(Being an Appeal against the Judgment of Hon. D.Kavedza – SPM/CM (as she then was)
Criminal Case No. E019 of 2022 at the Chief Magistrate’s Court Kahawa
delivered on 29 th December 2022)
PETITION OF APPEAL
1. On 23 rd January 2023 the Officer of the Director of Public Prosecutions filed appeal against the judgement of Hon. D. Kaveda – SPM delivered on 29 th December, 2022 and stated that:-
COUNT 1
2. The Respondent Husuman Moche was charged with offence of trafficking in persons contrary to section 3(1)(d) as read with Section 3(5 ) of the Counter Trafficking in Persons Act No. 8 of 2010.
3. The particulars being that on 18 th February, 2022 at Mugumo Estate within Kiambu County, jointly with others not before court, trafficked by harbouring sixty-one (61) Ethiopian nationals namely (names see attached sheet of 61 names) for the purpose of exploitation by means of deception.
COUNT 2
4. The accused person was charged with the offence of trafficking in persons contrary to section 3(1) and section 3(3) as read with section 3(5), of the Counter Trafficking in Persons Act.
5. The particulars being that on 18th February, 2022 at Mugumo Estate within Kiambu County, jointly with others not before court, trafficked by harbouring forty-seven (47) Ethiopian nationals namely ( names see attached sheet of 47 names of underage Ethiopian Nationals ) for the purpose of exploitation by means of deception.
GROUNDS OF APPEAL
1. THAT the learned trial Magistrate erred in both fact and law
by failing to consider the element of receiving under Section 3 (1 ) of the Counter Trafficking in Persons Act even in absence of other elements as adequate to find the Respondent guilty of the offence of human trafficking.
2. THAT the learned trial Magistrate erred in fact and in law by failing to consider that some of the victims received and harboured by the Respondent were children and that the prosecution was not required to prove any other element as set out in section 3 (1) of Counter Trafficking in Persons Acts.
3. THAT the learned trial Magistrate erred in fact and in law by laying emphasis only on the element of harbouring as opposed to other elements such as receiving, aiding, and abetting the commission of the crime of trafficking in persons.
4. THAT the learned trial Magistrate erred in both fact and law by finding the Respondent guilty of a minor cognate offence of human smuggling under Section 53 (1)(p) as opposed to Human trafficking ignoring uncontroverted Prosecution’s evidence that proved that the Respondent received the victims in Nairobi and that he aided and abated the commission of the crime of Trafficking in persons.
5. THAT the learned trial magistrate erred in law and in fact by finding that the prosecution failed to call crucial witnesses even after the prosecution informed the court that the said witnesses went into hiding.
6. THAT the learned trial magistrate erred in law by ignoring the provisions of Section 143 of the Evidence Act to the effect that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
7. THAT the learned trial Magistrate erred in fact and law by failing to consider the prosecution's evidence in its entirety
and thus reached a wrong conclusion.
8. The Appellant prays for the following ORDERS
(a) THAT the appeal herein be allowed in its entirety.
(b) THAT the conviction of the Respondent under Section
53(1)(p) of the Kenya Citizenship and Immigration Act be quashed and set aside and substituted with a conviction under Section 3(1)(d) as read with Section 3(5) of the Counter Trafficking in Persons Act.
(c) THAT the sentence meted out on the Respondent under section 53(1)(p) of the Kenya Citizenship and Immigration Act be quashed and set aside and substituted with an appropriate sentence under Section 3(1)(d) as read with section 3(5) of the Counter Trafficking in Persons Act.
(d) Any further or alternative relief and/or order that this Honourable Court may deem fit and just to grant in the interest of justice.
TRIAL COURT’S PROCEEDINGS
PROSECUTION WITNESSES
1. PW1 - No. 87032 PC Lawrence Kiniti the Arresting officer in this matter testified that on 18/2/2022 they received a call from their Commander of a syndicate to proceed and rescue people who had been locked up in a house at Kirigiti, Mugumo area. They proceeded with IP Gladys Mbula, P.C, Winfred Karimi and P.C. Yusuf Kakimon. Upon reaching there the gate was locked, they broke the gate to get access. They met a lady who had a large sufuria and they introduced themselves and the purpose of their visit. She told them she is Rosemary Nyambura Ebron employed as a cook by Husuman earning 5000/- per month. He requested to see the people she cooks for and when they entered the house, they met many young people who could not communicate in Kiswahili. They looked worried and lost. He counted109 people and among them one of them was Kenyan by the name Jamhuri who was also an employee of Husuman earning 10,000/-. His work was to attend to the welfare of the foreigners and also maintained a register of those who came in and left.
He gave them 4 books, three of them had names of Ethiopians and one had record of food stuffs an A4 exercise book of 120 pages PMF1 5. Jamhuri told him that his cousin Kevin was also an employee but he had been sent to the shops and he assisted him in keeping records and attending to the welfare of the victims. He said that their phones are used by the victims to call south Africa or Ethiopia. Kevin also used to ensure security of the premises. They received intelligence that Husuman was on the way coming they waited for him near the main gate and as soon as he reached the gate, they blocked him. He was driving Vitz vehicle registration No. KBU 739. He ordered him to alight and immediately Husuman threw one phone to the fence when he was alighting. He ordered him to surrender his other phones.
a. A button phone (mulika mwizi) a smart phone.
b. Techno spark pro
c. KG Tel.
Inside the car at the front there was a brown envelope which had names of Ethiopians and telephone numbers- MF1 7. When he was asked about people who were they he started speaking to victims in Amharic language but one of the officers who spoke in Amharic told him not to address the victim. He said that had been sent and he had no idea how the victims ended up there. They arrested the accused and his employees and took them to the police station and also rescued 108 males and sought them a safe house in various police stations where they were being housed.
They conducted an interview with the help of an interpreter from the Ethiopian Embassy. They were minors and also adults.
On cross examination by Mr. Nyaribo h e stated that on 18 th February they received information from the Officer in Charge Transnational and Organized Crime Unit in the afternoon to go and rescue the victims. They arrested the accused person the same day outside the gate of a residential house. The accused was alone when they arrested him. The house was a standalone in its compound. In the house they found a lady preparing 'Githeri' in a big sufuria who told them that she was not the owner of the house. He arrested the lady because she was among the people who were taking care of the victims.
