The controversy in the trial of piracy cases in Kenya took a new turn yesterday. Resident Magistrate Timothy Ole Tanju ordered that a case against four suspected pirates accused of attacking a Kenyan fishing dhow, be taken to the High Court for a ruling over jurisdiction.
Tanju made the ruling after lawyer Jared Magolo, representing Noor Ali Mohammed, Abdirahman Ise Mohammed, Mohammed Osman Farah and Keitan Abdi Muse, challenged the court to try the suspects under the Merchant Shipping Act. Magolo argued that the Act recommends that the High Court determines piracy cases.
The magistrate said he was in doubt in view of the professionals mentioned in the Act, and directed the file be placed before Chief Magistrate Rosemelle Mutoka, for her to refer it to the High Court. "I object to the suspects' trial at the subordinate court, since the Act under which the prosecution has based its case, dictates that piracy be handled at the highest court," Magolo said.
But Senior State Counsel Alexander Muteti opposed the application saying the Act does not apply in regards to where the cases could be handled.
Muteti said it was not the magistrate's court to make a determination over the court's jurisdiction. The suspects were charged with attacking a fishing dhow, christened Sherry on September 20 last year at the high seas, and causing fear amongst the lives of the crew. The pirates were arrested and taken to the Malindi Police station, after the crew raised the alarm.
The group was then transferred to Mombasa on September 30 where they were charged with piracy. "The charges against the four should not have been preferred to them at the subordinate court as the act is specific that piracy related matters, should only be handled at the High Court," Magolo said.
He said the suspects should be released since the Attorney General has failed to comply with the requirement. But Muteti said releasing the suspects will not be in order as they had committed a crime and ought to be sentenced. The case will be mentioned before the Chief Magistrate today.