Six Pakistani nationals who were found guilty of trafficking heroine worth Sh1.3 billion and sentenced to life imprisonment have been unconditionally freed by the High Court.
Justice Wendy Kagendo of the High Court in Mombasa
quashed the conviction and sentence as was handed by the magistrate court
citing a defective charge sheet, prosecutorial lapses and breaches that
compromised the trial.
Yousuf Yaqoob, Yaqoob Ibrahim, Saleem Muhammad, Bhatti Abdul Ghafoor, Bakhsh Moula and Prabhakara Nair Praveen were arrested in 2014 and charged with trafficking 377.2kg of heroine valued at Sh1131672000.
They were sailors of a ship in which authorities also
found 33200 litres of liquid heroine valued at Sh189 million and another 2400
litres of diesel mixed with heroine valued at Sh1440000.
In total, the narcotics had a street value of
Sh1,322,122,000.
The Pakistanis were charged alongside Pak Abdolghafar
who is said to be from Iran.
They were all convicted and sentenced to life imprisonment
by Mombasa chief magistrate Martha Mutuku in 2023 after the state called 35
witnesses includes KDF soldiers.
However, the convicts moved to the High Court
challenging both their conviction and sentencing.
They told Justice Wendy Kagendo that the magistrate
had erred in law and fact by convicting the accused persons in proceedings that
were conducted in a language they did not understand.
They said a purported translator who masqueraded and was allowed by the court to participate in the proceedings did not produce testimonials, credentials or certification in proficiency and capacity to translate technical judicial proceedings.
They also faulted the evidence produce saying its
chain of custody could not be ascertained.
It was also their ground of appeal that they were taken to court to take plea on account of an alleged retrieval of a suspicious package which had not been subjected to further examination.
Most importantly, the appellants said the evidence
upon which the conviction and sentence accrued had been destroyed hence no
evidence to sustain the charge, conviction and sentence.
The ship from which the sailors were arrested was impounded by Kenya Navy officers in conjunction with maritime police unit and port officials.
The ship was later destroyed at sea in the presence of then-President Uhuru Kenyatta in 2014.
It was also the convicts' claim that they were convicted without due regard to international treaties, especially on the laws of the sea. They also cited the absence of a representative of their foreign mission in Kenyan or embassy staff during their trial as an error in law.
During their arrest, a navy officer said they had received intelligence that the ship was trafficking narcotics.
It was directed to the port and was anchored by a KDF captain and the sailors arrested.
Justice Kagendo found inconsistencies in the amount of heroine as stated in the charge sheet following testimonies by two government analysts.
The analysts testified that the amount of heroine in the liquid was a mere 0.019 per litre yet it was stated as a litre of heroine.
“If I dissolve a solid, say 5mgs of sugar into a litre of water, can the entire litre of water be said to be sugar? Definitely no. That exaggeration of the quantity of drugs also affected the value and consequently the sentence that was meted out,” Kagendo said.
She also faulted the trial court for relying on only one translator despite protestations by the defence. “What I must emphasize is that the right to a fair hearing is non-derogable.”
The court also found that the state did not prove that all the ship’s crew members acted with one common intention given they were all hired separately.
The court said it was even possible that owner of the ship may have loaded it with narcotics without the knowledge of the crew members.
“In this case, the captain may have been complicit but it was not proved that all the crew members were aware.”
But the fatal blow appears to be the destruction of the ship under the watch of President Uhuru Kenyatta despite a court order stopping the same.
The judge noted that the case started with some intelligence and that it appeared someone was calling the shots.
“That is why our rules of procedure were thrown out of the window. I have noted that it was not due to want of experience, as we had some of our best officers handling the matter. This culminated in the much-publicised destruction of the vessel by the executive despite an existing court order,” Justice Kagendo noted.
All these lapses appear to have worked against the prosecution's case.
“We cannot rubbish all our procedural laws say come what may and damn the consequences,” the judge said.
She said the foreigners were elderly and could barely follow what was going on.
“As stated above, there was the hand of a big brother, the undisclosed informer, but we cannot bend all our rules to please someone.”
In the end, the court found that the charge was defective and the elements thereof not proved.
“Further there were too many breaches of the law that the appellants cannot be said to have had a fair trial. They cannot be described as minor breaches which can be ignored. Accordingly, the appeal succeeds,” Justice Kagendo ruled.
“The conviction is quashed and the seven appellants acquitted of the charge of trafficking in narcotic drugs. The sentence is set aside and the seven appellants may be set at liberty,” the court said in the judgment dated May 29.
