Win for DPP as Supreme Court allows detention of Iranian suspects

The Director of Public Prosecutions Noordin Haji on Friday won a major hurdle after the Supreme Court allowed him to continue holding two Iranians pending an appeal he has filed.

Five judges of the court stayed the decision acquitting Ahmad Abolfathi Mohammed and Sayed Mansour Mousavi and ordered that they be held by the police, pending the determination of the appeal.

The judges said since there is no extradition between Kenya and Iran, it would be difficult to get them back after repatriating them. “In the circumstances, we allow the application for stay of execution of the respondents’ acquittal and repatriation,” the judges said.

The court led by Chief Justice David Maraga said it was a matter of common notoriety that Kenya has in the past suffered horrendous terrorists attacks and as a result, lost hundreds of innocent Kenyans and thousands left maimed and seriously injured with personal disabilities and permanent scars.

“Due to the nature of the terrorist attacks the Kenyan public has for a time lived in fear and felt insecurity in their own motherland. The crime of terrorism undermines our national security as well as the peace and tranquility of the people of Kenya and all other people who live within our borders,” they added

They said the intended appeal involves a matter of general public importance and accordingly, grant the DPP leave to appeal against the acquittal.

Mr Abolfathi and Mr Mousavi were set free in January after the Court of Appeal quashed their 15-year jail term stating that there was no sufficient evidence to link them to the bomb making material recovered in 2012. They had been accused of possessing a lethal explosive identified as RDX and a Nairobi court sentenced them to life imprisonment but it was reduced to 15-years after an appeal at the High Court. The sentenced was later quashed on the second appeal.

The DPP through lawyer Waweru Gatonye and Duncan Ondimu argued before Justices Maraga, Mohamed Ibrahim, Smokin Wanjala, Jackton Ojwang’, and Njoki Ndung'u that they should not leave the country, pending the appeal.

In the ruling, the five judges agreed that Kenya has no legal provision in the constitution or statute that directly speaks to the power of an appellate court, be it High Court of High Court or Supreme Court, to grant orders committing to prison a person who has been acquitted, pending the hearing of an appeal.

However, they said, the Supreme Court of not handicapped as to be totally curtailed from granting such an order. They said time was ripe for Parliament to consider such a legislation.

They directed the decision be served upon Parliament, Attorney General, DPP and other stakeholders such as Law Society of Kenya and Law reform Commission, to consider the legislative framework.