He also found two men by the names Jamhuri son of the lady who was preparing Githeri and Kevin who said he was cousins to Jamhuri but he did not establish the accuracy of that information as he was not the investigating officer. Kevin had invited Jamhuri to the house to work with him as he had secured a job from the accused with the help of his mother since Kevin’s mother and accused were friends. Hussein the (accused) asked them to find a cook and Jamhuri brought his mother. Before Rosemary came he did not know who was cooking for the victims. He produced exercise book (PMF1-6) exhibits he recovered from Jamhuri and Rosemary. He conducted a search in the house but did not recover anything else. They handed him the books after he requested for the names of the victims. He arrested Rosemary within the compound. He stated that all the victims were in the house. The accused was arrested less than 5 meters from the house. The other three; Rosemary, Kevin and Jamhuri were inside the compound outside the house.
When he asked the accused about the three employees he said he had brought food stuffs to cater for the welfare of the people. He had cooking oil and other food stuff. He questioned the victims but there was a language barrier but some could speak broken English and when they were asked who the accused was they said he drives a vehicle bringing people in and others out. Upon arrest the accused was shown the books and he said he was not the one who had written in the books. He recovered an envelope from the accused (MFI -7) but he did not establish who had written the names as this is the work of the investigating officer.
He said that he was the arresting officer and he arrested the accused person, Jamhuri, Kevin Rosemary and then rescued the victims.
2. PW2 Solomon Birhanu stated he was 14 years old that he was a student at Howecho Elementary School. He came from Homecho in Hosana the South in Ethiopia. A broker took him and they came to Kenya by road walking for ten days in the forest. They were beaten and did not have food. After reaching Nairobi they were received by Mohamed who took them to a house where they were fed with rice and ‘githeri’. He was asked to pay Ksh 50,000/- to be taken to South Africa but his family did not have money. He said Chuchu and Mohamed are the ones who asked them to pay Ksh 50,000 in Ethiopian currency. He identified Mohamed as the one in the dock.
3. On cross examination he stated that in Moyale he met Hassan. Abusha his friend told him Hassan was the broker. Chuchu was also in the house where they were being housed. Chuchu used to ensure that they do not leave/escape. When the police came, he told them to keep silent. Chuchu was the one who gave him the phone that he used to call his bother. It was Mohamed (accused) who was bringing food, Maize, rice, sugar, biscuits. But there was a lady who was giving them food. Chuchu does not speak Amharic. He was only using sign language. Chuch was not the one who was cooking for them. Chuchu had a stick and could not allow them to leave. Chuchu is a man. He said he wanted to go back to Ethiopia.
4. PW3 Bereket Alemu 14 years old, an orphan from Hosana Musto in Ethiopia stated that he was a shoe shiner. He said that a costumer told him to pay 20,000 and he could secure him a better job. He paid the money and he left Howasa to Moyale Kenya and he was handed over to another broker who took him to the forest where there were no people and walked through the forest for one month and 17days, when they reached a Centre they boarded a vehicle for 2 days and they reached a certain town and they were taken to a house where they were received by Mohammed the accused person. He told them they were not allowed to complain over anything and if they tried to do so they could be beaten. He said that Mohammed asked him to call his family and ask the for 320,000/- Ethiopian money but he did not have a family to call. He stayed in the house for one month and 17 days before he was rescued. He said they were 142 in the house but some had left after paying money.
5. On cross examination he said that he has been away for 3 months and two days. He stated that his customer told him there was job opportunity and he could earn 16,000 more than 13,000 which he used to earn.
He said he left Ethiopia willingly for greener pastures. He said the accused is the one who received them from the forest.
6. PW4 Dawit Tafasa (minor) 17 years old a student in Aduna said that he was an Ethiopian from Hosana. His friends Mitiku and Damake told him there was job opportunities in South Africa. He got interested so that he could assist his parents. He was connected via phone to a broker called Desta who was in South African at the time.
A Kenyan whose name he did not know assisted him to cross the border. They were 42 and they walked in the forest for 3 days with a team of people who had knives and firearms. On reaching the road a vehicle came and picked 42 people but he was left alone. He stayed in the forest overnight guarded by two people. In the morning he was picked by a motor vehicle only to be left again in a maize plantation for a night and then picked up the following morning and taken to the house where he was rescued. He said that when he asked for food, he was beaten by Chuchu Caretaker. He said that Mohamed the accused person was the one in charge.
7. He testified that Mohamed told him to call his family and tell them to send him money so that he can take him to South Africa. When he called his father asked him how he got to Kenya without his permission. Mohammed threatened his father that he could kill him. Mohammed painted his face red, took a photo and sent it to his uncle’s phone in Ethiopia. When his father called him after seeing the photo he crying. He said Mohamed was the accused person before court.
8. On cross examination he said that his father called him crying and said that he had sent some money that should take him to south Africa or back home. When the police asked him to take his photo and send to his father, his father said he was scared to see his photo because of what he had received.
9. PW5 Phllis Njanja Ndinguri (Adult)a retired banker now a farmer said that he owned a property Mugumo Nyakinuya 1 Kiambaa/93 the title was for his sister who passed on, Rose Wanjiru Nga'nga. He stated that he is one of the administrators through a grant dated 12/08/2020 SPM Gilhunguri Gitevigion Succession No. 49/2016 MF1 - 11. He rented the house to Mercy Wambui Ebson, for three months but later she released it to her friend not known to PW4.
She was supposed to pay 70,000/- per month through co-operative 01109705154300 account name Phillis/Ronald Goh and Mark who are the administrators of the property. He produced bank statement from co-operative bank signed and clarified dated 21/03/2022 for the period January 1 st - 20 th February 2022-MFI 12 EXB 12 deposited by Mercy Wambui. Tenant Mercy Wambui Ebron ID No. 25057403 Box Number 64178/0063 with reference to Mugumo/Nyakinyua/Kiambaa/93A monthly rent was 70.000/ MFI 15. EXB 15. She told him it was for the family to stay so he never visited. Around February a neighbor Mama Nthiga called him at night at 10.00 pm informing him that there were police officers at his premises. He went to Kiambu in the morning and found the gate open and the house door was open with no one inside and no furniture in the house. He called Mercy in the morning but she was ‘mteja’. He then received a call from DCI telling him that more than 100 foreigners were staying in his house but he told him Mercy was the one who occupied his house.
