Judges bar convicted terrorist from going to Supreme Court
Thabit Jamaldin Yahya listens to Judge Martin Muya's verdict on December 1, 2015 at a Mombasa court. He has been sentenced to hang after being found guilty of murdering Ms Mary Cheptirim at Bella Vista Club in May 2012.
A terrorist sentenced to death seven years ago for murder has been barred from proceeding to the Supreme Court to challenge it.
Court of Appeal judges Gatembu Kairu, Pauline Nyamweya and Jesse Lesiit said Thabit Jamaldin Yahya’s request had no merit and dismissed it.
Yahya was sentenced to death for murdering security guard Mary Cheptirim in a terrorist attack at the Bella Vista club in Mombasa. He had claimed that the intended appeal to the Supreme Court raised matters of general public importance.
The Court of Appeal ruled that whether Yahya’s identification as the assailant was free from error was not a matter that the Supreme Court should be troubled with.
It also said that the issue of whether the appellant and people charged with murder in the High Court are discriminated against and do not get equal treatment under the law had not been raised in the trial court nor before appellate judges.
The court also said that the appellant’s claim that articles 27 and 50 of the Constitution were violated was not raised in the High Court or before appellate judges.
“To the extent that that question did not arise in the High Court or in this court and to an extent it has not been [the] subject of judicial determination by either of the two courts, it is not, in our view, a matter [on] which certification can be granted,” the judges said.
They noted that at no time did Yahya state or mention that the death sentence he received had been commuted.
“It is somewhat intriguing that the applicant prosecuted his appeal before this court on the basis that the death sentence meted out was subsisting with full knowledge and without any mention of the commutation only to disclose in the course of the hearing of this application that it was commuted on October 24, 2016,” the justices said.
Yahya had argued that he was convicted on the basis of being identified by a single witness without independent corroborative evidence.
He argued that conviction should not be based on suspicion regardless of whether the offence was terrorism-related and that the Supreme Court needed to pronounce itself on the issue of equal treatment of suspects under the law.
Prosecutors had opposed Yahya’s application, arguing that he failed to demonstrate that the intended appeal to the Supreme Court raised matters of general public importance.
They argued that the issue of identification arose in the trial court and was addressed under settled legal principles.
Yahya was charged with the murder of Ms Cheptirim at the Bella Vista club in Mombasa on July 16, 2012.
He was tried in the High Court and convicted on December 1, 2015 before being sentenced to death.
Yahya appealed against the conviction and the sentence on the grounds that the evidence related to identification was weak and unreliable and that the DNA evidence used was discredited.
He was linked to the attack by personal effects, including a toothbrush, and blood samples collected at the crime scene.
The results of the analysis showed that Yahya’s DNA was found on the toothbrush, firearm, magazine and bullets found at the scene of the grenade attack.
He also argued that the conviction was based on hearsay, that his defence was improperly rejected and that the death sentence was harsh and excessive.
The High Court sentenced him to death in 2016 after finding that he was directly linked to the attack.
He challenged the decision in the Court of Appeal, which upheld the sentence.
In dismissing his last appeal, the Court of Appeal found witness evidence consistent that he was identified as the assailant on the day of the attack and that the offence had been proved to the required standards.
