(Appeal against the conviction and sentence in Mombasa Chief Magistrate’s Court in Criminal Case No.1255 of 2014 as consolidated with Criminal case No.1528 & Criminal Case No.1493 of 2014 22 nd February 2023 . [ Hon. Mutuku Chief Magistrate]
J U D G M E N T
BACKGROUND AND REPRESENTATION
On the 21 st of March 2023, the firm of Browne and Browne Advocates, filed a document dated 20/03/2023. It is headed, PETITION OF APPEAL. It was however just a one-page document whose contents indicate that actually, it is a notice of intention to appeal. It was in respect to the 7 Appellants.
That document was accompanied by an email, also dated 20/03/2023, in which the said firm requested the Chief Magistrate Mombasa, to supply them with the certified copies of the proceedings and judgment in Criminal Case Number 1255 of 2014.
On the 23/03/2023, the Firm of Muthee Soni and Associates filed
a Petition of Appeal on behalf of the 6 of the Appellants. It is dated 23/03/2023 and it raised 7 grounds of appeal. It was in respect to 6 of the Appellants. Probaker Nair Pravever was omitted.
Separately on 26/07/2023, the firm of Omondi Ogutu and Associates filed an application dated 26/7/2023 being Mombasa High Court Misc. Application number E098 OF 2023 praying for extension to file an appeal out of time. They annexed a petition of appeal in respect to Pak Abdolghafer.
The 2 files were mentioned severally as the record was being prepared.
On 22/07/2024, Mr. Rajoro Advocate then appearing for the 6 th Appellant indicated that the record was now complete. The court directed that it be served on all the parties.
At this point, there was some push and pull over the representation, but eventually the other law firms ceded the representation to the firm of Browne and Browne Advocates to represent the 1 st to the 6 th Appellants who are said to be Pakistanis.
The firm of Omondi, Ogutu and Co. Advocates remained on record for the 7 th Appellant said to be from Iran.
It was also agreed that the two appeals being Mombasa be consolidated and the later file was closed.
The other significant issue was the application for bond pending appeal that the firm of Brownie and Browne filed. The same was however abandoned so that we concentrate on the main appeal.
Eventually directions were given that the now consolidated appeal would be heard by way of written submissions.
The issue of the death of one of the crew members Usman Gani during the arrest, search and seizure of the vessel also came up. We had a few mentions and the OCS Kilindini police station made some efforts which he updated the court during the mentions. That issue remained unsettled.
In the meantime, I called for a social inquiry report to help address some of the concerns raised such as the death of that Usman and the ill health of some of the aged appellants.
The reports headed sentence review report were filled by Mr. Muthoka, a probation order.
Ms. Peris Ogega, the learned advocate for the Respondent raised some concerns over the same since they were headed ‘Resentencing reports ‘yet the court had called for a social inquiry reports.
The court granted the respondent leave to file further submissions in respect to those reports which they did.
THE CHARGE
The Appellants were charged with the offence of trafficking in narcotic drugs, contrary to section 4 (a) of the Narcotic drugs and Psychotropic Substances Control Act No. 4 of 1994.
The particulars of the charge were : -
On diverse dates between 2 nd day of July 20l4 and 18 th July 2014 at Kilindini Port Mombasa Berth No. 8 within Mombasa County, jointly with others not before court were found, trafficking by conveying in the cargo deck of ship AMIN DARYA also known as AL NOOR narcotic drug namely Heroin to wit 377.224 kilograms of creamish granular heroin valued at Kshs.1,131,672,000/-, liquid heroin to wit 33,200 liters valued at Kshs. 189,000,000/= and 2,4OO litres of diesel mixed with heroin valued at Kshs.1,440,000/- all with a market value of ksh.1,322,122,000/- (one billion, three hundred and twenty-two million, one hundred and twelve thousand shillings) in contravention of the said Act.
The state called a total of 35 witnesses and Appellants gave their defence. They were convicted and sentenced to life imprisonment on 10 th March, 2023, after a trial spanning close to 10 years. The Appellants have been in custody from the time of arrest.
THE CASE IN SNAPSHOT
From the evidence, on record, the genesis of this case is some intelligence that (PW 5) Major Athman Dengereko Kaifani had received prior to 01/07/2014. Consequently, on 01/07/2014 he intercepted a ship at 20.20 hrs. at Ras Ukowe. PW 5, who was then the commanding officer of the Kenya Navy Vessel; Nyayo, said he spotted and contacted the ship through the Universal Channel used by all Mariners. His evidence was that he was at 6 Nautical Miles from Ras Ukowe and the other ship was 6 Nautical Miles ahead of him.
PW 5 testified that the crew of the vessel he contacted was very co-operative and they gave their details as name: Alnoor registered in Bashir, Iran carrying white cement. He said he found this information in convenient (sic) within his intelligence that the ship by that name was trafficking in narcotics. He therefore reported his find through the command and shadowed the vessel up to Kipini where he handed over to Major Phillip Muluma (PW 11) on 02/07/2014 at 0.556 am.
Major Phillip was then the commanding officer of the Kenya Navy Vessel – Umoja and after taking over from PW5, they escorted the vessel together with his crew including PW 6, Captain Kipkorir Keter.
PW6 testified that he was also aboard the Kenya Navy Vessel Umoja. That on 03/07/2014, he noted the ship they were escorting had changed cause from ‘210’ to 190’. He contacted the vessel who said the agent had told them to proceed to Zanzibar. PW 11 Over heard this conversation and he took over and directed the ship to go to Mombasa.