10. On cross examination he stated that he had no money transaction between him and the accused person nor had he ever communicated with him through phone. Mercy was the occupant in his house and she used to pay rent and water bills
11. PW6 Wigisse Siyum 23 years old stated that he was connected by Takakel in Moyale Ethiopia to brokers who could assist him to get a better job in South Africa. He was to pay 260, 000 for the job. When he crossed border to Kenya, he met another group of 27 people. They walked together through the forest and at some point, on reaching the road they boarded a vehicle to Nairobi where they were taken to a house and they were received by Hussein the accused person. He was asked by Hussein to call his family and ask them to send him 100,000/- and after speaking to them the phone was taken away from him; therefore he do not know if the money was sent. Hussein used to communicate with them in Amharic language.
12. On cross examination he said the accused received them and is the one who was supposed to take the to South Africa. He said he could not complain for fear of being beaten.
13. PW7 – Teshmine Burahani 25 years old stated that he left home for Nairobi after being promised in South Africa by a broker upon payment of 350,000/-. Hussein used to give him directions through phone to travel to Moyale.
He was taken to border by the broker and they crossed the border 8 people. He said they were 42 and they walked in the forest for one month and ten days. On reaching Nairobi Hussein received them. He was asked by Hussein to call his family and tell them to send Hussein money. He said he wanted to be returned home.
14. On cross examination he said that some people would be taken out at night. The two boys who were in the house used to beat them.
15. PW 8 No. 79969 Sgt Hudson Henry Masake from DCI headquarters Crime Scene Investigations stated that IP Gladys called him to a house in Kiu river near Kirigiti on the way to Kiambu and they went to the scene on 18/2/2022 from 7.30-8.30 pm. He took 6 photos, produced the photos and made a report together with his certificate. Bundles of 66 photos MFI 1611-66) report dated 15/03/2022-MF1 17 and he signed the report. He took the court through the bundle of photographs.
16. On cross examination he said that he did not know the accused person therefore he could not tell if he was there or not as no one had told him about him.
17. PW 9 No. 237018 IP Gladys Mbula Titus of DCI headquarters TOCU an Investigating Officer in this matter stated that on 18/02/2022 the officer in charge told her that there were foreigners being held in a residential house. At 16:00 hrs. with P.C Karimi they proceeded to the house, they found the gate closed. They broke the gate and they found a lady in the compound. They introduced themselves and she told them her name is Rosemary Nyambura and was employed to cook for visitors. They instructed her to open the house. In each room except the kitchen, they found foreigners and they could not-communicate in English or Kiswahili. They counted109 foreigners whom they suspected to be Ethiopians and one Kenyan Jamhuri hiding among the Ethiopians who told them he was employed by Hussein to keeps records. He gave them 4 books, three of them had names of Ethiopians and one had record of food stuffs. And receipt MF1 5 EXB 5. Receipts the food was being bought by Hassan Hussein MF1 6 (6a-f8) EXB 6(a-e) The other 3 books had names of foreigners.
18. After a while Kevin came and told them he was employed as a watchman by Hussein. While there they received a call that Husuman was on the way to the premises. He came in driving motor vehicle KBU 739 U silver in color Toyota Vitz. They informed Jamhuri that he should open the gate. Jamhuri opened the gate he drove inside the compound and on seeing the police officers reflective jackets he threw a phone which he was holding into a bush outside the gate but they recovered it. His car was searched, he had one sack of charcoal and one sack of rice inside the car at the front there was a brown envelope which had names of Ethiopians MF1 7, EXBT 7. They conducted a search on his person and recovered two mobile phones from his pocked, A Techno MF1 18 and KGTEL. (exhibit20). The TZ phone that the accused threw into the bush was produced as MF1 19, KGTEL recovered from his pocket. PC Kimiti prepared a certificate of entry and search which was signed by the witnesses who were present. After, the scene of crime was processed by Sgt. Masaka of Scene of crime. The victims were put in various police stations, Husman and his co-workers were locked up at Kasarani and Muthaiga.
19. On 23/02/2022 they made a request to the Embassy of Republic Ethiopia to come and interview the victims. Letter dated 23/02/2022. MFI 23 P EXB 23. ON 07/03/2022, we received a report from the Embassy confirming that the 108 were Ethiopians MFI 24. PEXB 24. On 23 rd and. 24th February they recorded 7 statements of the victims with assistance of the interpreter and on 24 th they prepared a memo and forwarded to the cyber for phone analysis. EXB memo dated 24/02/2022 MFI 25, PEXB. On 28 th February two persons were charged before court with the offence of trafficking.
20. PW 10 – Guyo Allamu Kheche. He testified that he knew Hussein Moche as a taxi operator. Stated that he received a call from CID that they had his car. He said that on 19/03/2022 at 16:50 hrs vide OB No. 69/19/03/2022 he had reported that the accused had gone missing with his car. He gave Hussein his car so that he could use it to run a taxi. He had the agreement which showed he gave him the motor vehicle dated 05/10/2021 MFI 55, EXB 55. He used to pay him 1500/= per month in cash. He had a log book for the motor vehicle which had his name- MF156, exhibit.
21. PW 11 No. 1065305 P.C Gerishon Kibara Rono, stationed at DCI cyber-crime Unit produce a forensic report of 8 mobile phones which were submitted to their office on 24/02/2022 from TOCU under the search warrant of IP Gladys Mbula. He produced exhibit MF1 51 summary reports (61 EXB A – accused’s mobile phone and captured through IMEI, S/N and simcard, importance to its case, there was communication with No. 0725659777 which is common it is saved as Siz Jane Later on the name changes to Viu Sasa. The communication was frequent. The number communicated with the techno phone the last time on 19/02/2022.
