State ordered to pay terror suspect Sh670,000

 

Sheikh Sharif Abubakar alias Makaburi and a supporter after the High Court in Mombasa awarded him Sh670,000 for unlawful consfication of his property by the police. [PHOTO: GIDEON MAUNDU/STANDARD]

By WILLIS OKETCH

Mombasa, Kenya: The State has lost a suit against a terror suspect.  It was ordered by Mombasa High Court to pay Sh670,000 in damages for conducting an illegal search for weapons and drugs on June 23, 2011.

In the ruling the court declared that the Anti-Terrorism Unit (ATU) does not have the power to detain electronics and other goods seized from suspect’s house.

The amount is likely to go up because Justice Maureen Odero who issued the order said the State should pay the defendant, Sheikh Sharif Abubakar alias Makaburi, this amount ‘plus interest in court’s rates from today’s date until payment in full.’

Yesterday, Justice Odero ordered the State to pay Sh400,000 in general damages and Sh270,000 as ‘special damages’ plus interest at the conclusion of Miscellaneous Application 168/2011 filed by Makaburi three years ago.

Items seized

She awarded the damages after finding that the ATU despite having obtained a warrant to search Makaburi’s house for exhibits, they failed to declare to the court items seized from the house.

During the said raid police seized a computer and other electronic equipment from Makaburi’s house in Mombasa for inspection, which the court found reasonable but faulted the unit’s failure to declare the seizures and lengthy confiscation of the property.

She said the items were only released after an application by Makaburi adding that ‘any item seized from a lawful search ought to be presented to court as soon as it is reasonably practicable to do so.’

Justice Odero argued that although police had a lawful warrant to search Makaburi’s house and acted within the law to seize goods, they tainted their efforts by detaining the items illegally or in violation of Section 121 of the Criminal Procedure Code.

Search warrant

“A warrant is not a licence for the police to seize property and keep the same in their custody for as long as they wish,” the judge said adding if the police needed to keep the goods for further analysis they ought to  have declared them to the court and sought permission for further retention.

Makaburi went to court in August, 2012 asking the court to declare the search warrant issued by a Mombasa court illegal.

He said the warrant did not specify items to be confiscated by the police following intelligence that he had a bunker where he kept guns, military uniform, drug and explosives.

He complained that the police who raided his house while he was away, took his computers, electronic equipment and other items not specified in the search warrant.

He also wanted the court to declare their entry into his house on June 23,  2011 based on defective search warrant a violation of his rights.

“I want the court to declare the search warrant issued on June 23 2011 declared invalid for failure to specify the offence under investigation,” said Sheikh Shariff.

But Justice Odero said there was nothing wrong with the search warrant.

The judge dismissed Sharriff’s complaint that the police should have not seized items that were not specified in the search warrant.

“My own view is that the warrant allowed the police to seize any article which they reasonably believed could be used to commit, perpetuate or conceal crime,” said the Judge.

 “If the police needed to conduct further analysis of the seized items they needed to sought proper authority,” added Justice Odero.

She said it was not upon the police to decide when to return the items and dismissed Chief Inspector Abednego Kilonzo’s argument that the police could not retain the items because a forensic analysis had not been done by Cyber Crime Unit.