Subsequently, (PW 7) Captain Ali, was called to captain the ship. He was escorted by the Officer in Charge Kilindini CP Mbaya, 3 other officers from the Maritime police unit (PW10, PW 9 and 12.) These 4, meet the rescue and captained it to the Mtongwe Anchorage. Later that day, at 3pm. PW 8, Ian Abdulaziz –a KPA Marine Pilot, shifted the ship from the Mtongwe Anchorage to Berth number.
According to the prosecution the search on the ship began on 3/07/2024 at the Mtongwe berth where a quick search was conducted by Chief Investigator Gerald Mutiso (PW 25). The documents such as passports PEXT 81-90 were recovered. The search then continued on 04.07/2014 after the ship was piloted to the berth number 8. Between the 4 th and the 7 th of August 2024, the search team offloaded and sifted through some 258 one tone bags of cement and other small bags of genuine cargo on the ship’s cargo deck.
The 7 th of July 2014 marked the turning point of the search as it yielded the results being the recovery of the “suspicious package” PEXT 7. Following this find, there appears to have been some confessions from the crew that there were similar bags in the ship’s ballast and the diesel tanks.
Samples were taken from the recovered bag, the ballast water, and the diesel and were taken for analysis.
Eventually all the water and diesel were pumped out and more suspicious substance recovered. The same was sampled, tested and the accused persons charged in court.
In the intervening period some Kenyan agents/ or people said to be connected to the ship and its cargo were arrested and charged. 30. The trial court, however, upon a full hearing acquitted this group. These were: A10, A11 and A12, the three locals, who according to the prosecution, were supposedly part of the local network being shipping and clearing agents.
The trial court had earlier on in the ruling at the close of the prosecution case, on 23/11/2017, found that A6 and A8, who were on board the subject vessel at all material times had no case to answer. The court found that there was no evidence that the accused were official crew members and that in fact they were apprentices and that consequently they could not be held responsible for the cargo the ship carried and could not therefore have been trafficking in any narcotic drug that may have been on the vessel.
Consequently, only the crew members were convicted hence this appeal.
The other notable highlights of the case were the death of one crew member Usman and the much-publicized destruction of the vessel and its cargo.
ROLE OF THE APPELLATE COURT
It is now well settled law that the appellate court's role is to review the trial court's decision, re-evaluate the evidence, and make its own independent findings, ensuring justice and fairness, while acknowledging the trial court's advantage of seeing and hearing witnesses:
The Court of Appeal in Chwanya –Vs- R Cr. Appeal 70 of 2021 (2024) KECA 391 ; cited comparative common law jurisdictions as demonstrated in the decision of the Supreme Court of India in Ganpat vs. State of Haryana (2010) 12 SCC 59. 4. where the court set out the principles to be borne in mind by a first appellate court while dealing with appeals and stated thus:
There is no limitation on the part of the appellate Court to review the evidence upon which the order appealed against is founded and to come to its own conclusion.
The first appellate Court can also review the trial court’s conclusion with respect to both facts and law.
It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.
When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.”
GROUNDS OF APPEAL
As earlier pointed out, there were two sets of grounds of appeal; they can be summarized inter alia, as follows: -
The learned trial magistrate erred in law and in fact by convicting the accused persons in proceedings that were conducted in a language that they did not understand; a purported translator who masqueraded and was allowed by the court to participate in the proceedings did not produce any testimonials, credentials or certification in proficiency and capacity to translate technical judicial proceedings for the benefit of all parties concerned;
The learned magistrate erred in law and fact by relying on evidence whose chain of custody could not be ascertained to convict and sentence the appellants/applicants.
The learned magistrate erred in law and fact by relying on evidence whose origination, source or chain of custody could not be ascertained or verified to convict and sentence the appellants/applicants.
The Appellants/Applicants were ordered to be taken to Court to take Plea purely on account of an alleged ‘retrieval’ of a ‘suspicious package’ [page 51 record of proceedings] which had not been subjected to any or further examination, thereby prejudicing the entire process
The leaned trial Magistrate erred in law and in fact by convicting and sentencing the appellants to life imprisonment by relying solely on her own assessment but not borne out by the evidence which, in any event, was flawed.
The learned trial magistrate erred in law and fact by relying on planted evidence whose search and collection was in the absence of the appellants’/applicants’ legal counsel’s representation, which was not made available as a matter of right.
The learned trial magistrate erred in law and fact by shifting the burden of proof to the appellants.
The trial court destroyed the evidence upon which the conviction and sentence accrued by reason of which the Appellants are held in the absence of any evidence that sustained the charge, conviction and sentence.
The record of proceedings does not contain evidence of the real particulars of the ship that was destroyed at sea by presidential executive order, whether it was Al Noor or Amin Darya
The appellants/applicants were arrested, searched ad traumatized with complete disregard to their status as foreigners, without a warrant, without the presence of a representative of their foreign mission or embassy staff, as well as absence of a legal representative to witness the horror of a search from 2 nd July 2014 to 18 th July 2014.
The trial was conducted without due regard to the provisions of the United Nations Convention on the Law of the Sea [UNCLOS] 1982 which is the Mother law that governs all activities in national as well as international waters, as well as all other Conventions, Treaties and Agreements to which the Republic of Kenya is a Party and a Signatory, in furtherance of Article 2[5] of the Constitution of Kenya, 2010.