21. The report was the phone IMEI, SIMCARD, S/No of the Techno. It contained 365 call conversations 75 messages and 59 images. IME S/N there was communication with number saved as Siz Jane. Later on, the name changes to Viu Sasa, the communication was frequent. The number communicated with the techno phone the last time on 19/02/2022.
1. He produced the extract (b) the techno phone and the. number, [EXB 51J
2. Exhibit Al the contents are call conversation and text messages (EXB 52). The portion relevant is for PW9
3. Exother for some time but we have escaped my memory. So, we agreed to talk. I was also running a taxi business. So, he requested me to drop for him some luggage at a particular home. She promised to give me work.
DEFENCE WITNESSES
22. DW1 – Hussein Moche testified that he operates business of slaughtering goats and selling at Wangige market and he also operates a taxi business. He also stated that at the material day he had been requested by a customer whom he could not remember his name to drop for him a sack of charcoal and rice at a certain house. That upon reaching there his car was blocked by another car and he was ordered to alight then he was arrested and handcuffed. He said that he never threw a phone to the bush and he was not trafficking Ethiopians.
23. DW 2 Mulasha Mallo Chokol Mulasha stated that she had been married to the accused person for twenty-three years and they had four 4 children. On cross examination she said she does not accompany her husband to work.
24. DW 3 Halima Juma Cheme said that she had been married to Hussein Moche for the last 12 years and they have 6 children. She stated that the accused sells goat meat and also operates a taxi business within the home area.
25. DW 4 - Zainab Husuman and DW5 – Sophia Osmasn Mwale both daughters of the accused person testified that their father sells meat and operates a tax business.
26. DW 6 ID No. 29382988 Abraham Getununa Kura stated that Hussein Moche buys meat from him and other butcheries as well as operating a taxi business after 1.00 pm.
27. DW7 ID No. 32679927 Nuur Osman Gumbo said that they do business together with the accused person since the year 2019 but they do not write any agreement. He as stated that they both do not have license.
APPELLANT’S SUBMISSIONS
The Appellant; Office of Public Prosecution (ODPP) filed appeal against conviction of lesser offence and sentence and submitted as follows;
ISSUES FOR DETERMINATION
28. Under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
29. The Respondent was charged with two counts of the offence of Trafficking in Persons contrary to Section 3(1)(d) as read with Section 3(5) of Counter Trafficking in Persons Act which provides that: -
"A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbors or receives another person for the purpose of exploitation by means of (d) deception; section 3(5) provides,
"A person who traffics another person, for the purpose of exploitation, commits an offence and is liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life."
30. In framing the elements of a charge of trafficking in persons, Appellant was guided by the decision in Muhammad Asif vs. Republic (2017) eKLR where the Court identified that the evidence ought to point to whether the accused person has;
(a) Recruited, transported, transferred, received, held,
concealed, or harbored the victim, or exercised control, direction or influence over the movements of the victim, and
(b) By means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and
(c) Done this for the purpose of exploiting the victim or
facilitating their exploitation.
Whether the accused recruited, transported, transferred, received, held, concealed, or harbored the victim,
31. PW2 a minor testified that he travelled from Ethiopia and that when he reached Nairobi he was received by the Respondent. That he was taken to a house by the Respondent. He further stated that those without money were not allowed to leave the house or even shower. That while in the house, the Respondent gave him a phone to call his family to ask for money to facilitate his travel to South Africa.
32. PW3 a minor testified that it is the Respondent who received him in the forest and together in a motor-vehicle where the Respondent sat beside the driver, they drove to the subject house in Mugumo Estate. Further, that the Respondent gave him a phone to call home and ask for 320.000 Ethiopian money.
33. PW4 a minor testified that he was transported all the way from Ethiopia to Nairobi and taken to the subject house. That the following morning, the Respondent who he stated was in charge of the house gave him a phone to call home and ask for money. He stated that when the money was not forthcoming, the Respondent took him outside the house, painted his face red and took a photo and sent his uncle back in Ethiopia.
34. PW5 testified that he travelled to Kenya through Moyale and it was the Respondent who received them and took them to the subject house. Further, that when they reached Nairobi, the Respondent in his presence called a broker in Ethiopia to inform him that they reached Nairobi safely He testified that he was beaten by two men who they lived with to call his family and ask for money.
35. PW6 testified that he received instructions through the phone of a broker in Ethiopia from the Respondent to travel to Moyale. That he was told by the broker in Ethiopia that he would be received in Nairobi by a person who had a house and a vehicle in Nairobi and that was what happened the person that received him was the Respondent. He also testified that he was able to recognize the Respondent's voice as the one he had communicated with when he met him.
36. PW9 the Investigating Officer testified that a total of 108 victims were rescued from the subject house in Mugumo Estate and that some were minors as established by the age assessment reports. She also established that the other three Kenyans found in the house were employees of the Respondent and that they were related. She also established that Rosemary who was the cook was a sister to the tenant of the house one Mercy Wambui and PW7 produced a lease agreement and bank statement to ascertain the tenancy relationship PW9 also obtained call records between the Rrespondent and Mercy Wambui showing that there was constant communication between the two. All the victims corroborated each other's testimony to the effect that the Respondent was in charge of the house and all the occupants were under his command.
37. In the case of Muhammad Asif vs Republic (supra), the Court observed that.
"The offence of trafficking in persons captures the entire trafficking continuum, and engagement in just one of these trafficking "stages" is sufficient. Therefore, different persons or groups of people may be responsible for different aspects of the trafficking crime. The offence is thus formulated in such a way as to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim's labour or services, so long as they knew their action was for the purpose of exploiting or facilitating the exploitation of a person.”
38. They further submitted that, whereas just a singular element was sufficient to prove charge of trafficking in persons, the Prosecution proved beyond reasonable doubt that the Respondent not only harbored the victims but he also assisted in the transportation, transfer and received the 108 victims. The prosecution further submitted that the second count was brought under section 3(3) of Counter Trafficking in Persons Act since the victims were minors and the section provides that:-
"The recruitment, transportation, transfer, harboring or receipt of a child for the purposes of ex
[...truncated]
Criminal Case No. E019 of 2022 at the Chief Magistrate’s Court Kahawa
delivered on 29 th December 2022)
PETITION OF APPEAL
1. On 23 rd January 2023 the Officer of the Director of Public Prosecutions filed appeal against the judgement of Hon. D. Kaveda – SPM delivered on 29 th December, 2022 and stated that:-
COUNT 1
2. The Respondent Husuman Moche was charged with offence of trafficking in persons contrary to section 3(1)(d) as read with Section 3(5 ) of the Counter Trafficking in Persons Act No. 8 of 2010.
