The Republic VS Director of Criminal Investigation Kilindini AND United Freights Services AND 1 Others

1. Before me is an application dated by way of Notice of Motion dated 26^th June 2023 filed by the Director of Public Prosecutions on behalf of Kenya Wildlife Services under Section 389(1) of the Criminal Procedure Code (Cap.75) and Section 105 of the Wildlife Conservation and Management Act 2013.
2. The prayers sought in the application are as follows:-
3. (Spent).
4. That the court be pleased to issue orders for the forfeiture of the four hundred and seventy pieces of elephant tusks (470) weighing 1,478kg herein referred to as trophies to Kenya Wildlife Services (KWS) for safe custody, stockpiling, audit and disposal in accordance with Section 83 of the Wildlife Conservation and Management Act 2013 (WCMA 2013).
5. That the court be pleased to order the forfeiture of Container Number CMAU 1772003 containing the 470 pieces of elephant tusks to Kenya Wildlife Services (KWS).
6. That there be no order as to costs.
7. The application has grounds on the face of the Notice of Motion that Container Number 1772003 was suspected to be carrying 470 pieces of elephant tusks weighing 1,478kgs was intercepted and seized on 30^th November 2012 by a multiagency team led by DCI Kilindini; that however the matter has never proceeded to court as no suspect has been arrested and charged; that the container originated from the Inland Container Depot in Nairobi and had been cleared as sculptures by United Freight Services Ltd; that the container is at the Kenya Wildlife Service Law Enforcement Academy in Manyani Taita-Taveta County for custody from 2012 and was currently undergoing degradation and damage due to environmental hazards; that under Section 83 of the Wildlife Conservation and Management Act; Kenya Wildlife Services is mandated to take custody of all trophies for the purposes of stockpiling and auditing and disposal within the Republic of Kenya and publish the results of the audit in the Kenya Gazette; that trade in trophies of African elephants (Loxodonta Africana) is not permitted under the WCMA 2013 and the same is listed under critically endangered species in the Sixth Schedule of WCMA 2013 and also in the appendix of the Convention of International Trade in Endangered Species of flora and fauna (CITES); that this application has been filed because since 2012 no one has been apprehended and there is no active case in court; that it is paramount that the container and trophies be moved to KWS central stores for effective custody, stockpiling, audit and disposal.
8. The application was filed with an affidavit sworn on 29^th June 2023 by KWS No. 8847 Warden II Kiplagat Talam which amplifies the grounds of the application and annexes a number of documents including photographs of the subject container and a list (inventory) of the pieces of ivory in question.
9. The application was served on all three (3) respondents but no formal response was filed.
10. When the matter was mentioned in court on 28^th September 2023 Mr. Kemei appeared for the Director of Criminal Investigations (DCI) (1^st respondent) and M/s Magoma appeared for Kenya Wildlife Services (KWS).  Nobody appeared for the United Freight Services (2^nd respondent) and Kenya Revenue Authority (3^rd respondent).
11. Mr. Okemwa for the Director of Public Prosecutions (DPP) informed the court that United Freight Services distanced themselves from the matter by informing the DPP that they were merely transporters.  Mr. Okemwa also informed the court that the DPP had received an email from Kenya Revenue Authority informing them that they had no objection to the orders of forfeiture sought.
12. On his part Mr. Kemei for the DCI requested for thirty (30) days to obtain instructing and file a response.
13. On her part, Ms. Magoma for KWS stated that since 2012 the DCI had not taken any steps to progress the investigation, and as such the orders sought are justified as continued delay would lead to more damage to the items and consequent loss.
14. When the matter was mentioned on 17^th November 2023 – Mr. Talam for KWS stated that no communication had been received from the Attorney General's office.  On his part, Mr. Kemei for the DCI stated that they had forwarded documents to the Attorney General and the Assets Recovery Agency and asked for more time to file a response, and this court granted the DCI time up to 22^nd February 2024 to file a response.
15. On 22^nd February 2024, there was still no response filed by the DCI, and the Prosecuting Counsel for DPP emphasized the importance of the court issuing the orders sought.  On her part Ms. Magoma for KWS stated that they would comply with the orders of the court, and that KWS were ready to involve all the stakeholders in the hand over exercise.  Mr. Kemei for DCI on his part, stated that he had not received any instructions, and that they would be willing to attend the handing over exercise.
16. On my part, having considered the application and noting that there is no objection filed, and mindful of the fact that it is now more than 11 years since the container and ivory items were detained, and with obvious imminent risk of deterioration and damage of the container and tusks, I find that it will be in the best interest of justice in wildlife conservation efforts to issue the orders sought.  I thus allow the application and order as follows:-
17. This court issues orders forfeiting the four hundred and seventy pieces of elephant tusks (470) weighing 1,478kg herein referred to as trophies to Kenya Wildlife Services (KWS) for safe custody, stockpiling, audit and disposal in accordance with Section 83 of the Wildlife Conservation and Management Act 2013 (WCMA 2013).
18. This court orders the forfeiture of Container Number CMAU 1772003 containing the 470 pieces of elephant tusks to Kenya Wildlife Services (KWS).
19. Parties will bear their respective costs of this application.

Dated, signed and delivered this 19^th day of March 2024 in open court at Voi.