Court acquits seven foreigners serving life sentences for trafficking Sh1.3 billion heroin

Pakistan nationals at a Mombasa Court on January 31, 2022. [Kelvin Karani, Standard]

Six Pakistanis and an Iranian serving life imprisonment at Shimo la Tewa for trafficking of Sh1.3 billion worth of heroin have been set free after spending 11 years in jail.

This is after the High Court overturned the lower court sentence that had condemned the seven to jail.

Yousuf Yaqoob, Yaqoob Ibrahim, Saleem Muhammad, BhattiAabdul Ghafoor, Bakhsh Moula, Prabhakara Nair Praveen, and Pak Abdolghafar were set free by the Mombasa High Court.

They had been convicted and sentenced to life imprisonment on March 10, 2023, after a trial spanning close to 10 years, and have been in custody from the time of arrest.

According to the evidence by Kenya Navy officer, Major Athman Dengereko Kaifani, the six were aboard a ship, Armin Darya, that was intercepted on July 1, 2014, six nautical miles from Ras Ukowe between Kenya and Somali territorial waters.

The convicts were charged with trafficking in narcotic drugs, contrary to section 4 (a) of the Narcotic Drugs.

It was alleged that on diverse dates between July 2, 20l4 and July 18, 2014 at Kilindini Port Mombasa Berth Number 8 within Mombasa County, jointly with others not before court, they were found trafficking by conveying in the cargo deck of ship Amin Darya, also known as Al Noor, 377.224 kilograms of heroin valued at Sh1,131,672,000.

They were also charged with trafficking liquid heroin, to wit 33,200 litres valued at Sh189,000,000, and 2,4OO litres of diesel mixed with heroin valued at Sh1,440,000, all with a market value of Sh1,322,122,000.

The seven appealed the sentence and faulted the magistrate for convicting them in proceedings that were conducted in a language that they did not understand.

They also said a purported translator who masqueraded and was allowed by the court to participate in the proceedings did not produce any testimonials, credentials, or certification in proficiency and capacity to translate technical judicial proceedings for the benefit of all parties concerned.

While acquitting the seven, Justice Wendy Kagendo said that the whole case and conviction had a hand of the big brother, the undisclosed informer that led to the rubbishing of all the procedural laws.

Justice Kagendo said the case started with some intelligence, and it appears that someone out there was calling all the shots.

She said that was the only explanation as to why all rules of procedure were thrown out of the window, and noted it was not due to want of experience, as there were some of our best officers handling the matter.

“As stated above, there was the hand of big brother, the undisclosed informer, but we do not bend all our rules to please someone. I say this because from the proceedings, we can neither blame ignorance nor inexperience.  We had very senior and capable officers,” said Justice Kagendo.

Justice Kagendo said that the charge as drawn was defective and the elements were not proved.

She further said there were too many breaches of the law that the appellants cannot be said to have had a fair trial.  

The judge noted that, unfortunately, the ship was destroyed before any cross-examination was done, so the defence did not have a chance to challenge the findings

“We cannot rubbish all our procedural laws, say come what may, and damn the consequences.  I note that the appellants were elderly foreigners who could barely follow what was going on,” said Justice Kagendo.

She questioned how the captain and crew of the ship confessed to having the drugs to Chief Investigating Officer Hamisi Masa, yet the confessions were obtained from persons who could not understand the English language.

“If I dissolve a solid, say 5gms sugar, into a litre of water, can the entire litre of water be said to be a litre of sugar? Definitely not. That exaggeration of the quantity of drugs also affected the value and consequently the sentence that was meted out,” said Justice Kagendo.

She said the trial was conducted without due regard to the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) 1982 which is the mother law that governs all activities in national as well as international waters, as well as all other Conventions, Treaties and Agreements to which the Republic of Kenya is a Party and a Signatory, in furtherance of Article 2[5] of the Constitution of Kenya, 2010.

The judge noted that the seven foreigners were arrested, searched and traumatised with complete disregard to their status as foreigners, without a warrant, without the presence of a representative of their foreign mission or embassy staff, as well as absence of a legal representative to witness the horror of a search from July 2, 2014 to July 18, 2014.

The convicts said the magistrate denied them the right to an interpreter proficient in Farsi/Persian.