KENYA - The High Court has declined to grant orders to have a vessel that was intercepted and seized in Mombasa with heroin destroyed.
The office of the Director of Public Prosecutions had made an application for its destruction and put up a spirited fight on Friday after citing various reasons. However, Mombasa judge Lady Justice Maureen Odero declined to issue the orders saying that she did not want to interfere with the ruling of the lower court.
The vessel which was seized last month was found with 377 kilogrammes of heroin, and on Wednesday, Mombasa chief magistrate Maxwell Gicheru directed that the drugs be destroyed following an application by the State. However, the magistrate declined to grant an order to destroy the vessel saying he saw no valid reason for its destruction, adding that it was appropriate to have the case determined and if need be, have the vessel destroyed.
But in its application Friday, the State led by the Director of Public Prosecution Keriako Tobiko urged the court to consider the fact that the vessel which was seized by the Kenya Navy was posing a security threat.
He also said no one had laid a claim to it since a notice of seizure was issued one and a half months ago. “If there is anyone who wants to lay claim to it, then that’s the person we should have in our custody,” he said. Among other reasons advanced included the fact that it was accumulating huge costs of 1,000 US dollars per day at the expense of the State and because it was also declared unseaworthy.
Mr Tobiko who asked the judge to vary the lower court’s order saying that the magistrate misdirected himself and that he was treating the matter before him as just ‘an ordinary case’, while in fact it was a case that fell beyond domestic concerns. “This is a serious case dealing with transnational organised drugs and a matter of serious international concern,” he said. The continued retention of the vessel, he noted, posed serious security risks even to the security personnel manning it, besides being an expense to the Government which has now been forced to pay daily charges for docking at the port.
In his submissions, State Counsel Alexander Muteti said the vessel was intercepted because it was not flying any flag as required under the maritime law and it had three names which, according to the State, was meant to disguise it. “It was also indicated in its documents that the port of loading was Mombasa, while port of destination was Kenya. Where is Mombasa and where is Kenya?” He posed. Mr Muteti also wondered if the vessel could have been carrying any other contraband goods considering that policemen were forced to special machines to cut through the metal chambers in order to access the drugs that had been concealed in the diesel tank.
“This is a secret of a criminal enterprise and I wonder why the magistrate did not consider this fact and issue an order for its destruction,” he noted. Mr Muteti further said that it was unreasonable to second personnel to watch over the vessel, more so, because it was unseaworthy, arguing that the State would be in a dilemma if anything disastrous was to happen to it.
In response, Pascal Nabwana who was representing some of the accused persons said that there was still time for one to claim the vessel since 90 days time limit had not expired. He also said that it would be inappropriate for the court to make a finding that the seizure notice lapses before the determination of the case.
In addition, he said that no evidence had been adduced to show that the vessel was posing security concerns and that it was unseaworthy. “How then did it make its voyage from Iran to Dubai if it was unseaworthy?” He posed. In her ruling on Friday, Justice Odero upheld the ruling of the lower court to destroy the drugs but declined to grant the order for destroying the ship without disclosing reasons. “I will give more reasoned ruling next week,” she said.
The Daily Naiton/August 29, 2014
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