A record of proceedings from a magistrate’s court against businessman Feisal Mohamed Ali who is seeking to challenge a 20-year jail term imposed on him after being found guilty of being in possession of ivory valued at Sh44 million has errors, the High Court heard.
On Thursday, lawyer Taib Ali Taib representing the businessman noted that the record (proceedings) had typographical errors and missing parts.
“We need to have a proper and correct record to enable us to proceed,” Mr Taib told Justice Dora Chepkwony sitting in Mombasa.
Mr Taib’s sentiments were echoed by his colleague Mr Gikandi Ngibuini who requested that they be allowed to sit with court staff and prepare a proper record with all proceedings and correct the typos.
During a previous mention of the case, through Mr Taib, Mr Ali had made an application to amend his petition and be allowed to file a supplementary affidavit.
Mr Ali wants the conviction against him set aside saying the trial court found out that evidence by crucial prosecution witnesses was shaky and used it to acquit his co-accused yet used the same to convict him.
Through Mr Ngibuni, Mr Ali said the trial court erred in law and fact and that it convicted him on the basis of mere suspicion and arrived at the decision which was meant to appease the public.
“In other words, the appellant (Mr Ali) was made the sacrificial lamb so as to appease the public,” said Mr Ngibuini.
Shanzu Principal Magistrate Diana Mochache jailed Mr Ali and in addition imposed a Sh20 million fine on him.
She acquitted the accused on the second count of dealing with the ivory without a license.
Mr Ngibuni argues that the magistrate’s court erred in law and fact saying its judgment lacks logic, reason or rhyme as there was no consistency in the manner it handled what it described as “puzzles” in the prosecution’s case.
According to Mr Ngibuini, the court erred since it was heavily influenced by adverse media reports since the discovery of the ivory which the complainant (Kenya Wildlife Service) was the prime author.
He added that the facts surrounding removal of the alleged ivory from premises of Fuji Motors was not proved hence it is doubtful whether any (ivory) was therefor found.
Mr Abdul Halim Sadiq, Mr Ghalib Sadiq Kara, Mr Praverz Noor Mohamed and Mr Abdulmajeed Ibrahim who had been charged alongside Mr Ali were acquitted for lack of evidence.
In her judgment, Ms Mochache said a combination of chain of events when considered as whole, pointed to Mr Ali as the owner of the ivory that was recovered at Fuji Motors.
“I am satisfied the prosecution adduced all circumstantial evidence available against the accused person, this court finds Feisal Mohamed Ali guilty of the offence of being in possession of wildlife trophies and convicts him accordingly,” said Ms Mochache.
In sentencing Mr Ali, the magistrate noted that poaching had become a menace to the country and it was an international concern.
Ms Mochache said the rate at which the elephants were being killed in the country was worrying and that if something is not done, the future generations will only hear of the existence of the elephants.
Mr Ali was charged with being in possession of 314 pieces of ivory weighing 2,152 kilograms.
He is said to have committed the offence on June 5, 2014 at the business premises of Fuji Motors East Africa Limited along Tom Mboya Avenue, Tudor Estate Mombasa.