Three terror convicts protest 'harsh' sentences but the State remains firm

The three convicts want the High Court to overturn the magistrate’s Court ruling, terming the conviction and the sentence as unproven and excessive.

In their appeal at the High Court, Yassin Mohammed and Musharaf Abdalla are represented by Chacha Mwita.

On the other hand, Duncan Ondimu represents the Director of Public Prosecutions.

The DPP wants the appeal dismissed, adding that the evidence was overwhelming against the two while the sentence was proper.

Ondimu argues the prosecution tabled evidence that was not discredited by the defense, even during cross-examination.

According to the prosecutor, the two’s story was an afterthought meant to hoodwink or mislead the court.

“Taking into account all the evidence on record adduced by the prosecution and in the circumstances of the case, the prosecution did discharge its burden. The Prosecution evidence tendered in court was not in any way discredited by the defence. The Trial Court rightly convicted the appellants,” argues Ondimu.

Yassin wants the sentence reconsidered, while Abdallah wants freedom.

In his reply, Mwita argues that when Yassin pleaded guilty to the nine counts he was facing, he was not represented and was jailed for 59 years if the sentences were to run consecutively.

He says the sentence was too harsh and way beyond what law provides arguing that Yassin saved the court time, so the magistrate should have been lenient in sentencing him.

On the other hand, Abdalla was sentenced to 22 years in prison.

“There is need for standardization of the sentences and the first appellant deserved a lenient sentence for saving the courts time by pleading guilty and by being a first-time offender as confirmed by the prosecution.

"Unfortunately, the first appellant is slated to serve 59 years if the sentence is to run consecutively, which is obviously not fair and just, while the third appellant stands to serve 22 years,” argued Mwita.

In his submissions, Mwita argues that Abdalla’s charges were mainly based on possession of explosives, firearms, and ammunition. According to him, the allegations were not proven beyond reasonable doubt.He says his client was not in the house where the weapons were found.

The lawyer is of the view that the evidence from a guard at the apartment where Abdalla frequently visited and the house where Yassin and Omar Abdi Adan were arrested does not mean he was aware of the weapon's existence.

“My Lady, we humbly submit that the identification evidence against the 3rd appellant was not sufficient to link him directly or indirectly with the knowledge that the exhibits in question did exist and that he could exercise control over the said exhibits."

It is not in dispute that the exhibits were never found in the appellant's direct possession as submitted herein above and we do wish to fault the identification evidence as insufficient and incredible,” argues Mwita.

He says that a DNA analysis that was done from some of the recovered items in the house did not match to that of Abdalla.

At the same time, the lawyer said the testimony of the guard was that police officers stayed in the house where the weapons were found for approximately two hours.

An officer involved in the operation said once they discovered the explosives, they ran out and had to wait for four hours for the scene to be secure to continue with the search.

He questioned why the guard did not present any documents to show that he worked for Alpha Security.

Mwita also questioned the credibility of a mechanic who testified that he helped the three men change a punctured tyre and was paid Sh200. He wondered how the mechanic was able to identify Abdalla in a parade yet they had only interacted once.

He argues that Abdalla ought to serve all the sentences concurrently from the date of the arrest since the conviction is based on offences from the same transaction.