The destruction of the evidence, in particular the shelling and blowing up of the vessel, which vessel had been ‘intercepted’ and unlawfully arrested while on international waters, in the middle of the sea in the full glare and witness of the whole world while the trial was still underway, on the orders of the head of state of the republic of Kenya who witnessed the exercise… was a clear indication that the case the accused were facing had already been determined.
That the learned magistrate erred in law when she failed to find that the key ingredients of the offence laid out under section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No.4 of 1994 were not established.
That the learned magistrate erred in law and misdirected herself in law totally ignoring all the issues before her by way of submissions and/or fact at the time of trial where the accused person was denied the right to an interpreter proficient in Farsi/Persian.
That the learned magistrate erred in law and in fact when she held that the circumstantial evidence on record linked the Appellant with commission of the offence in question whereas extenuating factors in play weakened the whole case against him.
That the learned magistrate erred in law and in fact in disparaging and/or disregarding the Appellants defense consequently shifting the burden of proof to the Appellants.
THE TRIAL
The prosecution called a total of 35 witnesses while for the accused persons swore affidavits and they were crossed examined. They also called one witness.
THE EVIDENCE
As noted above, the respondent called a total of 35 witnesses, they were:
PWI Hamisi Salim Masaa – Senior Assistant Commissioner of Police. He was the lead investigator and he deployed others.
PW 2 William Kailo Muyoki – A Government Analysist. He analysed several samples and prepared his report EXT. 44.
PW 3 John Menga. Also, a government analyst, he prepared several reports which he produced as PEXT 11, 12, 27, 33 and 37.
PW 4 – Patrick Mugo James – A seizure Registrar. He produced the seizure certificate PEXT. 31.
PW 5 – Captain Athman Ndegereko Kai from a Kenya Navy. Then the In charge - Mv. Nyayo. He was the first contact with the vessel in issue. He shadowed it and handed over to PW 11.
PW 6 – Captain Kipkorir Keter. A Kenya Navy Officer, the second in command of the MV Umoja. Together with PW 11, and their crew , they took over from PW 5 and Mv Nyayo.
PW 7 – Was Captain Ali Abodi Abdalla – a Senior Marine Pilot. He piloted the ship to the Mtongwe Harbor.
PW 8 – Was Abdulaziz Ahmed Mzee – A Senior Marine Pilot. He piloted the ship from the Mtongwe Anchorage to Berth 8.
PW 9 was CI Mbaya Gikandi of the Marine Police – escorted the ship to the berth once it was intercepted.
PW 10 CIP Simon Simoto – the DCIO Kilindini Maritime Police – escorted the ship to the Harbor.
PW 11 Major Phillip Mulumba – commanding officer Kenya Navy Ship -Umoja. He took over from PW 5 and he is the one who instructed the ship to go to proceed Mombasa.
PW 12 Adama Banafa – The one in charge of KPA – Maritime Operation Assisted in moving the ship to berth 8 and also in the search. He also towed the ship away.
PW 13 – Shaban Omar Tayari – a Marine Engineer. He inspected the vessel and produced his reports- PEXT. 63, 54 and 65.
PW 14 – Gulam Karim Dadi. An Operations Manager at Multi Port International Company. He provided bags and a bagging machine during the search.
PW 15 – Abdi Rahim Hassan Ahmed. Principal Operations Officer at KPA. He discharged the goods, provided 200 drums to empty the water from the ballast and the oil tanks.
PW 16 – Lewis Juma Malova search and Rescue Officer – He examined the global positioning systems gadget for the ship – PEXT 66 and he produced the report – PEXT 68.
PW 17 was Wilfred Josephat Kaliubi Head of Safety – Kenya Maritime Authority. He examined the books record in respect to the Seamen – PEXT. 69 – 79.
Pw 18 Joram Wambua Kateyo – Chief Lab Technician – Ministry of Mining. He analyzed 10 samples of calcium Sulphureous and produced his report PEXT. 80.
PW 19 – IP Mohammed Ali – His evidence was in respect to Khalid.
PW 20 was Wilfred Nyuyo Okumu – a pollution Control Inspector – KPA. He assisted in draining the water from the ship’s ballast.
PW 21 was Dancan Sandagi a Supervisor of Pollution Control International KPA. He also assisted in draining the water from the ship’s ballast.
PW 22 was Midan Ndhiwa – Welding and Fabrication. He cut a 30-40 inches hole in the ship to assist retrieval of bags.
PW 23 – CIP Peter Mulinge – from GSU headquarters. He recorded and guarded the exhibits recovered from the ship.
PW 24 – PC Antony Kinyanjui – CID Mombasa CSC. He took photographs – 106 – 279.
PW 25 CIP Gerald Mutiso from Anti – Narcotics Unit – Nairobi. He was part of the Investigating Team.
PW 26 was Thuma Mwamutiwa a Superintendent Inspector of mines. He sampled the contents of the 250 jumbo bags found in the vessel.
PW 27 – CIP Alex Mungeta – A document examiner. He examined some documents recovered in the vessel and produced his reports PEXT. 101 – 105.
PW 28 – David Changway Terer – an Investigation with E A CC. He arrested the 12 th accused person.
PW 29 was CPL Daniel Hamisi – a Police Officer attached to Safaricom. He analyzed some Mpesa Statement and produced his report – PEXT. 114.
