BY SAM ALFAN.
The appeal filed by two terrorists hangs in the balance following it’s opposition by the Director of Public Prosecution.
DPP wants the High criminal Division court to uphold the earlier decision by the trial court which had sentenced Mohammed Ahmed Abdi and Hussein Hassan Mustafa to 18 and 33 years respectively.
The two had been found guilty of helping islamist militant attack a shopping mall in 2013.
More than 60 people died during the attack on Westgate shopping complex in Nairobi.
Through Senior Principal Prosecutor Duncan Ondimu added that taking into account all the evidence on record adduced by the prosecution and in the circumstances of the case, the Prosecution has discharged its burden.
“The Prosecution evidence was not in any way discredited by the defense during cross-examination. The Trial Court rightly convicted the appellants,” submitted Ondimu.
Ondimu further told the High Court that both Abdi and Mustafa in their submissions have not stated the reason why they are of the opinion that the sentence was harsh and excessive.
“It is clear that the trial Court considered both mitigating and aggravating circumstances in passing the sentence and the trial court further considered the period that the appellants were in remand,” added Ondimu.
The defence during cross-examination and their submissions sought to point out that there were several contradictions and inconsistencies in the Prosecution’s case.
“we do submit that there were no contradictions nor inconsistencies and even if they were there, they are minor and do not go to the root of the prosecution case hence this Honourable Court should ignore them,” Ondimu submitted.
He further added that the minor inconsistencies (if any) were satisfactorily explained and this shows that prosecution witnesses were truthful.
During the trial, videos were played in court and it is clear that the videos played in court were for the use of instigating commission of or preparation to commit a terrorist act.
The Trial Court stated that “… It was not just one video but several of them with content clearly calling or encouraging others to take up arms against people referred to as infidels. Indeed, there is evidence that the scene of the attack, the attackers referred to the victims as infidels. Other videos showed a demonstration of how a terrorist attack can be executed.”
According to the court documents, Abdi had visited the website “Al-Kataib” an Al-Shabaab website which produces propaganda videos and specifically visited training series in Kiswahili for AK-47 rifle and site visited by Mustafa was titled “Ambush of Bordate, Alshabaab. Another site visited by Mustafa was “Abu Musad Al-Zarqawi Eid Khutibah”.
Ondimu further submited that Abdi and Mustafa refused to sign the inventory because he knew the contents inside the laptop were articles intended to be used for terrorist acts.
According the Principal prosecutor, the two convict also gave contradictory evidence on when he first saw the laptop and in examination in chief he indicated that he saw it the following day at ATPU, while under cross exam he stated that he saw it in court for the first time, questions that were not put to the arresting officer and the investigating officer who could have confirmed that position.
Abdi and Mustafa were charged on the November 4, 2013 with twelve counts arising from the Prevention of Terrorism Act (POTA) and pleaded not guilty.
The Prosecution tendered evidence through forty six (46) witnesses and on the January 14, 2019 the appellants and one of their co-accused were found with a case to answer.
One accused person was acquitted and two gave sworn testimony. Abdi called one witness.
In the year 2020, Abdi and Mustafa were found guilty and were sentenced. For count 2 each were sentenced to eighteen years imprisonment, count 3 Abdi was sentenced to eighteen years imprisonment, count 5 and 6 Abdi was sentenced to fifteen years imprisonment, count 12 the 2nd appellant was sentenced to eighteen years imprisonment.
Being dissatisfied by the Trial Court Judgment, the filed the appeal before the High Court challenging the decision by the trial court.
They will know their fate on December 13 when Justice Grace Nzioka will deliver her decision on whether to uphold the trial verdict or not.
