Court sets aside acquittal of suspected terrorist
What you need to know:
- This followed a successful appeal by the Director of Public Prosecutions against the acquittal of the suspected terrorist by the then Shanzu resident magistrate Anastacia Ndung’u.
- Mr Yamina further argued that Ms Ndung’u erred in law by acquitting the accused having found the accomplice’s evidence was credible and corroborated hence the same could form a basis for a conviction.
The acquittal of suspected British terrorist Jermaine Grant by a magistrate of nine charges among them attempt to register a birth certificate has been set aside by the High Court in Mombasa.
This followed a successful appeal by the Director of Public Prosecutions against the acquittal of the suspected terrorist by the then Shanzu resident magistrate Anastacia Ndung’u.
Mr Justice Martin Muya on Tuesday allowed the appeal, set aside the acquittal and substituted it with a conviction on all the nine charges.
“It was clear, it was the accused who wanted to procure a birth certificate, there is no doubt as to his intention and pivotal role he played,” said Mr Muya.
The judge also noted that the magistrate did not deliberate on the issue of a joint offender noting that two prosecution witnesses participated in commission of the offences.
In mitigation, the accused urged the court to have leniency on him saying since his arrest in 2011 he has been in custody.
Through lawyer Chacha Mwita, the accused said the period he has stayed in custody is enough to cater for sentencing.
“The court should take into consideration that the accused has been co-operative, there is no entry in the trial court that he has been uncooperative,” said Mr Chacha.
Mr Chacha also urged the court to consider a co-current sentence as a matter of law and practice.
Principal prosecutions counsel Jami Yamina said the accused had been convicted and sentenced before at the chief magistrate’s court.
Mr Yamina who filed the appeal on behalf of the DPP urged the court to sentence the accused consecutively.
In acquitting Mr Grant, the magistrate said the prosecution did not prove the charges against the accused beyond reasonable doubt.
“In the end, I agree that the accused may be a prime suspect in the crime that took place, but a conviction cannot be founded on mere suspicion however strong,” said the magistrate.
She further stated that the evidence adduced by the prosecution falls far below the threshold of standard proof.
In the petition of appeal, Mr Yamina said the magistrate erred in law by acquitting Mr Grant having found offences had been committed hence the acquittal amounted to a miscarriage of justice.
Mr Yamina further argued that Ms Ndung’u erred in law by acquitting the accused having found the accomplice’s evidence was credible and corroborated hence the same could form a basis for a conviction.
Mr Chacha had opposed the appeal by the DPP citing among other reasons that the acquittal of his client was proper.
The accused jointly with others not before court, being a foreigner willfully and unlawfully attempted to procure registration of a Kenyan birth certificate.
The offence was committed between September 19 and 26, 2011 at Tausa within Taita Taveta county.
Justice Muya will deliver his on Wednesday.
