A top prosecutor has said the Office of the Director of Public Prosecutions is mulling over the possibility of seeking leave from the High Court to file an application to enhance sentences for two convicts jailed for trafficking in drugs.
Senior Assistant Deputy Director of Public Prosecutions Alloys Kemo has told this to The Standard following Justice Njoki Mwangi's judgment of March 30, in which she dismissed an appeal by Ahmed Said Bakari.
Bakari and Clement Serge Bristol were found guilty of trafficking in heroin worth Sh29 million by Mombasa Chief Magistrate Julius Nang’ea on October 31, 2018. This after police said 2.028kg of heroin were found in a car while 7.6kg were hidden in the water tank of a yacht named Baby Iris.
In his judgment, Mr Nang'ea ordered Bakari to pay a total Sh3,005,000 or serve 21 years in jail.
Aggrieved by the decision, Bakari filed an appeal two weeks later claiming that the trial court had erred in finding that he was aware of the contents recovered by the police from the car he was driving.
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It was also his assertion that because he was neither the captain nor a crew member of Baby Iris, he could not be held liable for the contents found inside the yacht, which was under Serge's command.
The court was told that local and British officers who conducted the search for the drugs were not called to give evidence, and that the prosecution did not make any attempt to explain which specialised equipment was used in the recovery of the drugs aboard Baby Iris.
But the prosecution dismissed the assertion and said there was testimony from two local police officers who were part of the team that conducted the search. Photographs of the search and a search certificate were produced in court as evidence.
In her judgement, Justice Njoki pointed out that the prosecution’s evidence showed that the police were not just bystanders when the drug haul was recovered.
"The UK Border Police officers managed to locate the narcotic drugs using scanners and the local police did the actual recovery,” she said.
On the issue of President Uhuru Kenyatta’s orders to destroy Baby Iris, the court said the Executive did not encroach on the Judiciary’s territory in the destruction of the exhibit, given that there was substantial compliance with the law.
But Justice Njoki took issue with the Magistrate’s court, saying it gravely erred by failing to impose a fine equivalent to three times the value of the drugs Bakari was found trafficking in.
"This court has no powers to enhance the sentences that were imposed by the trial court without being moved by the Director of Public Prosecutions to do so. No notice of enhancement of sentence was filed by the said office,” the judge said.