PW 30 was CPL Ngate Samuel. From Anti-Narcotics Police Unit Mombasa. He assisted in the arrest of the 10 th accused person.
PW 31 was Mohammed Said Mujibi – a diver with the Kenya Navy – Mtongwe. He assisted in retrieval of the substance from the ship’s tank.
PW 32 – Joseph Kiago Kahurumie Chief Manager Port Operation – KRA. He did not complete his evidence.
PW 33 – CIP Benjamin Mwauso. He took photographs of both the interior and exterior of the ship and the contents in ship. He also took a DVD of the destruction. He did not produce the same.
PW 34 – CPL Joseph Wafula Wanjala of CID Anti-Narcotics Unit. He was part of Investigating team.
PW 35 – Ruth Mwende- also part of the Investigating Team
All the 12 accused persons filled written affidavits and were cross examined.
ANALYSIS OF THE FACTS AND THE LAW
For ease of analysis, the court sieved and grouped the evidence and issues under 3 subtitles: The identity, seizure or arrest of the ship.
The search, recovery, sampling, weighing, storage and destruction of the exhibits
Other technical or procedural aspects.
There were, of course, areas of overflow.
WHICH AND WHOSE SHIP IS WAS IN ISSUE
The law
Many treaties apply at sea and in relation to the sea. The United Nations Convection on the Law of the Sea of 1982 (UNCLOS) is considered to be the fundamental expression of the rules governing general relationships and jurisdictions at sea. In effect, it is a “constitution” for the sea. Other treaties deal with issues that are not specifically “maritime” in nature, but which can apply both at sea and on land. For example, many of the provisions in the Rome Statute of the International Criminal Court apply equally to conduct perpetrated at sea and on land. Sometimes the way in which a general treaty rule is applied at sea requires some adjustment or a slightly different understanding, precisely because the sea is not the same as land territory. One example is the fundamental rule about when the right of a State to use force to defend itself is activities.
UNCLOS is clearly the most significant piece of international law that is specifically aimed at governing the sea and regulating conduct at sea. However, there are many other treaties which are specifically designed to regulate or govern some aspect of State relationships at sea or conduct at sea.
Another treaty which addresses a matter of universal concern to States and which contains some special additional rules for application at sea is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (1988 Convention.)
UNCLOS also contains a general rule on this issue. States have long recognized that the trafficking of drugs by sea is a major criminal enterprise and needs to be addressed in more detail than provided for in UNCLOS. As a consequence, when they came to negotiate the 1988 Convention, States took the opportunity to provide greater detail on how to implement the general authorization found in UNCLOS. The maritime crime of trafficking drugs by sea. {Maritime Crimes Manual Guidelines} at page 4.
ARTICLE 108 of UNCLOS deals with Illicit traffic in narcotic drugs and psychotropic substances. It states: - All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas’ contrary to international conventions.
Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.
ARTICLE 17 of the UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES deals with Illicit Traffic by Sea. It states:
1. The Parties shall co-operate to the fullest extent possible to
suppress illicit traffic by sea, in conformity with the international law of the sea.
2. A Party which has reasonable grounds to suspect that a vessel
flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.
3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel.
4. In accordance with paragraph 3 or in accordance with treaties
in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.
ARTICLE 27 of UNICLOS relates to Criminal jurisdiction on board a foreign ship: It states:
1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
(a) if the consequences of the crime extend to the coastal State;
(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.
3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship’s crew. In cases of emergency this notification may be communicated while the measures are being taken
4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation.
5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
ARTICLE 110 of UNICLOS is the Right of visit. States;
1.Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag Stat e of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible
considerations.
3.If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
4. These provisions apply mutatis mutandis.
According to the International Maritime Organization, the general mechanism for establishing a ship’s nationality and for regulating shipping is registration of the ship in a particular State. By linking a ship to a State, the system of ship registration indicates that State has the right to protect that ship in international law.
Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS) states-
Nationality of ships
1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.
2.Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
66. Article 92 of the UNCLOS deals with the Status of ships. It states:
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Other identifying marks include the registration documents and the International Maritime Organization number.
WHICH AND WHOSE VESSEL WAS IT?
In this particular case, the evidence shows that the ship was not flying any flag. All the prosecution witnesses starting with the Kenya navy officers who were the first contact, PW5,6, and 11, to the maritine police officers who directed it to the Mtongwe berth being PW 10,11 and 12 stated as much. This was supported by the two captains who brought the ship into the anchorage; PW7 AND 8.
PW13, SHABAN OMAR TAYARI, a maritime engineer with Kenya maritime Authority and a Port State Control Officer inspected the subject vessel and her documents. He testified that he was able to ascertain the owner of the vessel and even wrote to him. His evidence was as follows:
(page 223)
“…. My duties include inspecting all vessels dockings at the Port of Mombasa for security purposes…
On 4/7 /2014. I was on duty. The Head of the department sent me to a ship called AMIN DARYA at the Port's Berth No. 8. The ship was suspected to be carrying narcotic drugs. I got there at 11.00 am. I was received by K.P.A officers. One Hamisi Masa allowed me to get into the ship at around 2.00 Pm. The vessel's crew were there. I can't recall their
[...truncated]
J U D G M E N T
BACKGROUND AND REPRESENTATION
On the 21 st of March 2023, the firm of Browne and Browne Advocates, filed a document dated 20/03/2023. It is headed, PETITION OF APPEAL. It was however just a one-page document whose contents indicate that actually, it is a notice of intention to appeal. It was in respect to the 7 Appellants.
