house from one Tausi who lives in Nanyuki town. The 1 st Appellant was willing to point out the said Tausi. In the company of Pori and his colleagues, the 1 st Appellant took them to Nanyuki town where it later emerged that Tausi knew nothing about the firearm. 13. In informal discussions, the 1 st Appellant indicated to Pori that he was acquainted to the rhino horn business as he previously assisted a certain white man from Malindi to smuggle 5

6 rhino horn on various occasions from Tanzania to Kenya. 14. The 1 st Appellant also made mention of the fact that he had received rhino horns from one Kaluma Blam from Nanyuki, on the 9 th of January 2014, the date on which the rhino was killed. Blam ( the 2 nd Appellant) wanted the 1 st Appellant to sell the rhino horns to the 1 st Appellant s contact, one Albert, from Mozambique. 15. Albert came after he was contacted by the 1 st Appellant. He requested the 1 st Appellant to travel to Malindi with the two rhino horns. The 1 st Appellant duly obliged and he handed the two rhino horns to Albert in Malindi. Albert thereafter returned to Mozambique with the rhino horns. 16. Blam and a friend of his, one Mnati, were in the meanwhile waiting for the 1 st Appellant in Nanyuki. The 1 st Appellant returned after a week or so to Malindi with money in the sum of Kshs 1,800,000 for the two rhino horns. The 1 st Appellant phoned Blam upon his return to Nanyuki who came to the 1 st Appellant s house to fetch the money. The 1 st Appellant then handed the Kshs 1,800,000 to Blam. Blam in turn gave the 1 st Appellant Kshs. 600,000 for his trouble" of selling the rhino horns. 17. Armed with this information, Pori and his team arrested the 1 st Appellant. He was willing to assist Pori and his team to point out Blam. 18. The 1 st Appellant took Pori and his team to Nanyuki town where he pointed out Blam. In an informal manner, the 1 st Appellant volunteered information to Pori that in 2013 he had obtained a.375 hunting rifle from Blam. It was agreed that he would pay him Kshs. 120,000 for the rifle which the 1 st Appellant never did. 6

7 19. According to Mr Mlachake one of Pori s team members, the 2 nd Appellant had informed him that on the 9 th of January 2014 he (the 2 nd Appellant) was contacted by someone called Alkonen Vitere (the 4 th Appellant herein) who told him that his (4 th Appellant s) father Rinda Timau (the 3 rd Appellant) had shot a rhino on the farm Den Hague with his caliber rifle. The 4 th Appellant then requested the 2 nd Appellant to drive to Den hague to fetch the rhino horns. Upon arrival at the farm, he found Rinda Timau and Alkomen Vitere who handed him the horns. 20. The 3 rd Appellant is later said to have received the sum of Kshs 400,000 from the 2 nd Appellant for the horns. The 2 nd Appellant retained Kshs 600,000 for himself and gave his friend Mnati Kshs 200,000 for having accompanied him to the 3 rd Appellant s home. 21. It would appear that Pori discovered that on the 9 th January 2014, the 1 st Appellant was phoned from a mobile phone whose number was , 000,350". The revelation emerged during analysis of the mobile phone records belonging to the 1 st Appellant. Upon arrest of the 4 th Appellant, his mobile phone was confiscated by Pori, who asked him what his number was. He recited the same number from which the 1 st Appellant was phoned on the 9 th of January Since your law firm, MAZINGIRA BORA & ASSOCIATES is known for their specialization in wildlife protection and biodiversity law litigation, you have been approached to represent the appellants in the appeal in the High Court of Kenya in Nairobi seeking to challenge the Chief Magistrates decision to convict and sentence the appellants. GROUNDS OF APPEAL 23. The Appellants argue: 7

8 i. That section 78 of WCMA 2013 does not disclose any prosecutable offence and therefore the charge under this section cannot be sustained; ii. That the evidence obtained through the process of entrapment as well as that obtained from the appellants phone records is inadmissible and therefore the Magistrate erred in law in admitting the same; iii. That there is nothing in Mr. Pori s evidence which can connect the Appellants with the shooting and selling of the rhino horns; iv. That the 2 nd Appellant made the statement implicating Appellants Nos. 2, 3, and 4 under duress as he was assaulted by Pori and Mlachake; and v. That they were entitled to bail pending the determination of the appeal. 24. Prepare written submissions to be argued in the High Court for the cases of the Appellants and the Director of Public Prosecutions of Kenya covering the grounds set out above. 8