Garissa court orders retrial two in child trafficking case

The Garissa High Court has ordered the retrial of two women who pleaded guilty to child trafficking and sentenced to pay a fine of Sh30 million or serve 30 years in jail by a Mandera magistrate.

Judge George Dulu on Friday allowed an appeal by the two women and quashed the conviction further setting aside the imposed sentences.

“I order that a retrial be held on the same charges before the same court. In this regard, both appellants will remain in custody and taken to Mandera principal magistrate’s court for retrial of same charges,” ruled Judge Dulu.

The two women, Ms Halima Adan Hassan and Ms Kheirta Ibrahim Ali, were sentenced on May 13, 2018.

MAGISTRATE ERRED

Through their lawyer, Mr Clifford Kimathi Muthuri, they argued that the magistrate erred enormously in delivering the judgment.

Mr Muthuri said his clients were aggrieved by the judgment delivered by Mandera Senior Resident Magistrate Peter Areri.

Both women were convicted on their own plea of being guilty of human trafficking.

They were charged with receiving a 10-year-old girl from Somalia between May 25 and 29, 2018 and conspiring to further transport the minor to Nairobi through deception.

Ms Hassan faced two other charges including lying to a public officer and getting official documents by false pretence.

She was sentenced to pay a fine of Sh100,000 or in default to serve one year in prison.

NO CAUTION

They faulted the magistrate for failing to caution them of the severity of the charges they faced before entering a plea of guilty.

They further argue that the sentence imposed on them was harsh and excessive.

“The learned magistrate erred in law and fact by failing to exercise due care in ensuring that the appellants properly understood the charges as read to them by the interpreter,” reads an affidavit by their lawyer.

Both women argued in their appeal that they did not understand, through the court interpreter, the charges against them and that the magistrate erred by failing to consider their responses to the offences.

FASTING

Their lawyer argued that both women were sentenced during the holy month of Ramadan when they were fasting and that failure to admit them on bail would render the appeal nugatory since Ms Hassan was breast feeding and Ms Kheirta was five months pregnant.

Judge Dulu said he only allowed the retrial since if the magistrate had warned the appellants on the seriousness of the offence, then they would (probably) have changed their minds and pleaded not guilty.

“The only serious mistake is the magistrate failing to warn the appellants about the seriousness of the offences. Courts have held that it is important for trial courts to warn unrepresented accused persons in such circumstances,” said Judge Dulu.

The case will be mentioned on July 25.