That document was accompanied by an email, also dated 20/03/2023, in which the said firm requested the Chief Magistrate Mombasa, to supply them with the certified copies of the proceedings and judgment in Criminal Case Number 1255 of 2014.
On the 23/03/2023, the Firm of Muthee Soni and Associates filed
a Petition of Appeal on behalf of the 6 of the Appellants. It is dated 23/03/2023 and it raised 7 grounds of appeal. It was in respect to 6 of the Appellants. Probaker Nair Pravever was omitted.
Separately on 26/07/2023, the firm of Omondi Ogutu and Associates filed an application dated 26/7/2023 being Mombasa High Court Misc. Application number E098 OF 2023 praying for extension to file an appeal out of time. They annexed a petition of appeal in respect to Pak Abdolghafer.
The 2 files were mentioned severally as the record was being prepared.
On 22/07/2024, Mr. Rajoro Advocate then appearing for the 6 th Appellant indicated that the record was now complete. The court directed that it be served on all the parties.
At this point, there was some push and pull over the representation, but eventually the other law firms ceded the representation to the firm of Browne and Browne Advocates to represent the 1 st to the 6 th Appellants who are said to be Pakistanis.
The firm of Omondi, Ogutu and Co. Advocates remained on record for the 7 th Appellant said to be from Iran.
It was also agreed that the two appeals being Mombasa be consolidated and the later file was closed.
The other significant issue was the application for bond pending appeal that the firm of Brownie and Browne filed. The same was however abandoned so that we concentrate on the main appeal.
Eventually directions were given that the now consolidated appeal would be heard by way of written submissions.
The issue of the death of one of the crew members Usman Gani during the arrest, search and seizure of the vessel also came up. We had a few mentions and the OCS Kilindini police station made some efforts which he updated the court during the mentions. That issue remained unsettled.
In the meantime, I called for a social inquiry report to help address some of the concerns raised such as the death of that Usman and the ill health of some of the aged appellants.
The reports headed sentence review report were filled by Mr. Muthoka, a probation order.
Ms. Peris Ogega, the learned advocate for the Respondent raised some concerns over the same since they were headed ‘Resentencing reports ‘yet the court had called for a social inquiry reports.
The court granted the respondent leave to file further submissions in respect to those reports which they did.
THE CHARGE
The Appellants were charged with the offence of trafficking in narcotic drugs, contrary to section 4 (a) of the Narcotic drugs and Psychotropic Substances Control Act No. 4 of 1994.
The particulars of the charge were : -
On diverse dates between 2 nd day of July 20l4 and 18 th July 2014 at Kilindini Port Mombasa Berth No. 8 within Mombasa County, jointly with others not before court were found, trafficking by conveying in the cargo deck of ship AMIN DARYA also known as AL NOOR narcotic drug namely Heroin to wit 377.224 kilograms of creamish granular heroin valued at Kshs.1,131,672,000/-, liquid heroin to wit 33,200 liters valued at Kshs. 189,000,000/= and 2,4OO litres of diesel mixed with heroin valued at Kshs.1,440,000/- all with a market value of ksh.1,322,122,000/- (one billion, three hundred and twenty-two million, one hundred and twelve thousand shillings) in contravention of the said Act.
The state called a total of 35 witnesses and Appellants gave their defence. They were convicted and sentenced to life imprisonment on 10 th March, 2023, after a trial spanning close to 10 years. The Appellants have been in custody from the time of arrest.
THE CASE IN SNAPSHOT
From the evidence, on record, the genesis of this case is some intelligence that (PW 5) Major Athman Dengereko Kaifani had received prior to 01/07/2014. Consequently, on 01/07/2014 he intercepted a ship at 20.20 hrs. at Ras Ukowe. PW 5, who was then the commanding officer of the Kenya Navy Vessel; Nyayo, said he spotted and contacted the ship through the Universal Channel used by all Mariners. His evidence was that he was at 6 Nautical Miles from Ras Ukowe and the other ship was 6 Nautical Miles ahead of him.
PW 5 testified that the crew of the vessel he contacted was very co-operative and they gave their details as name: Alnoor registered in Bashir, Iran carrying white cement. He said he found this information in convenient (sic) within his intelligence that the ship by that name was trafficking in narcotics. He therefore reported his find through the command and shadowed the vessel up to Kipini where he handed over to Major Phillip Muluma (PW 11) on 02/07/2014 at 0.556 am.
Major Phillip was then the commanding officer of the Kenya Navy Vessel – Umoja and after taking over from PW5, they escorted the vessel together with his crew including PW 6, Captain Kipkorir Keter.
PW6 testified that he was also aboard the Kenya Navy Vessel Umoja. That on 03/07/2014, he noted the ship they were escorting had changed cause from ‘210’ to 190’. He contacted the vessel who said the agent had told them to proceed to Zanzibar. PW 11 Over heard this conversation and he took over and directed the ship to go to Mombasa.
Subsequently, (PW 7) Captain Ali, was called to captain the ship. He was escorted by the Officer in Charge Kilindini CP Mbaya, 3 other officers from the Maritime police unit (PW10, PW 9 and 12.) These 4, meet the rescue and captained it to the Mtongwe Anchorage. Later that day, at 3pm. PW 8, Ian Abdulaziz –a KPA Marine Pilot, shifted the ship from the Mtongwe Anchorage to Berth number.
