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Ruling on piracy trials illegal, top court told

Tuesday October 18 2011

By PAUL OGEMBA [email protected]

A judge’s ruling in a piracy case has been criticised as unlawful and a transgression of the Penal Code.

Public Prosecutions director Keriako Tobiko told the Court of Appeal that Mr Justice Mohammed Ibrahim erred in relying on scholarly articles instead of the law and existing judgments.

In his ruling, Mr Justice Ibrahim, now a Supreme Court judge, ended the prosecution of nine suspected Somali pirates on grounds that Kenyan courts lacked powers to deal with events outside Kenyan territorial waters.

Through special prosecutor Patrick Kiage, Mr Tobiko also accused the judge of deliberately delaying delivery of the judgment for eight months.

Mr Kiage argued that whereas the matter was a criminal offence, the judge used maritime commercial law to rule that Kenyan courts have no jurisdiction to try and prosecute piracy cases.

“The judge made the ruling based on the wrong law. There was something skewed about the authorities he relied on and one cannot help but feel it was a judicial pronouncement based on a doctrine presented by a university lecturer,” Mr Kiage said.


He accused Mr Justice Ibrahim of not considering an earlier judgment by Mr Justice Festus Azangalala, saying that it beats logic that the judgment could be referred to in many parts of the world, including the US, and yet fail to be referred to locally.

Mr Kiage described the judge’s ruling as reactionary, adding that he went ahead to give orders that were not even sought in the application.

Much anxiety

He said that the judge not only prohibited the prosecution of the suspects, but also issued a decree for an immediate and unconditional release of the suspects and repatriation to Somalia.

He said the misinterpretation of the law by the judge had caused the State much anxiety and grief, terming it a setback in the fight against piracy.

The special prosecutor submitted that it was now time for the Court of Appeal to correct the mistake.

The State has appealed against the judgment and is seeking a declaration that Kenya has the power and authority to prosecute suspected pirates.