The judgment of the six Pakistanis and an Iranian charged with trafficking heroin worth Sh1.3 billion will wait for a month until the ship assistant captain gets well.
The Pakistanis have been in Shimo la Tewa Prison since 2014 after their ship Armin Darya was intercepted on the high seas by American forces.
The much-anticipated judgment was postponed On Monday to February 21 after Yousuf Yaqoob, the assistant captain of the vessel fell ill.
Chief Magistrate Martha Mutuku said the judgment was ready but could not be read in the absence of Yaqoob.
Yaqoob has been charged alongside Mohamed Saleh, Yakoob Ibrahim, Saleem Muhammad, Bhatti Abdul Ghafour, Baksh Moula and Pak Abdolghaffer.
Also charged in the case are three Kenyan shipping agents - Khalid Mohamed, Mohamed Osman, and Maur Bwanamaka.
The sailors were charged on July 3, 2014, with trafficking 377.2 kgs of heroin valued at Sh1,131,672,000 in granule form. They are also facing a charge of trafficking 33,200 litres of heroin worth Sh189 million.
The sailors had challenged the jurisdiction of Kenyan courts to try them arguing they were arrested on the high seas in the Kenya-Somali waters. They argue the Kenyan government agencies may have planted the said narcotics on their vessel in their absence.
They told the court that the prosecution has based its case on mere suspicions and lacked evidence to sustain a conviction.
Through their lawyer Jacqueline Wahenya, the sailors said the ship was blown up, under the supervision of president Uhuru Kenyatta, an act they said was in contempt of court as the case had not started. They said they never got to know the place the said narcotics were recovered by security agents.
“The upshot is that a conviction can't be sustained because there were two explicit orders not to destroy the vessel. It was destroyed in contempt of court and in the circumstances in confirming the subject material prejudices the accused and cannot be said to have had a fair trial,” said Wahenya.
The seafarers said that it will be prejudicial to convict them without according to them the chance to be cross-examined aboard the vessel Armin Darya so as to establish where the alleged drugs were found by a multi-agency security team.
“There is no connection whatsoever, of the alleged heroin found on deck, with the accused. It could have been PW1 (a police witness) who was alone at the deck or other members of the state agencies who planted the package found on the deck,” said Wahenya.
She said the police proceeded to drain the ballast tanks on July 7 in the absence of the accused who were under the custody of the police.
Wahenya said the logbook and records on the deck of the ship that contained the movements of the vessel and the duties of the accused were all destroyed. In the absence of those documents, she said, the accused persons are prejudiced.
Wahenya said the essential ingredients that brought the accused persons to court have not been proved beyond a reasonable doubt.
“The upshot of all this is that the prosecution hasn't presented a case against the accused and it is our prayer they are acquitted under Article 155,” said Wahenya.
She said the vessel sailed from Sharjah in the UEA passing through Kuwait and then Somalia and all the routes are not known to be used to transport narcotics.
But Senior Assistant DPP Alexander Muteti said: "Kenya forms part of the United Nations International Drug Control treaties and has a duty to enforce them in the fight against drug trafficking."
“Even though drug trafficking is not a crime that enjoys international jurisdiction such as illegal fishing, the offense is nevertheless triable under the principle of territorial objective on the question of jurisdiction,” Muteti told the court.
He noted that narcotics present a serious threat to any nation and the proceeds of drug trafficking can flow to other criminal activities.
Muteti urged the court to disregard a testimony that the accused were innocent seafarers whose voyage and anchorage was interfered with.
The DPP said that the evidence so far given links all the suspects to the offence.
“We will ask the court to put a verdict of guilty and sentence them in accordance with the law which attracts a sentence of life in prison,” said Muteti.
He said the vessel and the narcotics were produced as evidence by the court. Muteti said on the matter of the fate of the vessel, the accused had the opportunity to cross-examine witnesses.
Muteti said while the duty of each accused person was to ensure the success of the voyage, they aided and abetted in the storing and conveyancing of the drugs.
Lawyer Jared Magolo, who represents the three Kenyan suspects, said the prosecution has not made a case beyond reasonable doubt against them.
He said his clients were never present when the said heroine was recovered and tested.
“As far as the Kenyans are concerned, Section 47 was not met. How does the state simply disregard procedural matters in law? You cannot trust them to faithfully tell the truth,” said Magolo.
Magolo said the Kenyans were involved after the ship had docked and the seafarers arrested.
“It is our submission that they have failed to bring any evidence other than trying to victimise the Kenyans trying to offer shipping agent services after they were contacted by the port agent and police to offer services to the seafarers,” said Magolo.