According to the prosecution the search on the ship began on 3/07/2024 at the Mtongwe berth where a quick search was conducted by Chief Investigator Gerald Mutiso (PW 25). The documents such as passports PEXT 81-90 were recovered. The search then continued on 04.07/2014 after the ship was piloted to the berth number 8. Between the 4 th and the 7 th of August 2024, the search team offloaded and sifted through some 258 one tone bags of cement and other small bags of genuine cargo on the ship’s cargo deck.
The 7 th of July 2014 marked the turning point of the search as it yielded the results being the recovery of the “suspicious package” PEXT 7. Following this find, there appears to have been some confessions from the crew that there were similar bags in the ship’s ballast and the diesel tanks.
Samples were taken from the recovered bag, the ballast water, and the diesel and were taken for analysis.
Eventually all the water and diesel were pumped out and more suspicious substance recovered. The same was sampled, tested and the accused persons charged in court.
In the intervening period some Kenyan agents/ or people said to be connected to the ship and its cargo were arrested and charged. 30. The trial court, however, upon a full hearing acquitted this group. These were: A10, A11 and A12, the three locals, who according to the prosecution, were supposedly part of the local network being shipping and clearing agents.
The trial court had earlier on in the ruling at the close of the prosecution case, on 23/11/2017, found that A6 and A8, who were on board the subject vessel at all material times had no case to answer. The court found that there was no evidence that the accused were official crew members and that in fact they were apprentices and that consequently they could not be held responsible for the cargo the ship carried and could not therefore have been trafficking in any narcotic drug that may have been on the vessel.
Consequently, only the crew members were convicted hence this appeal.
The other notable highlights of the case were the death of one crew member Usman and the much-publicized destruction of the vessel and its cargo.
ROLE OF THE APPELLATE COURT
It is now well settled law that the appellate court's role is to review the trial court's decision, re-evaluate the evidence, and make its own independent findings, ensuring justice and fairness, while acknowledging the trial court's advantage of seeing and hearing witnesses:
The Court of Appeal in Chwanya –Vs- R Cr. Appeal 70 of 2021 (2024) KECA 391 ; cited comparative common law jurisdictions as demonstrated in the decision of the Supreme Court of India in Ganpat vs. State of Haryana (2010) 12 SCC 59. 4. where the court set out the principles to be borne in mind by a first appellate court while dealing with appeals and stated thus:
There is no limitation on the part of the appellate Court to review the evidence upon which the order appealed against is founded and to come to its own conclusion.
The first appellate Court can also review the trial court’s conclusion with respect to both facts and law.
It is the duty of a first appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the decision appealed against or the entire proceedings if they are flawed.
When the trial Court has breached provisions of the constitution or ignored statutory provisions, or misconstrued the law, or breached rules of procedure, or ignored crucial evidence or misread the material evidence or has ignored material documents, or in any manner compromised the accused rights to a fair trial or prejudiced the accused etc. the appellate court is competent to reverse the decision of the trial court depending on the materials in question.”
GROUNDS OF APPEAL
As earlier pointed out, there were two sets of grounds of appeal; they can be summarized inter alia, as follows: -
The learned trial magistrate erred in law and in fact by convicting the accused persons in proceedings that were conducted in a language that they did not understand; a purported translator who masqueraded and was allowed by the court to participate in the proceedings did not produce any testimonials, credentials or certification in proficiency and capacity to translate technical judicial proceedings for the benefit of all parties concerned;
The learned magistrate erred in law and fact by relying on evidence whose chain of custody could not be ascertained to convict and sentence the appellants/applicants.
The learned magistrate erred in law and fact by relying on evidence whose origination, source or chain of custody could not be ascertained or verified to convict and sentence the appellants/applicants.
The Appellants/Applicants were ordered to be taken to Court to take Plea purely on account of an alleged ‘retrieval’ of a ‘suspicious package’ [page 51 record of proceedings] which had not been subjected to any or further examination, thereby prejudicing the entire process
The leaned trial Magistrate erred in law and in fact by convicting and sentencing the appellants to life imprisonment by relying solely on her own assessment but not borne out by the evidence which, in any event, was flawed.
The learned trial magistrate erred in law and fact by relying on planted evidence whose search and collection was in the absence of the appellants’/applicants’ legal counsel’s representation, which was not made available as a matter of right.
The learned trial magistrate erred in law and fact by shifting the burden of proof to the appellants.
The trial court destroyed the evidence upon which the conviction and sentence accrued by reason of which the Appellants are held in the absence of any evidence that sustained the charge, conviction and sentence.
The record of proceedings does not contain evidence of the real particulars of the ship that was destroyed at sea by presidential executive order, whether it was Al Noor or Amin Darya
The appellants/applicants were arrested, searched ad traumatized with complete disregard to their status as foreigners, without a warrant, without the presence of a representative of their foreign mission or embassy staff, as well as absence of a legal representative to witness the horror of a search from 2 nd July 2014 to 18 th July 2014.
The trial was conducted without due regard to the provisions of the United Nations Convention on the Law of the Sea [UNCLOS] 1982 which is the Mother law that governs all activities in national as well as international waters, as well as all other Conventions, Treaties and Agreements to which the Republic of Kenya is a Party and a Signatory, in furtherance of Article 2[5] of the Constitution of Kenya, 2010.
