Six Pakistani nationals, who were found guilty of trafficking heroin worth Sh1.3 billion and sentenced to life imprisonment, have moved to the High Court seeking to be released unconditionally.
In their petition, they want the High Court to decide that they have served their sentence by virtue of being in custody since 2014 when they were charged.
The petitioners want a declaration that in the alternative, they can be jointly repatriated to their country of origin at their own expense or that of the government of Pakistan.
They have sued the attorney-general, director of public prosecutions and the inspector-general of police.
Through their lawyers, they argue that they have been in custody since July 2, 2014, exceeding 11 years without their pre-trial detention being considered in sentencing.
The petitioners, who are challenging the constitutionality of the life sentence imposed by a magistrate’s court, argue that failure to account for time served in custody violates the Criminal Procedure Code which they say provides that a sentence must consider time spent in custody prior to conviction.
They are also relying on the judiciary sentencing policy guidelines which they argue underscore that failing to account for pre-trial detention leads to excessive and disproportionate punishment contravening the principle of fair administration of justice.
“The petitioners invite the court to factor in the fact that they have been in custody for the last 11 years since the institution of the case against them hence they should be released and repatriated to their country of origin at their own expense if need be,” part of the petition states.
They further argue that their prolonged pre-trial detention constitutes a violation of their rights to freedom and security and that the acquittal of other co-accused persons highlights discriminatory and arbitrary treatment against them.
The petitioners also argue that the prosecution’s case relied heavily on the ship as the central piece of evidence but it was blown up at the sea allegedly in connivance, irreparably destroying critical evidence.
They say that the decision of the trial court is a violation of the principle of the least severe sentence as provided for in the constitution.
They want the High Court to quash the life sentence against them for being inconsistent with the provisions of the constitution and have them repatriated to their home country having served their sentence since 2014.
The two further argue that the imposition of a life sentence without proper consideration of mitigating factors such as their advanced ages, prolonged incarceration during trial and their right to rehabilitation and reintegration to the society violated their right to a fair trial.
“The petitioners assert that the trial court, while properly finding that it had jurisdiction under the constitution failed to exercise that jurisdiction in a manner that safeguarded their fundamental rights as foreigners thereby rendering the trial and subsequent sentencing unconstitutional and invalid,” they stated.
The petitioners also seek a declaration that charges levelled against them were illegal and unconstitutional because they failed to meet standards set out in the Constitution.
In sentencing the accused in March 2023, Chief Magistrate Martha Mutuku also considered the transnational nature of the offence, rampant drug abuse problem among the youth in the country and the quantity involved.
The accused jointly with others not before court were found trafficking by conveying in the cargo deck of ship Amin Darya also known as Al Noor 377.2 kilograms of creamish granular heroin, 33,200 litres of liquid heroin and 2400 litres of diesel mixed with heroin.
They committed the offence on diverse dates between July 2 and 18, 2014 at Kilindini port berth number 8 within Mombasa County.
In her judgement, Ms Mutuku ruled that the accused were culpable of the offence.
Ms Mutuku said that the accused who were crew members of a ship Amin Darya also known as Al Noor failed to exonerate themselves from the offence and did not state who had sent them.
The magistrate noted that the country had jurisdiction to try the accused who were arrested in the high seas.
She further noted that the destruction of the vessel through an executive order did not in any way affect the case since investigators collected and preserved satisfactory evidence for the court to convict the accused.