3. The particulars being that on 18 th February, 2022 at Mugumo Estate within Kiambu County, jointly with others not before court, trafficked by harbouring sixty-one (61) Ethiopian nationals namely (names see attached sheet of 61 names) for the purpose of exploitation by means of deception.
COUNT 2
4. The accused person was charged with the offence of trafficking in persons contrary to section 3(1) and section 3(3) as read with section 3(5), of the Counter Trafficking in Persons Act.
5. The particulars being that on 18th February, 2022 at Mugumo Estate within Kiambu County, jointly with others not before court, trafficked by harbouring forty-seven (47) Ethiopian nationals namely ( names see attached sheet of 47 names of underage Ethiopian Nationals ) for the purpose of exploitation by means of deception.
GROUNDS OF APPEAL
1. THAT the learned trial Magistrate erred in both fact and law
by failing to consider the element of receiving under Section 3 (1 ) of the Counter Trafficking in Persons Act even in absence of other elements as adequate to find the Respondent guilty of the offence of human trafficking.
2. THAT the learned trial Magistrate erred in fact and in law by failing to consider that some of the victims received and harboured by the Respondent were children and that the prosecution was not required to prove any other element as set out in section 3 (1) of Counter Trafficking in Persons Acts.
3. THAT the learned trial Magistrate erred in fact and in law by laying emphasis only on the element of harbouring as opposed to other elements such as receiving, aiding, and abetting the commission of the crime of trafficking in persons.
4. THAT the learned trial Magistrate erred in both fact and law by finding the Respondent guilty of a minor cognate offence of human smuggling under Section 53 (1)(p) as opposed to Human trafficking ignoring uncontroverted Prosecution’s evidence that proved that the Respondent received the victims in Nairobi and that he aided and abated the commission of the crime of Trafficking in persons.
5. THAT the learned trial magistrate erred in law and in fact by finding that the prosecution failed to call crucial witnesses even after the prosecution informed the court that the said witnesses went into hiding.
6. THAT the learned trial magistrate erred in law by ignoring the provisions of Section 143 of the Evidence Act to the effect that no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
7. THAT the learned trial Magistrate erred in fact and law by failing to consider the prosecution's evidence in its entirety
and thus reached a wrong conclusion.
8. The Appellant prays for the following ORDERS
(a) THAT the appeal herein be allowed in its entirety.
(b) THAT the conviction of the Respondent under Section
53(1)(p) of the Kenya Citizenship and Immigration Act be quashed and set aside and substituted with a conviction under Section 3(1)(d) as read with Section 3(5) of the Counter Trafficking in Persons Act.
(c) THAT the sentence meted out on the Respondent under section 53(1)(p) of the Kenya Citizenship and Immigration Act be quashed and set aside and substituted with an appropriate sentence under Section 3(1)(d) as read with section 3(5) of the Counter Trafficking in Persons Act.
(d) Any further or alternative relief and/or order that this Honourable Court may deem fit and just to grant in the interest of justice.
TRIAL COURT’S PROCEEDINGS
PROSECUTION WITNESSES
1. PW1 - No. 87032 PC Lawrence Kiniti the Arresting officer in this matter testified that on 18/2/2022 they received a call from their Commander of a syndicate to proceed and rescue people who had been locked up in a house at Kirigiti, Mugumo area. They proceeded with IP Gladys Mbula, P.C, Winfred Karimi and P.C. Yusuf Kakimon. Upon reaching there the gate was locked, they broke the gate to get access. They met a lady who had a large sufuria and they introduced themselves and the purpose of their visit. She told them she is Rosemary Nyambura Ebron employed as a cook by Husuman earning 5000/- per month. He requested to see the people she cooks for and when they entered the house, they met many young people who could not communicate in Kiswahili. They looked worried and lost. He counted109 people and among them one of them was Kenyan by the name Jamhuri who was also an employee of Husuman earning 10,000/-. His work was to attend to the welfare of the foreigners and also maintained a register of those who came in and left.
He gave them 4 books, three of them had names of Ethiopians and one had record of food stuffs an A4 exercise book of 120 pages PMF1 5. Jamhuri told him that his cousin Kevin was also an employee but he had been sent to the shops and he assisted him in keeping records and attending to the welfare of the victims. He said that their phones are used by the victims to call south Africa or Ethiopia. Kevin also used to ensure security of the premises. They received intelligence that Husuman was on the way coming they waited for him near the main gate and as soon as he reached the gate, they blocked him. He was driving Vitz vehicle registration No. KBU 739. He ordered him to alight and immediately Husuman threw one phone to the fence when he was alighting. He ordered him to surrender his other phones.
a. A button phone (mulika mwizi) a smart phone.
b. Techno spark pro
c. KG Tel.
Inside the car at the front there was a brown envelope which had names of Ethiopians and telephone numbers- MF1 7. When he was asked about people who were they he started speaking to victims in Amharic language but one of the officers who spoke in Amharic told him not to address the victim. He said that had been sent and he had no idea how the victims ended up there. They arrested the accused and his employees and took them to the police station and also rescued 108 males and sought them a safe house in various police stations where they were being housed.
They conducted an interview with the help of an interpreter from the Ethiopian Embassy. They were minors and also adults.
On cross examination by Mr. Nyaribo h e stated that on 18 th February they received information from the Officer in Charge Transnational and Organized Crime Unit in the afternoon to go and rescue the victims. They arrested the accused person the same day outside the gate of a residential house. The accused was alone when they arrested him. The house was a standalone in its compound. In the house they found a lady preparing 'Githeri' in a big sufuria who told them that she was not the owner of the house. He arrested the lady because she was among the people who were taking care of the victims.
