Judge Dora Chepkwony will today rule on whether Feisal Mohammed will remain in custody pending appeal by the state.
Mohammed was charged alongside five others with being in possession of 1,024 pieces of ivory and elephant tusks worth Sh44 million.
He was found guilty by senior principal magistrate Diana Mochache and sentenced to 20 years imprisonment and fined Sh20 million.
But Chepkwony quashed the sentence and set aside the fine, terming them unconstitutional.
After the judgment, prosecutor Jami Yamina applied to the High Court to have Mohammed remain in prison pending the appeal against his acquittal.
Yamina said Mohammed had been marked as a flight risk and releasing him might prejudice the appeal. “We urge you to issue directives that Feisal remains in prison.”
After the ivory was recovered, Mohammed allegedly fled and sought refuge in Tanzania. With the assistance of Interpol, he was later arrested in Tanzania. But Mohammed, through his lawyer Taib Ali Taib, urged the court to dismiss the DPP’s application.
Taib said Mohammed is a free man who should be released. He said the Mombasa businessman will be available anytime the court wants him to appear before it.
On Saturday, DPP Noordin Haji expressed his dissatisfaction with the ruling. He said on Twitter that he is aggrieved with the judgment and will appeal against it.
Haji said although he respects the court’s decision, the prosecution respectfully disagrees with the conclusion reached. “Evidence presented at trial was sufficient to secure a conviction,” he said.
The DPP added he is confident the Court of Appeal will overturn the High Court’s decision.
The Kenya Wildlife Service is also dissatisfied with the judgment and was consulting its lawyers on fighting Mohamed’s acquittal. Chepkwony said evidence at the trial court had gaps and doubts.
She said the evidence was circumstantial, which ought to have been interrogated further.
In April, police accused Mohammed of being behind an international ivory poaching syndicate linked to a three-tonne haul of elephant tusks seized in Mombasa in June 2014.
Through his lawyer Taib, Mohammed accused a magistrate of destroying some court proceeding records. Taib said Shanzu senior principal magistrate Diana Mochache, who had convicted Mohammed, destroyed part of the proceedings for unclear reasons.
He said the records had been taken back to Mochache for clarification as her handwriting could not be understood by the person typing the proceedings.