Prosecutors block release of Kenyan ‘ivory kingpin’ Ali

The Director of Public Prosecutions has managed to halt the release of a Mombasa businessman charged with being in possession of two tonnes of ivory.

This is after High Court judge Martin Muya granted an application by the DPP’s office on Thursday to stay an order for the release of Mr Feisal Mohamed Ali on a Sh10 million cash bond with a surety of similar amount.

Principal Magistrate Justus Kituku had on Wednesday granted Mr Ali, also known as Feisal Shahbal, bail on medical grounds despite his earlier attempts to avoid justice. The move attracted international outrage, with conservationists describing the magistrate’s decision as “ridiculous”.

Ali was arrested in Tanzania in December having fled Kenya shortly after the discovery of 2,152 kilograms of elephant ivory in June 2013.

Assistant DPP Alexander Muteti appeared before Justice Muya in an ex-parte hearing (without all the parties present) seeking reversal of the lower court’s decision. He asked the court to order that Mr Ali remain in custody until his appeal is heard and determined.

Defence lawyers Cliff Ombeta, Jared Magolo and Michael Oloo appeared in court, however, and the Judge heard them. They opposed the application saying it is an infringement of the constitutional rights of the accused person.

“This attempt by the prosecution to come on an ex-parte application on a matter that touches on the rights of an accused person was wrong and unconstitutional,” Mr Ombeta argued. “Whenever matters of the rights of persons are heard, the suspect’s lawyer must be given a right to defend them.”

However, Justice Muya granted the stay application and allowed the parties to appear before him today to argue the appeal. He directed the DPP to serve the defense with the reversal application for the defense to prepare to respond.

In his application, Mr Muteti argued that principal magistrate Justus Kituku erred by allowing release on bond on grounds that the suspect is unwell.

“He completely ignored the fact that he (Feisal) is a fugitive who was brought to court under a warrant of arrest,” said Mr Muteti.

He added: “We submit that the accused person was — several months after the complaint was registered in court — arrested outside the country, effectively outside the jurisdiction of the trial court and, therefore, under the circumstances he remains prima facie a flight risk.”

Mr Muteti further argued the trial magistrate ought to have considered the unique circumstances of the case, including its nature, impact and seriousness, before admitting the suspect to bail.

He stated that both the magistrate and the defence are alive to the fact that Feisal went on the run and questioned whether “the exercise of discretion was judicious in approach when balancing the interests of Feisal verses the interests of the public in light of the peculiar circumstances of this case”.

Principal magistrate Kituku granted the bond on the grounds that “the accused is a sick man who requires specialized treatment”. The court noted that it was guided by a medical report and a favourable pre bail report.

The magistrate further said that court is not convinced that the seriousness of the offence in the case was a reason to deny the accused bond.

He noted that others charged alongside the accused are out on bond.

Mr Ali faces another charge of dealing with the tusks without a licence.

Prior to being charged, there was a warrant of arrest in force against him. He has been charged alongside Mr Abdul Halim Sadiq, Ghalib Sadiq Kara, Praverz NoorMohamed and Mr Abdulmajeed Ibrahim.

The offence is alleged to have been committed on June 5 last year at the business premises of Fuji Motors East Africa Limited situated along Tom Mboya Avenue, Tudor Estate Mombasa.