BY SAM ALFAN.
The High Court has barred prison authorities from granting a convicted terrorist remission, pending the hearing of a petition by the Director of Public Prosecutions Renson Ingonga.
Justice Lilian Mutende allowed the application by the DPP stopping the release of Dr Mohamed Abdi alias Abu Fidaa.
“An order of stay of the release of Mohamed Abdi Ali alias Abu Fidaa from custody be and is hereby granted pending hearing and determination of the instant application and subsequent appeal,” ordered Judge Mutende.
The court further barred Kenya Prison Service from releasing the jailed terrorist Dr pending appeal.
“An order for stay of grant of remission by Kenya Prison Service to Mohamed Abdi Ali alias Abu Fidaa be and is hereby granted pending hearing and determination of the instant application,” ruled the judge.
Dr Abdi was slapped with a 12 year sentence for terror related charges but has since served eight years in custody.
The DPP is apprehensive Dr Abdi might apply for remission, a move that will see him walk to freedom.
The judge directed all the parties to appear for hearing on April 29.
In the application, the DPP through Senior Principal Assistant Prosecutor Duncan Ondimu wants the court to suspend grant of remission by the Kenya Prison Service to the terrorist pending the hearing and determination an appeal.
“It would be just and fair that the accused remains in custody pending the hearing and determination of this application and the subsequent appeal and if the matter is not certified urgent and ex parte stay orders of the grant of remission, the Appeal shall be rendered nugatory,” Ondimu told the High court.
Ondimu submitted that the convict was arrested on the 29th April, 2016 and subsequently charged on May 3, 2O16 where he was charged with several counts arising from the Prevention of Terrorism Act (POTA).
The terrorist was on April 12, 2024 convicted and sentenced to 12 years in prison on all counts. The trial magistrate ordered the sentence to start running from the date of arrest.
“The sentence passed by the trial Court was not proper and did not take into consideration the principles of sentencing as provided under POTA, Case Law and Sentencing Policy Guidelines,2023,” Ondimu told the court.
He added that based on Section 46 of the Prisons Act CAP 90 that provides for remission of sentence, there is a very high risk of the appeal being rendered nugatory by release of the convict before hearing of the appeal.
The convict, he said, was in custody from the time of arrest and was never granted bail by the Trial Court and the High Court and there is a likelihood of him absconding if he is released from custody.
Ondimu added that the offences for which the terrorist was charged with are serious offence and the Court should examine whether his acquittal in count 3, 5 and 6 was proper.
He said the DPP is dissatisfied and aggrieved with part the Judgment of the Trial Magistrate Martha Mutuku and has already requested for a copy of the typed certified proceedings.
He added that the sentence passed by the trial Court was not proper and did not take into consideration principles of sentencing as provided under POTA, hence manifestly illegal.
He added that based on Section 46 of the Prisons Act CAP 90 that provides for remission of sentence, there is a very high risk of the appeal being rendered nugatory by release of the Convict before hearing of the appeal.
“There was no Risk Assessment Report from the National Counter Terrorism centre (NCTC) as alleged by the Respondent and there is need for the Report in determining whether the Respondent is entitled to remission and the convict was in custody from the time of arrest and was never granted bail by the Trial Court and the High Court and there is a likelihood of him absconding if he is released from custody,” court heard.
According to the state, the offences for which the convict was charged with are serious offences and this Court should examine whether his acquittal in count 3, 5 and 6 was ProPer.
He faulted the trial Magistrate for failing to consider materiai facts while acquitting the Convict in counts in three counts, among others.
The DPP submitted that the magistrate failed to appreciate recovery of materials based on online materials and various social media platforms, the appreciation of the legal regime in relation to information technology investigation and recovery of materials thereof from electronic gadgets, the appreciation of the elements of the offence of solicitation in support of terrorism offences.
He further said magistrate Mutuku failed to appreciate the elements of the offence of promotion of terrorist activities and the direction does not have to be implemented to the entire extent
Ondimu submitted that the charges are very serious offence and relates to issues of national security and Magistrate failed and or neglected to take into account principles of sentencing as provided under POTA.
