East Africa

Kenya releases seized rosewood after 7-year court battle

By ANTONY KITIMO

By BRIAN OCHARO


Thirty-four containers of rosewood valued at more than $200,000 impounded at the port of Mombasa for over seven years will now be shipped to Hong Kong.

The endangered wood, which belongs to the genus Dalbergia species and is protected under the Convention of Illicit Trade of Endangered Species (CITES), has been at the port since 2014 following a longstanding court battle between the shipper and three Kenyan government agencies.

Documents seen by The EastAfrican indicate that the consignment was allowed to leave the Mombasa port on December 29, 2021, and is scheduled to arrive at Tanjung Pelepas, Malaysia, on January 22.

Kenya Revenue Authority (KRA) says it has waived all custom warehouse rent and released the consignment to Shihua Industry Alliance Co. Ltd.

“Once KRA procured a customs warehouse rent waiver for the company, it was directed to ship out the goods within 14 days,” said Njeri Kabura, the KRA manager in charge of Manifest, Exemptions, Exports and Transshipment in the Customs and Border Control Department.

Court documents show that the consignment should have left the port in October this year.

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Ms Kabura said the delay in shipping resulted from the company choosing to strip the containers and cross stuff the goods, which the taxman had opposed.

“KRA had proposed that the consignment be scanned to ascertain the contents as the process of stripping and cross-stuffing would be resource and time consuming,” she said.

Earlier, KRA had opposed the release of the consignment until it was furnished with requisite permits and a certificate of origin of the wood.

The agency also sought documentation indicating the owner of the goods and taxation before it could release the containers.

KRA had argued in the court documents that, according to Kenyan law, “a person seeking to export, import or deal in any way in such restricted goods must present the requisite permits to the customs officers before being allowed to deal in any way with such goods.”

The Kenya Forest Services (KFS) and the taxman have been fighting in court with Shihua over the more than 1,104 pieces of rosewood since 2014 when the consignment was intercepted.

Four years later, on November 29, 2018, the Mombasa court ordered KFS to release the consignment to the company.

According to court documents, Shihua claimed the cargo originated from Madagascar and was being shipped to Hong Kong. The company said it had permits to engage in the trade and transportation of the same.

But KFS opposed the request to release the consignment on the grounds that the goods were of an endangered species and that the company had no authorisation to deal in the same.

KFS also challenged the court’s jurisdictions to handle the matter, which the presiding magistrate later dismissed.

The case was first filed before Mombasa Senior Resident Magistrate Emmanuel Mutunga by Shihua.

Before the court could issue a release order, the magistrate ordered a forensic analysis and sampling since the wood was suspected of being endangered.

The forensic analysis conducted by KFS, Kenya Wildlife Services and the National Museum of Kenya showed that the wood belonged to the genus Dalbergia species protected under the CITES.

The species was included in CITES Appendix III on September 28, 2011, meaning that state parties to the convention ought to prevent its exploitation through cooperation to control its trade.

An analysis by the court showed that the particular species of rosewood was endorsed to be endangered and classified as such under CITES on October 4, 2017.

CITES was operationalised in July 1975. Kenya became a signatory to the convention on June 22, 1979.

According to the convention, Shihua Industry Alliance was obligated to show the permits authorising reshipment from Kenya to Hong Kong.

Documents filed by Kenya Wildlife Services were locked out of the ruling since it had not prosecuted its application when the magistrate was making his decision.

“As a court, I am alive to the fact that endangered species ought to be protected under all peers but legality over the same ought to be taken into considerations as to its dealings. I find the company’s application merited and allows it,” the magistrate said.

KWS was ordered to release the cargo, which was loaded in 34 containers, to the owner.

But the wildlife agency appealed the ruling at the High Court.

The appeal was filed before Justice Anne Omollo, where the KWS faulted the magistrate for ordering the release of the consignment classified as endangered.

“The magistrate erred in law and fact in holding that the Convention of Illicit Trade of Endangered Species (CITES) is not applicable in this case,” KWS said.

It also faulted the court in holding that the company had the right of ownership over the consignment.

But the judge found that before 2016, the rosewood species was categorised under CITES Appendix III. During the 7th Conference of Parties held between September 24 to October 4, 2016, in Johannesburg, South Africa, the species was moved to Appendix II.

The application under Appendix II was operationalised on January 2, 2017.

According to the court, flora and fauna listed under appendix II include species not necessarily threatened by extinction but in which trade must be controlled to avoid utilisation incompatible with their survival.

“The consignment did not fall under the category of species under Appendix II at the time it was confiscated. Further, even if the KWS felt it belonged to species under that appendix, the company was only expected to show that it had the requisite permit for the transshipment as trade on flora and fauna in that category was not completely banned,” Justice Omollo said.

The judge then dismissed the appeal by KWS, stating that its argument before the court was of no assistance to its case.

“I find there was no contrary evidence provided by the appellant to contradict evidence by the company, thus the magistrate was within the law in making an order for the release of the seized cargo. I find the appeal filed lacking in merit,” Justice Omollo said.

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