The destruction of the evidence, in particular the shelling and blowing up of the vessel, which vessel had been ‘intercepted’ and unlawfully arrested while on international waters, in the middle of the sea in the full glare and witness of the whole world while the trial was still underway, on the orders of the head of state of the republic of Kenya who witnessed the exercise… was a clear indication that the case the accused were facing had already been determined.
That the learned magistrate erred in law when she failed to find that the key ingredients of the offence laid out under section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No.4 of 1994 were not established.
That the learned magistrate erred in law and misdirected herself in law totally ignoring all the issues before her by way of submissions and/or fact at the time of trial where the accused person was denied the right to an interpreter proficient in Farsi/Persian.
That the learned magistrate erred in law and in fact when she held that the circumstantial evidence on record linked the Appellant with commission of the offence in question whereas extenuating factors in play weakened the whole case against him.
That the learned magistrate erred in law and in fact in disparaging and/or disregarding the Appellants defense consequently shifting the burden of proof to the Appellants.
THE TRIAL
The prosecution called a total of 35 witnesses while for the accused persons swore affidavits and they were crossed examined. They also called one witness.
THE EVIDENCE
As noted above, the respondent called a total of 35 witnesses, they were:
PWI Hamisi Salim Masaa – Senior Assistant Commissioner of Police. He was the lead investigator and he deployed others.
PW 2 William Kailo Muyoki – A Government Analysist. He analysed several samples and prepared his report EXT. 44.
PW 3 John Menga. Also, a government analyst, he prepared several reports which he produced as PEXT 11, 12, 27, 33 and 37.
PW 4 – Patrick Mugo James – A seizure Registrar. He produced the seizure certificate PEXT. 31.
PW 5 – Captain Athman Ndegereko Kai from a Kenya Navy. Then the In charge - Mv. Nyayo. He was the first contact with the vessel in issue. He shadowed it and handed over to PW 11.
PW 6 – Captain Kipkorir Keter. A Kenya Navy Officer, the second in command of the MV Umoja. Together with PW 11, and their crew , they took over from PW 5 and Mv Nyayo.
PW 7 – Was Captain Ali Abodi Abdalla – a Senior Marine Pilot. He piloted the ship to the Mtongwe Harbor.
PW 8 – Was Abdulaziz Ahmed Mzee – A Senior Marine Pilot. He piloted the ship from the Mtongwe Anchorage to Berth 8.
PW 9 was CI Mbaya Gikandi of the Marine Police – escorted the ship to the berth once it was intercepted.
PW 10 CIP Simon Simoto – the DCIO Kilindini Maritime Police – escorted the ship to the Harbor.
PW 11 Major Phillip Mulumba – commanding officer Kenya Navy Ship -Umoja. He took over from PW 5 and he is the one who instructed the ship to go to proceed Mombasa.
PW 12 Adama Banafa – The one in charge of KPA – Maritime Operation Assisted in moving the ship to berth 8 and also in the search. He also towed the ship away.
PW 13 – Shaban Omar Tayari – a Marine Engineer. He inspected the vessel and produced his reports- PEXT. 63, 54 and 65.
PW 14 – Gulam Karim Dadi. An Operations Manager at Multi Port International Company. He provided bags and a bagging machine during the search.
PW 15 – Abdi Rahim Hassan Ahmed. Principal Operations Officer at KPA. He discharged the goods, provided 200 drums to empty the water from the ballast and the oil tanks.
PW 16 – Lewis Juma Malova search and Rescue Officer – He examined the global positioning systems gadget for the ship – PEXT 66 and he produced the report – PEXT 68.
PW 17 was Wilfred Josephat Kaliubi Head of Safety – Kenya Maritime Authority. He examined the books record in respect to the Seamen – PEXT. 69 – 79.
Pw 18 Joram Wambua Kateyo – Chief Lab Technician – Ministry of Mining. He analyzed 10 samples of calcium Sulphureous and produced his report PEXT. 80.
PW 19 – IP Mohammed Ali – His evidence was in respect to Khalid.
PW 20 was Wilfred Nyuyo Okumu – a pollution Control Inspector – KPA. He assisted in draining the water from the ship’s ballast.
PW 21 was Dancan Sandagi a Supervisor of Pollution Control International KPA. He also assisted in draining the water from the ship’s ballast.
PW 22 was Midan Ndhiwa – Welding and Fabrication. He cut a 30-40 inches hole in the ship to assist retrieval of bags.
PW 23 – CIP Peter Mulinge – from GSU headquarters. He recorded and guarded the exhibits recovered from the ship.
PW 24 – PC Antony Kinyanjui – CID Mombasa CSC. He took photographs – 106 – 279.
PW 25 CIP Gerald Mutiso from Anti – Narcotics Unit – Nairobi. He was part of the Investigating Team.
PW 26 was Thuma Mwamutiwa a Superintendent Inspector of mines. He sampled the contents of the 250 jumbo bags found in the vessel.
PW 27 – CIP Alex Mungeta – A document examiner. He examined some documents recovered in the vessel and produced his reports PEXT. 101 – 105.
PW 28 – David Changway Terer – an Investigation with E A CC. He arrested the 12 th accused person.
PW 29 was CPL Daniel Hamisi – a Police Officer attached to Safaricom. He analyzed some Mpesa Statement and produced his report – PEXT. 114.