He also found two men by the names Jamhuri son of the lady who was preparing Githeri and Kevin who said he was cousins to Jamhuri but he did not establish the accuracy of that information as he was not the investigating officer. Kevin had invited Jamhuri to the house to work with him as he had secured a job from the accused with the help of his mother since Kevin’s mother and accused were friends. Hussein the (accused) asked them to find a cook and Jamhuri brought his mother. Before Rosemary came he did not know who was cooking for the victims. He produced exercise book (PMF1-6) exhibits he recovered from Jamhuri and Rosemary. He conducted a search in the house but did not recover anything else. They handed him the books after he requested for the names of the victims. He arrested Rosemary within the compound. He stated that all the victims were in the house. The accused was arrested less than 5 meters from the house. The other three; Rosemary, Kevin and Jamhuri were inside the compound outside the house.
When he asked the accused about the three employees he said he had brought food stuffs to cater for the welfare of the people. He had cooking oil and other food stuff. He questioned the victims but there was a language barrier but some could speak broken English and when they were asked who the accused was they said he drives a vehicle bringing people in and others out. Upon arrest the accused was shown the books and he said he was not the one who had written in the books. He recovered an envelope from the accused (MFI -7) but he did not establish who had written the names as this is the work of the investigating officer.
He said that he was the arresting officer and he arrested the accused person, Jamhuri, Kevin Rosemary and then rescued the victims.
2. PW2 Solomon Birhanu stated he was 14 years old that he was a student at Howecho Elementary School. He came from Homecho in Hosana the South in Ethiopia. A broker took him and they came to Kenya by road walking for ten days in the forest. They were beaten and did not have food. After reaching Nairobi they were received by Mohamed who took them to a house where they were fed with rice and ‘githeri’. He was asked to pay Ksh 50,000/- to be taken to South Africa but his family did not have money. He said Chuchu and Mohamed are the ones who asked them to pay Ksh 50,000 in Ethiopian currency. He identified Mohamed as the one in the dock.
3. On cross examination he stated that in Moyale he met Hassan. Abusha his friend told him Hassan was the broker. Chuchu was also in the house where they were being housed. Chuchu used to ensure that they do not leave/escape. When the police came, he told them to keep silent. Chuchu was the one who gave him the phone that he used to call his bother. It was Mohamed (accused) who was bringing food, Maize, rice, sugar, biscuits. But there was a lady who was giving them food. Chuchu does not speak Amharic. He was only using sign language. Chuch was not the one who was cooking for them. Chuchu had a stick and could not allow them to leave. Chuchu is a man. He said he wanted to go back to Ethiopia.
4. PW3 Bereket Alemu 14 years old, an orphan from Hosana Musto in Ethiopia stated that he was a shoe shiner. He said that a costumer told him to pay 20,000 and he could secure him a better job. He paid the money and he left Howasa to Moyale Kenya and he was handed over to another broker who took him to the forest where there were no people and walked through the forest for one month and 17days, when they reached a Centre they boarded a vehicle for 2 days and they reached a certain town and they were taken to a house where they were received by Mohammed the accused person. He told them they were not allowed to complain over anything and if they tried to do so they could be beaten. He said that Mohammed asked him to call his family and ask the for 320,000/- Ethiopian money but he did not have a family to call. He stayed in the house for one month and 17 days before he was rescued. He said they were 142 in the house but some had left after paying money.
5. On cross examination he said that he has been away for 3 months and two days. He stated that his customer told him there was job opportunity and he could earn 16,000 more than 13,000 which he used to earn.
He said he left Ethiopia willingly for greener pastures. He said the accused is the one who received them from the forest.
6. PW4 Dawit Tafasa (minor) 17 years old a student in Aduna said that he was an Ethiopian from Hosana. His friends Mitiku and Damake told him there was job opportunities in South Africa. He got interested so that he could assist his parents. He was connected via phone to a broker called Desta who was in South African at the time.
A Kenyan whose name he did not know assisted him to cross the border. They were 42 and they walked in the forest for 3 days with a team of people who had knives and firearms. On reaching the road a vehicle came and picked 42 people but he was left alone. He stayed in the forest overnight guarded by two people. In the morning he was picked by a motor vehicle only to be left again in a maize plantation for a night and then picked up the following morning and taken to the house where he was rescued. He said that when he asked for food, he was beaten by Chuchu Caretaker. He said that Mohamed the accused person was the one in charge.
7. He testified that Mohamed told him to call his family and tell them to send him money so that he can take him to South Africa. When he called his father asked him how he got to Kenya without his permission. Mohammed threatened his father that he could kill him. Mohammed painted his face red, took a photo and sent it to his uncle’s phone in Ethiopia. When his father called him after seeing the photo he crying. He said Mohamed was the accused person before court.
8. On cross examination he said that his father called him crying and said that he had sent some money that should take him to south Africa or back home. When the police asked him to take his photo and send to his father, his father said he was scared to see his photo because of what he had received.
9. PW5 Phllis Njanja Ndinguri (Adult)a retired banker now a farmer said that he owned a property Mugumo Nyakinuya 1 Kiambaa/93 the title was for his sister who passed on, Rose Wanjiru Nga'nga. He stated that he is one of the administrators through a grant dated 12/08/2020 SPM Gilhunguri Gitevigion Succession No. 49/2016 MF1 - 11. He rented the house to Mercy Wambui Ebson, for three months but later she released it to her friend not known to PW4.
She was supposed to pay 70,000/- per month through co-operative 01109705154300 account name Phillis/Ronald Goh and Mark who are the administrators of the property. He produced bank statement from co-operative bank signed and clarified dated 21/03/2022 for the period January 1 st - 20 th February 2022-MFI 12 EXB 12 deposited by Mercy Wambui. Tenant Mercy Wambui Ebron ID No. 25057403 Box Number 64178/0063 with reference to Mugumo/Nyakinyua/Kiambaa/93A monthly rent was 70.000/ MFI 15. EXB 15. She told him it was for the family to stay so he never visited. Around February a neighbor Mama Nthiga called him at night at 10.00 pm informing him that there were police officers at his premises. He went to Kiambu in the morning and found the gate open and the house door was open with no one inside and no furniture in the house. He called Mercy in the morning but she was ‘mteja’. He then received a call from DCI telling him that more than 100 foreigners were staying in his house but he told him Mercy was the one who occupied his house.
