- Thabit Jamaldin Yahya had gone to the Court of Appeal seeking leave to challenge his conviction at the Supreme Court.
- He had challenged his conviction at the Court of Appeal unsuccessfully.
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If you are convicted of murder and your recourse to the Court of Appeal fails, you have no luck at the Supreme Court.
An appellate bench in Mombasa consisting of Stephen Gatembu, Pauline Nyamweya and Jessie Lesiit fended off attempts to disturb this jurisprudence in a ruling rendered early last month.
The determination was significant as it buttons up the issue as to whether one convicted of murder can exploit avenues other than points of law to seek reliefs in the apex court.
In the case, Thabit Jamaldin Yahya had gone to the Court of Appeal seeking leave to challenge his conviction at the Supreme Court, claiming that his efforts were based on great public interest.
He had filed an application for a certification to enable him approach the apex court.
The plank of his case was that denying murder convicts a route to the apex court while other suspects convicted in the magistrate’s courts have up to three appellate avenues, including a route to the Supreme court, was discriminatory.
Yahya had been convicted on December 1, 2015 after being charged at the High Court in 2012 with killing one Mary Cheptirim at Bella Vista Hotel in Mombasa on May 15, 2012.
The High Court sentenced him to death.
He challenged the conviction at the Court of Appeal unsuccessfully. The basis of his initial appeal against his conviction was that the High Court relied on a weak identification mechanism and there was a huge possibility of error in the process.
“….[his appeal was] on grounds that evidence of identification was weak and unreliable; that there was discredited DNA evidence; that the conviction was based on hearsay evidence; that his defense was improperly rejected and that death sentence was harsh and excessive,” the court ruling reads.
The court disagreed with his first appeal.
Having being in incarceration for long, the Power of Mercy Committee had Yahya’s sentence commuted to life imprisonment by President Uhuru Kenyatta in 2016.
But in his Court of Appeal application for leave to approach the Supreme Court, he cited his death sentence as part of the basis for his efforts, describing it as harsh and unlawful, failing to mention that it had been commuted.
He had claimed that by the Court of Appeal affirming the conviction and sentence of the lower court, it was offending the Supreme Court’s decided law on the Muruatetu case.
The Muruatetu decision was that the mandatory death sentence is unconstitutional.
But the prosecution urged the court not to open the route of murder appeals to the Supreme court, cautioning that such a move would be ground breaking in opening a floodgate of appeals.
The appellate court disagreed with Yahya on all grounds he cited, explaining that nothing in his arguments was of great public interest to warrant disturbing the Supreme Court.
It said that the question of whether murder convicts are discriminated against by the law by not being allowed multiple avenues of appeal, unlike other offenders first arraigned before magistrate’s courts, was not raised at the High Court.
“This matter was neither raised before the trial court nor was it raised before this court. The applicant’s claim in that regard, that there is violation of Articles 27 of the Constitution which provides that every person is equal before the law and has the right to equal protection and equal benefit of the law, and also Article 50, was not raised by the applicant in the High Court or in this court,” the decision reads.
Also, the court dismissed his argument that it tacitly affirmed and reinstated the death sentence despite commutation by the President on October 24, 2016.
“… it is instructive that in his appeal before this court, the applicant, in addition to challenging the conviction, also challenged the sentence and asserted that the death sentence that was meted out to him was severe and excessive and that his mitigation was not considered. At no time did the applicant state or mention that the death sentence had been commuted,” the judges stated.
“It is somewhat intriguing that the applicant prosecuted his appeal before this court on the basis that the death sentence meted out was subsisting with full knowledge, and without any mention of the commutation, only to disclose, in the course of the hearing of this application, that it was commuted.”