[2015] KEHC 5384 (KLR)
The court found no error in the trial magistrate's exercise of sentencing discretion. The offence of piracy carries a maximum sentence of life imprisonment, and the seven-year sentence imposed was not harsh or excessive given the seriousness of the crime and its impact on international security and commerce. The...
Source-derived case information.
- Citation
- [2015] KEHC 5384 (KLR)
- Parties
- Appellant: Abdikadir Isey Ali & 8 Others; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 163 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed; sentence upheld
- Judges
- GO Shikwe
- Legal Topics
- Piracy Offences, Sentencing Principles, Mitigation Factors, International Security
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikadir Isey Ali & 8 Others
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the sentence of seven years imprisonment for piracy was harsh and excessive.
- 2 Whether the trial magistrate properly exercised discretion in sentencing the appellants.
- 3 Whether the period spent in remand and the appellants' status as first offenders warranted a reduction in sentence.
Ratio Decidendi
The court found no error in the trial magistrate's exercise of sentencing discretion. The offence of piracy carries a maximum sentence of life imprisonment, and the seven-year sentence imposed was not harsh or excessive given the seriousness of the crime and its impact on international security and commerce. The trial magistrate properly considered the period spent in remand, the appellants' status as first offenders, and mitigation factors. The court also noted ongoing efforts to repatriate piracy convicts to Somalia but held that these did not warrant interference with the sentence. Accordingly, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed; sentence upheld
Orders
- The appeal is dismissed.
- The sentence of seven years imprisonment is upheld.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 163 OF 2013
CONSOLIDATED WITH CRA. NO. 75 OF 2014, 74 OF 2014, 61 OF 2014, 60 OF 2014, 167 OF 2013, 166 OF 2013, 164 OF 2013, 165 OF 2013
(From Cr. Case No. 2127 of 2009 Mombasa CM'c Court Hon. Ole Tanchu- SRM)
ABDIKADIR ISEY ALI & 8 OTHERS.....................................................APPELLANTS
VERSUS
REPUBLIC..............................................................................................RESPONDENT
JUDGEMENT
The Appellants were convicted and sentenced to seven (7) years imprisonment for the offence of Piracy contrary to section 69 (3) of the penal code.
The particulars being that:-
“On the 22nd day of May 2009 in the internationally recommended transit corridor upon the high seas in the Central Gulf of Aden, jointly being armed with offensive weapons namely one AK 47 Rifle, three knives attacked motor vessel namely MARIA K and at the time of such act put fear in the lives of the crewmen of the said vessel”.
Being aggrieved by the sentence meted out on them, the appellants have lodged this appeal.
The grounds are principally that the sentence of Seven years was harsh and excessive. Considering that they were in remand for a period of close to four years.
Secondly, that they were first offenders. That they have acquired skills while in prison which can help them advance their status in life.
Further due to deploring prison conditions they have been subjected to chronic respiratory diseases.
That their country of origin Somalia has undergone great changes and life is near normal and they are willing to go back and be part of the transformation of their country.
I have noted that in this appeal the appellants are not represented. In the subordinate court they were represented by one Oruko Advocate.
The prosecution had asked for a deterrent sentence as the offence of Piracy was a serious one as it affects international security in high seas and also affecting tourism and international trade.
Counsel for the accused persons gave mitigation factors stating that the accused had been in custody for three years, they were young and were treated as first offenders.
The learned trial magistrate did note that the offence of Piracy carried a life sentence.
There having been in custody for three years was explained by the fact that the High Court had made a ruling stopping magistrate courts from dealing with piracy cases.
The magistrate also noted the accused acts caused trauma to the crew of the ship most of whom left employment.
I find no fault in the exercise of discretion by the trial magistrate in sentencing the appellants to seven years imprisonment . He had correctly observed that Piracy was a serious offence with national and international ramifications on security and International trade (commerce). It carries a maximum sentence of life imprisonment. The sentence of seven years cannot by any stretch of imagination be deemed as harsh and excessive. It is instructive to note that times have changed in Somalia. Life is near normal. The on-going programme to return the convicts on piracy cases back to Somalia so as to serve their remaining terms there ought and should be expedited. This will enable them to be visited by their families and relatives. It will also help decongest our prisons.
The upshot is that there is no good reason to disturb the sentence.
The appeal is dismissed. The sentence is upheld.
Judgment delivered dated and signed in open court this 10th day of March 2015.
…....................
M. MUYA
JUDGE
10TH MARCH 2015
In the presence of:
State Prosecutor Mr. Jami
The appellants present
Court clerk Musundi