10. On cross examination he stated that he had no money transaction between him and the accused person nor had he ever communicated with him through phone. Mercy was the occupant in his house and she used to pay rent and water bills
11. PW6 Wigisse Siyum 23 years old stated that he was connected by Takakel in Moyale Ethiopia to brokers who could assist him to get a better job in South Africa. He was to pay 260, 000 for the job. When he crossed border to Kenya, he met another group of 27 people. They walked together through the forest and at some point, on reaching the road they boarded a vehicle to Nairobi where they were taken to a house and they were received by Hussein the accused person. He was asked by Hussein to call his family and ask them to send him 100,000/- and after speaking to them the phone was taken away from him; therefore he do not know if the money was sent. Hussein used to communicate with them in Amharic language.
12. On cross examination he said the accused received them and is the one who was supposed to take the to South Africa. He said he could not complain for fear of being beaten.
13. PW7 – Teshmine Burahani 25 years old stated that he left home for Nairobi after being promised in South Africa by a broker upon payment of 350,000/-. Hussein used to give him directions through phone to travel to Moyale.
He was taken to border by the broker and they crossed the border 8 people. He said they were 42 and they walked in the forest for one month and ten days. On reaching Nairobi Hussein received them. He was asked by Hussein to call his family and tell them to send Hussein money. He said he wanted to be returned home.
14. On cross examination he said that some people would be taken out at night. The two boys who were in the house used to beat them.
15. PW 8 No. 79969 Sgt Hudson Henry Masake from DCI headquarters Crime Scene Investigations stated that IP Gladys called him to a house in Kiu river near Kirigiti on the way to Kiambu and they went to the scene on 18/2/2022 from 7.30-8.30 pm. He took 6 photos, produced the photos and made a report together with his certificate. Bundles of 66 photos MFI 1611-66) report dated 15/03/2022-MF1 17 and he signed the report. He took the court through the bundle of photographs.
16. On cross examination he said that he did not know the accused person therefore he could not tell if he was there or not as no one had told him about him.
17. PW 9 No. 237018 IP Gladys Mbula Titus of DCI headquarters TOCU an Investigating Officer in this matter stated that on 18/02/2022 the officer in charge told her that there were foreigners being held in a residential house. At 16:00 hrs. with P.C Karimi they proceeded to the house, they found the gate closed. They broke the gate and they found a lady in the compound. They introduced themselves and she told them her name is Rosemary Nyambura and was employed to cook for visitors. They instructed her to open the house. In each room except the kitchen, they found foreigners and they could not-communicate in English or Kiswahili. They counted109 foreigners whom they suspected to be Ethiopians and one Kenyan Jamhuri hiding among the Ethiopians who told them he was employed by Hussein to keeps records. He gave them 4 books, three of them had names of Ethiopians and one had record of food stuffs. And receipt MF1 5 EXB 5. Receipts the food was being bought by Hassan Hussein MF1 6 (6a-f8) EXB 6(a-e) The other 3 books had names of foreigners.
18. After a while Kevin came and told them he was employed as a watchman by Hussein. While there they received a call that Husuman was on the way to the premises. He came in driving motor vehicle KBU 739 U silver in color Toyota Vitz. They informed Jamhuri that he should open the gate. Jamhuri opened the gate he drove inside the compound and on seeing the police officers reflective jackets he threw a phone which he was holding into a bush outside the gate but they recovered it. His car was searched, he had one sack of charcoal and one sack of rice inside the car at the front there was a brown envelope which had names of Ethiopians MF1 7, EXBT 7. They conducted a search on his person and recovered two mobile phones from his pocked, A Techno MF1 18 and KGTEL. (exhibit20). The TZ phone that the accused threw into the bush was produced as MF1 19, KGTEL recovered from his pocket. PC Kimiti prepared a certificate of entry and search which was signed by the witnesses who were present. After, the scene of crime was processed by Sgt. Masaka of Scene of crime. The victims were put in various police stations, Husman and his co-workers were locked up at Kasarani and Muthaiga.
19. On 23/02/2022 they made a request to the Embassy of Republic Ethiopia to come and interview the victims. Letter dated 23/02/2022. MFI 23 P EXB 23. ON 07/03/2022, we received a report from the Embassy confirming that the 108 were Ethiopians MFI 24. PEXB 24. On 23 rd and. 24th February they recorded 7 statements of the victims with assistance of the interpreter and on 24 th they prepared a memo and forwarded to the cyber for phone analysis. EXB memo dated 24/02/2022 MFI 25, PEXB. On 28 th February two persons were charged before court with the offence of trafficking.
20. PW 10 – Guyo Allamu Kheche. He testified that he knew Hussein Moche as a taxi operator. Stated that he received a call from CID that they had his car. He said that on 19/03/2022 at 16:50 hrs vide OB No. 69/19/03/2022 he had reported that the accused had gone missing with his car. He gave Hussein his car so that he could use it to run a taxi. He had the agreement which showed he gave him the motor vehicle dated 05/10/2021 MFI 55, EXB 55. He used to pay him 1500/= per month in cash. He had a log book for the motor vehicle which had his name- MF156, exhibit.
21. PW 11 No. 1065305 P.C Gerishon Kibara Rono, stationed at DCI cyber-crime Unit produce a forensic report of 8 mobile phones which were submitted to their office on 24/02/2022 from TOCU under the search warrant of IP Gladys Mbula. He produced exhibit MF1 51 summary reports (61 EXB A – accused’s mobile phone and captured through IMEI, S/N and simcard, importance to its case, there was communication with No. 0725659777 which is common it is saved as Siz Jane Later on the name changes to Viu Sasa. The communication was frequent. The number communicated with the techno phone the last time on 19/02/2022.
21. The report was the phone IMEI, SIMCARD, S/No of the Techno. It contained 365 call conversations 75 messages and 59 images. IME S/N there was communication with number saved as Siz Jane. Later on, the name changes to Viu Sasa, the communication was frequent. The number communicated with the techno phone the last time on 19/02/2022.
