Thabit Jamaldin Yahya listens to Judge Martin Muya's verdict on December 1, 2015 at a Mombasa court.
A second attempt for freedom by Thabit Yahya Jamaldin, who is serving the death penalty for carrying out a terrorist attack in Mombasa in 2012, has been rejected despite citing his health status.
Jamaldin, a former hotelier in Saudi Arabia, had petitioned the court to review his death penalty for a definite sentence on the basis of suffering a disability.
High Court Judge Wendy Micheni however rejected his bid in a decision delivered on January 23.
"I, therefore, find that the orders sought are not merited and as a result, the application is dismissed," she stated.
While rejecting Jamaldin's request for a review of the death sentence, the judge noted that the disability he suffered was sustained during the commission of the offence.
The judge also noted that the level of disability Jamaldin suffered is not as severe or incapacitating to the extent that it can be said to be an affront to his dignity, as he recovered whilst under the care of prison authorities.
The court also noted that it was not specified whether the inmate required any other treatment, which he could not get in custody.
"The nature and circumstances of the offence is another factor to be taken into account and having done so, I am not satisfied that the applicant ought to be released as of now even though the sentence review report was positive," said Justice Micheni.
Jamaldin application
He filed this application for review of his sentence last year.
In a bid to convince the court for early release, Jamaldin, through the assistance of his advocate Chacha Mwita, produced a medical report stating the level of disability he had suffered and his current health status.
The report dated January 16, 2025 and prepared by Dr Wachira Thiong'o, an orthopedic surgeon, shows that Jamaldin has multiple scars on his left limb (foot, leg, and thigh) arising from the injuries sustained and from surgical interventions to fix the fractures.
It further shows an amputated big toe of his left foot and a fully extended stiff knee on the left side with no degree of flexibility and limited range of motion at the left ankle.
According to Jamaldin and his advocate, it was not desirable to hold extremely ill people in custody, especially where they cannot access relevant health care.
They argued that such an action not only breaches their divinity but is also an unwelcome expense to the state.
Convict's past
Fresh details filed in court show that Jamaldin, a second born in a family of four, had a successful career in hospitality in Saudi Arabia before returning to engage in terrorism.
The 40-year-old convict worked as a hospitality officer in one of the posh hotels in Saudi Arabia between 2009 and 2011.
However, he never returned to Saudi Arabia after he was arrested in 2012 over the terrorist attack in Mombasa. He has been in custody since then.
A probation report produced in court shows that Jamaldin is remorseful for the offence and that he has learned his lessons for the time he has been in custody.
"Jamaldin confides to have reflected upon his life and commits to be a law-abiding citizen in the society. His family is concerned with his health status and they are ready to welcome him back, help his resettlement and reintegration," said the report filed in court in December last year.
Second appeal
This was the second time Jamaldin had attempted to secure freedom from the hangman’s noose for the grenade attack at the popular Bella Vista Club in Mombasa in 2012, that led to the death of Mary Cheptirim, a security guard at the club, and lef others with injuries.
Jamaldin was in 2016 sentenced to death for the murder of Cheptirin. He then petitioned the Court of Appeal seeking to overturn the same.
However, the appellate court upheld the conviction after considering the circumstances of the case and the role Jamaldin played in the terrorist attack.
They found no reason to disturb that sentence and consequence of which they dismissed the appeal.
The appellate judges stated that Jamaldin was correctly identified by an eyewitness and through DNA analysis of items found at the scene as one of the perpetrators of the crime.
Evidence indicated that Jamaldin confessed to being present at the blast site, with an eyewitness stating that he had refused to be searched, left, and then returned 10 minutes later with the grenade that he threw and detonated.
The same witness verified seeing Jamaldin, the individual who threw the grenade at the club's entrance, at the hospital receiving treatment after sustaining injuries from the same object he had been seen throwing.
The court noted that DNA examination conducted on several items recovered from the scene of the crime, including grenade safety pins and personal items such as a toothbrush, confirmed Jamaldin as one of the attackers.
Additional items, including a pistol, a magazine, and nine bullets, were confirmed to belong to Jamaldin.
Thabit Jamaldin Yahya leaves a Mombasa court in March 2016 after he was sentenced to death for a terrorist attack. A judge and a lawyer were implicated in plans to have the suspect released on a reduced bail amount after he was arrested.
The court also confirmed that Ms Cheptirim died as a result of the injuries she sustained from the explosion.
The evidence against Jamaldin was that on May 15, 2012, he and his accomplice entered the club but refused to be frisked.
They left but returned a few minutes later, threw a grenade that exploded, followed by gunshots and subsequent blasts.
Also Read: Grenade attack man gets death sentence
Jamaldin claimed he was near the club on that day, explaining that he was selling wares and was equally shocked by the explosion like the other partygoers.
He stated that he was injured in the same way as the others when the grenade was thrown at the club's entrance.
However, after listening to the case, the High Court convicted Jamaldin after a series of evidence linked him to the grenade.
Expert evidence led by detectives from the Federal Bureau of Investigation (FBI) and the Office of the Director of Public Prosecutions established that he had played a key role in the terrorist attack.
Descriptions of the attackers were supported by DNA analysis of the samples taken from Jamaldin and items recovered from the scene.
His clothes and a bag that he had placed on a bus headed to Nairobi led the High Court to conclude that he had played a key role in staging the terrorist attack.
He was then sentenced to death. Aggrieved by the conviction and sentence, Jamaldin preferred an appeal at the Court of Appeal.
Jamaldin lamented that the trial court relied on hearsay and that he was convicted based on evidence that did not meet the required standard of proof.
Mr Mwita also argued that the DNA evidence was disjointed and that the court ignored prosecution evidence that had exonerated him from the terrorist attack.
Jamaldin concluded his submission by stating that the sentence imposed on him was severe and excessive.
However, just like the High Court, the Court of Appeal held that the evidence presented against Jamaldin left no doubt that he played a role in the terrorist attack and that the woman died as a result of the grenade hurled during the attack.
Jamaldin was sentenced to death in May 2016 following the terrorist attack that could have caused several civilian deaths had the attack proceeded as planned.
