A Mombasa Court on Wednesday dismissed an application filed by the prosecution seeking to use statements recorded by two persons facing charges of being in possession of ivory.
The prosecution wanted to use the statements in the case against Mr Feisal Mohamed Ali who is being accused of allegedly being found in possession of 2,152 kilograms of ivory worth Sh44 million on June 5 in Tudor, Mombasa County.
Mr Mohamed was charged alongside Ghalib Sadiq Kara, Abdul Halim Sadiq, Pravez Noor Mohamed and Abdulmajeed Ibrahim.
Assistant Director of Public Prosecutions (DPP) Alexander Muteti in his application wanted to use the statements by Mr Kara and Mr Sadiq.
DPP Muteti told the court that it was necessary to test if the statements recorded are confessions or not.
The two accused persons through their lawyers, opposed the DPP’s application saying the statements were recorded by a police officer who was not qualified, thus they should not be used against their clients.
Mombasa Principal Magistrate Diana Mochache in her ruling said the statements were not recorded by the accused but on behalf of the accused by the police, making the recorded statements inadmissible.
The magistrate dismissed the prosecution’s request saying the recorded witness statements did not meet the constitutional threshold to warrant admission in the trial.
“The statements were recorded by a police corporal but the constitution requires that for any recorded statement to be used in court, it shall be recorded by chief inspector of police or any rank above this,” said magistrate Mochache.