Daily Nation (Kenya)

IN SUMMARY
  • Justice Dora Chepkwony, while releasing Mr Ali, had termed the sentence imposed on him as unconstitutional.
  • She noted that the sentence was severe and that the prosecution failed to prove that Mr Ali was the owner of the ivory.
  • She said if the appellant was found guilty he would have been fined Sh1 million or serve a minimum of one-year imprisonment.The Director of Public Prosecutions (DPP) Noordin Haji has filed a notice of appeal following a decision quashing a 20-year jail term imposed on businessman Feisal Ali Mohammed who had been convicted of possessing ivory valued at Sh44 million.

Through prosecutor Jami Yamina, the DPP said he was aggrieved and dissatisfied with the decision of Justice Dora Chepkwony who had termed the sentence imposed on Mr Mohammed as unconstitutional.

“Take notice that the DPP being aggrieved, appeals to the Court of Appeal against the whole decision of Justice Chepkwony,” the notice.

SEVERE

Justice Chepkwony noted that the sentence was severe and that the prosecution failed to prove that Mr Mohammed was the owner of the ivory or was engaged in trafficking the trophies.

The judge also threw out a cross appeal which had been filed by the DPP seeking to overturn the acquittal of four other people who had been charged alongside Mr Ali and enhancement of the 20-year jail sentence.

“The sentence that was imposed by the trial court on July 22, 2016 was unconstitutional and therefore the same is set aside. I find the appellant’s (Ali) appeal has merit, allow the same and proceed to quash the conviction and set aside the sentence against the appellant. He is hereby set at liberty unless lawfully held,” said Justice Chepkwony.

JAIL TERM

She noted that under the Constitution, if the appellant was found guilty he would have been fined Sh1 million or serve a minimum of one-year imprisonment, and if the court properly applied the law in exercising its discretional powers in sentencing him, the appellant should have now served two years’ imprisonment.

The judge said the prosecution case against the appellant was weak with scattered pieces of evidence strewn all over and disagreed with the findings of Senior Principal Magistrate Diana Mochache that the pieces of evidence when all combined pointed to the guilt of Mr Ali.

In her judgment two years ago, the magistrate stated, “I have considered the prosecution evidence as it is manifestly clear that a combination of chain of events when considered as a whole point irresistibly at the accused person as the owner of the recovered ivory.”