1. He produced the extract (b) the techno phone and the. number, [EXB 51J
2. Exhibit Al the contents are call conversation and text messages (EXB 52). The portion relevant is for PW9
3. Exother for some time but we have escaped my memory. So, we agreed to talk. I was also running a taxi business. So, he requested me to drop for him some luggage at a particular home. She promised to give me work.
DEFENCE WITNESSES
22. DW1 – Hussein Moche testified that he operates business of slaughtering goats and selling at Wangige market and he also operates a taxi business. He also stated that at the material day he had been requested by a customer whom he could not remember his name to drop for him a sack of charcoal and rice at a certain house. That upon reaching there his car was blocked by another car and he was ordered to alight then he was arrested and handcuffed. He said that he never threw a phone to the bush and he was not trafficking Ethiopians.
23. DW 2 Mulasha Mallo Chokol Mulasha stated that she had been married to the accused person for twenty-three years and they had four 4 children. On cross examination she said she does not accompany her husband to work.
24. DW 3 Halima Juma Cheme said that she had been married to Hussein Moche for the last 12 years and they have 6 children. She stated that the accused sells goat meat and also operates a taxi business within the home area.
25. DW 4 - Zainab Husuman and DW5 – Sophia Osmasn Mwale both daughters of the accused person testified that their father sells meat and operates a tax business.
26. DW 6 ID No. 29382988 Abraham Getununa Kura stated that Hussein Moche buys meat from him and other butcheries as well as operating a taxi business after 1.00 pm.
27. DW7 ID No. 32679927 Nuur Osman Gumbo said that they do business together with the accused person since the year 2019 but they do not write any agreement. He as stated that they both do not have license.
APPELLANT’S SUBMISSIONS
The Appellant; Office of Public Prosecution (ODPP) filed appeal against conviction of lesser offence and sentence and submitted as follows;
ISSUES FOR DETERMINATION
28. Under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
29. The Respondent was charged with two counts of the offence of Trafficking in Persons contrary to Section 3(1)(d) as read with Section 3(5) of Counter Trafficking in Persons Act which provides that: -
"A person commits the offence of trafficking in persons when the person recruits, transports, transfers, harbors or receives another person for the purpose of exploitation by means of (d) deception; section 3(5) provides,
"A person who traffics another person, for the purpose of exploitation, commits an offence and is liable to imprisonment for a term of not less than thirty years or to a fine of not less than thirty million shillings or to both and upon subsequent conviction, to imprisonment for life."
30. In framing the elements of a charge of trafficking in persons, Appellant was guided by the decision in Muhammad Asif vs. Republic (2017) eKLR where the Court identified that the evidence ought to point to whether the accused person has;
(a) Recruited, transported, transferred, received, held,
concealed, or harbored the victim, or exercised control, direction or influence over the movements of the victim, and
(b) By means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and
(c) Done this for the purpose of exploiting the victim or
facilitating their exploitation.
Whether the accused recruited, transported, transferred, received, held, concealed, or harbored the victim,
31. PW2 a minor testified that he travelled from Ethiopia and that when he reached Nairobi he was received by the Respondent. That he was taken to a house by the Respondent. He further stated that those without money were not allowed to leave the house or even shower. That while in the house, the Respondent gave him a phone to call his family to ask for money to facilitate his travel to South Africa.
32. PW3 a minor testified that it is the Respondent who received him in the forest and together in a motor-vehicle where the Respondent sat beside the driver, they drove to the subject house in Mugumo Estate. Further, that the Respondent gave him a phone to call home and ask for 320.000 Ethiopian money.
33. PW4 a minor testified that he was transported all the way from Ethiopia to Nairobi and taken to the subject house. That the following morning, the Respondent who he stated was in charge of the house gave him a phone to call home and ask for money. He stated that when the money was not forthcoming, the Respondent took him outside the house, painted his face red and took a photo and sent his uncle back in Ethiopia.
34. PW5 testified that he travelled to Kenya through Moyale and it was the Respondent who received them and took them to the subject house. Further, that when they reached Nairobi, the Respondent in his presence called a broker in Ethiopia to inform him that they reached Nairobi safely He testified that he was beaten by two men who they lived with to call his family and ask for money.
35. PW6 testified that he received instructions through the phone of a broker in Ethiopia from the Respondent to travel to Moyale. That he was told by the broker in Ethiopia that he would be received in Nairobi by a person who had a house and a vehicle in Nairobi and that was what happened the person that received him was the Respondent. He also testified that he was able to recognize the Respondent's voice as the one he had communicated with when he met him.
36. PW9 the Investigating Officer testified that a total of 108 victims were rescued from the subject house in Mugumo Estate and that some were minors as established by the age assessment reports. She also established that the other three Kenyans found in the house were employees of the Respondent and that they were related. She also established that Rosemary who was the cook was a sister to the tenant of the house one Mercy Wambui and PW7 produced a lease agreement and bank statement to ascertain the tenancy relationship PW9 also obtained call records between the Rrespondent and Mercy Wambui showing that there was constant communication between the two. All the victims corroborated each other's testimony to the effect that the Respondent was in charge of the house and all the occupants were under his command.
37. In the case of Muhammad Asif vs Republic (supra), the Court observed that.
"The offence of trafficking in persons captures the entire trafficking continuum, and engagement in just one of these trafficking "stages" is sufficient. Therefore, different persons or groups of people may be responsible for different aspects of the trafficking crime. The offence is thus formulated in such a way as to capture the different actors along the trafficking continuum, including those who do not directly exploit the victim's labour or services, so long as they knew their action was for the purpose of exploiting or facilitating the exploitation of a person.”
38. They further submitted that, whereas just a singular element was sufficient to prove charge of trafficking in persons, the Prosecution proved beyond reasonable doubt that the Respondent not only harbored the victims but he also assisted in the transportation, transfer and received the 108 victims. The prosecution further submitted that the second count was brought under section 3(3) of Counter Trafficking in Persons Act since the victims were minors and the section provides that:-
"The recruitment, transportation, transfer, harboring or receipt of a child for the purposes of ex
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