PW 30 was CPL Ngate Samuel. From Anti-Narcotics Police Unit Mombasa. He assisted in the arrest of the 10 th accused person.
PW 31 was Mohammed Said Mujibi – a diver with the Kenya Navy – Mtongwe. He assisted in retrieval of the substance from the ship’s tank.
PW 32 – Joseph Kiago Kahurumie Chief Manager Port Operation – KRA. He did not complete his evidence.
PW 33 – CIP Benjamin Mwauso. He took photographs of both the interior and exterior of the ship and the contents in ship. He also took a DVD of the destruction. He did not produce the same.
PW 34 – CPL Joseph Wafula Wanjala of CID Anti-Narcotics Unit. He was part of Investigating team.
PW 35 – Ruth Mwende- also part of the Investigating Team
All the 12 accused persons filled written affidavits and were cross examined.
ANALYSIS OF THE FACTS AND THE LAW
For ease of analysis, the court sieved and grouped the evidence and issues under 3 subtitles: The identity, seizure or arrest of the ship.
The search, recovery, sampling, weighing, storage and destruction of the exhibits
Other technical or procedural aspects.
There were, of course, areas of overflow.
WHICH AND WHOSE SHIP IS WAS IN ISSUE
The law
Many treaties apply at sea and in relation to the sea. The United Nations Convection on the Law of the Sea of 1982 (UNCLOS) is considered to be the fundamental expression of the rules governing general relationships and jurisdictions at sea. In effect, it is a “constitution” for the sea. Other treaties deal with issues that are not specifically “maritime” in nature, but which can apply both at sea and on land. For example, many of the provisions in the Rome Statute of the International Criminal Court apply equally to conduct perpetrated at sea and on land. Sometimes the way in which a general treaty rule is applied at sea requires some adjustment or a slightly different understanding, precisely because the sea is not the same as land territory. One example is the fundamental rule about when the right of a State to use force to defend itself is activities.
UNCLOS is clearly the most significant piece of international law that is specifically aimed at governing the sea and regulating conduct at sea. However, there are many other treaties which are specifically designed to regulate or govern some aspect of State relationships at sea or conduct at sea.
Another treaty which addresses a matter of universal concern to States and which contains some special additional rules for application at sea is the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (1988 Convention.)
UNCLOS also contains a general rule on this issue. States have long recognized that the trafficking of drugs by sea is a major criminal enterprise and needs to be addressed in more detail than provided for in UNCLOS. As a consequence, when they came to negotiate the 1988 Convention, States took the opportunity to provide greater detail on how to implement the general authorization found in UNCLOS. The maritime crime of trafficking drugs by sea. {Maritime Crimes Manual Guidelines} at page 4.
ARTICLE 108 of UNCLOS deals with Illicit traffic in narcotic drugs and psychotropic substances. It states: - All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas’ contrary to international conventions.
Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.
ARTICLE 17 of the UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES deals with Illicit Traffic by Sea. It states:
1. The Parties shall co-operate to the fullest extent possible to
suppress illicit traffic by sea, in conformity with the international law of the sea.
2. A Party which has reasonable grounds to suspect that a vessel
flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them.
3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel.
4. In accordance with paragraph 3 or in accordance with treaties
in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board.
ARTICLE 27 of UNICLOS relates to Criminal jurisdiction on board a foreign ship: It states:
1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases:
(a) if the consequences of the crime extend to the coastal State;
(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.
2. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.
3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship’s crew. In cases of emergency this notification may be communicated while the measures are being taken
4. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation.
5. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
ARTICLE 110 of UNICLOS is the Right of visit. States;
1.Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag Stat e of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship’s right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible
considerations.
3.If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained.
4. These provisions apply mutatis mutandis.
According to the International Maritime Organization, the general mechanism for establishing a ship’s nationality and for regulating shipping is registration of the ship in a particular State. By linking a ship to a State, the system of ship registration indicates that State has the right to protect that ship in international law.
Article 91 of the United Nations Convention on the Law of the Sea (UNCLOS) states-
Nationality of ships
1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship.
2.Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.
66. Article 92 of the UNCLOS deals with the Status of ships. It states:
1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.
Other identifying marks include the registration documents and the International Maritime Organization number.
WHICH AND WHOSE VESSEL WAS IT?
In this particular case, the evidence shows that the ship was not flying any flag. All the prosecution witnesses starting with the Kenya navy officers who were the first contact, PW5,6, and 11, to the maritine police officers who directed it to the Mtongwe berth being PW 10,11 and 12 stated as much. This was supported by the two captains who brought the ship into the anchorage; PW7 AND 8.
PW13, SHABAN OMAR TAYARI, a maritime engineer with Kenya maritime Authority and a Port State Control Officer inspected the subject vessel and her documents. He testified that he was able to ascertain the owner of the vessel and even wrote to him. His evidence was as follows:
(page 223)
“…. My duties include inspecting all vessels dockings at the Port of Mombasa for security purposes…
On 4/7 /2014. I was on duty. The Head of the department sent me to a ship called AMIN DARYA at the Port's Berth No. 8. The ship was suspected to be carrying narcotic drugs. I got there at 11.00 am. I was received by K.P.A officers. One Hamisi Masa allowed me to get into the ship at around 2.00 Pm. The vessel's crew were there. I can't recall their
[...truncated]