Attorney General v Mohamud Mohammed Hashi & 8 others [2012] KECA 256 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that Kenyan courts can try piracy committed on the high seas, and the accused persons' trial must continue.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Kenyan courts have jurisdiction to try piracy jure gentium committed on the high seas beyond Kenyan territorial waters
- 2.Whether there is a legislative misnomer or conflict between Section 69(1) as read with Section 69(3) and Section 5 of the Penal Code
- 3.Whether the repeal of Section 69 of the Penal Code by the Merchant Shipping Act, 2009 affected the ongoing prosecution
- 4.Whether the offence of piracy jure gentium is recognised under international law and the doctrine of universal jurisdiction
- 5.Whether the High Court judge exceeded his jurisdiction by making orders that were not sought in the application
Key legal issues
#Universal jurisdiction over piracy jure gentium
Kenyan courts have jurisdiction to try piracy jure gentium committed on the high seas, irrespective of location of the offence or the nationality of perpetrators or victims.
Piracy jure gentium is an offence against customary international law and a jus cogens norm. Under the doctrine of universal jurisdiction, a pirate is hostis humani generis, justiciable by any state. Section 69 of the Penal Code codified the offence; UNCLOS, the SUA Convention and Security Council resolutions reinforce universal jurisdiction. Article 2(5) and (6) of the 2010 Constitution incorporates international law into Kenyan law, adding constitutional authority to prosecute piracy.
Relationship between Sections 5 and 69 of the Penal Code
There is no conflict or hierarchy between Section 5 (territorial jurisdiction) and Section 69 (extra-territorial offence of piracy); the learned judge erred in subordinating Section 69 to Section 5.
Section 5, in Chapter 3 of the Penal Code, grants jurisdiction over municipal law offences committed in Kenya; Section 69, in Chapter 8 (Offences Affecting Relations with Foreign States and External Tranquility), deals with extra-territorial and international crimes. If there were conflict, the later-in-time Section 69 (1967) would prevail, but there is no warrant for ranking the provisions.
Effect of repeal of Section 69 by the Merchant Shipping Act, 2009
The repeal did not extinguish the offence or affect the pending prosecution; Sections 369 and 371 of the Merchant Shipping Act retain the offence of piracy jure gentium.
A reading of Sections 369 and 371 shows the offence of piracy in the high seas was retained. Additionally, Section 23(3) of the Interpretation and General Provisions Act provides that a repeal does not affect pending investigations, legal proceedings or remedies, which continue as if the repealed law had not been made. The offence was committed on 3rd March 2009 and prosecution commenced before the Act's commencement on 1st September 2009.
Competent forum for trial of piracy
Subordinate Courts of the First Class presided over by a Chief Magistrate, Senior Principal Magistrate, Principal Magistrate or Senior Resident Magistrate have jurisdiction to try piracy offences under Section 5 of the Criminal Procedure Code and the First Schedule.
Following Ojwang J in Republic v Abdirahman Isse Mohamud, the court held that since Section 69 of the Penal Code does not designate a trial court, Section 5(2) of the CPC and the First Schedule apply, conferring trial jurisdiction on first class subordinate courts. The High Court is not the only competent forum.
Excess of jurisdiction by the High Court
The High Court judge exceeded his jurisdiction in making orders not sought in the application and orders binding non-parties (Ministries, UNHCR) who were not heard.
The respondents sought only an order of prohibition. The judge went further to declare them 'vulnerable persons' or 'wards' of court, direct government ministries, and request UNHCR to take custody - orders against entities not party to the case and without an opportunity to be heard, contrary to natural justice.
Legal principles established
#- Kenyan courts have jurisdiction to try piracy jure gentium committed on the high seas regardless of the place of commission or the nationality of offenders or victims.
- Section 5 of the Penal Code (territorial jurisdiction) does not conflict with or supersede Section 69 (extra-territorial offence of piracy); the latter covers international crimes.
- A statutory repeal does not affect proceedings already instituted; a prosecution commenced under a repealed provision continues as if the repealed law had not been made.
- Subordinate courts of the first class presided over by a Chief Magistrate, Senior Principal Magistrate, Principal Magistrate or Senior Resident Magistrate have jurisdiction to try piracy offences.
- A superior court may not make orders that were not sought in the application or orders against non-parties who were not heard.
Court orders
#- 1.Appeal allowed
- 2.Ruling and orders of Ibrahim J dated 9th November 2010, including the order of prohibition, set aside in their entirety
- 3.Chief Magistrate's Court at Mombasa directed to immediately resume the trial of the respondents
- 4.No order as to costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Leading judgment. Held that Kenyan courts have universal jurisdiction to try piracy jure gentium committed on the high seas; Sections 5 and 69 of the Penal Code do not conflict; the repeal of Section 69 by the Merchant Shipping Act 2009 did not affect pending prosecutions; and the High Court judge exceeded his jurisdiction by making orders not sought and against non-parties.
For these reasons, I find and hold that Kenyan courts have jurisdiction to try the offence of piracy irrespective of the place of its commission or the nationalities of its perpetrators or victims.p. 8
Wrote the judgment
Concurring judgment reaching the same conclusions: jurisdiction under Section 69 of the Penal Code, no conflict with Section 5, repeal by the Merchant Shipping Act had no effect on ongoing proceedings via Section 23(3) of the Interpretation and General Provisions Act, and the judge's orders exceeded jurisdiction.
In the upshot, I would allow the appeal, set aside the order of prohibition and the entire orders made on 9th November, 2010. I would order that the matter be returned to the trial magistrate to continue with the trial.p. 4
Wrote the judgment
Agreed with Maraga JA and Koome JA; added that seminars materials were not legal authority and endorsed the Azangalala J decision in Hassan M. Ahmed.
Lastly I do agree with Mr. Kiage that the Judge had no jurisdiction to make the orders he made.p. 2
Wrote the judgment
Entirely agreed with the draft judgments of Onyango Otieno, Maraga and Koome JJA.
I have read in draft the judgments of OnyangoOtieno, Maraga and Koome, JJA and I entirely agree with the same, including the orders proposed therein.p. 2
Wrote the judgment
Agreed fully with Maraga JA's judgment.
I have read the judgment prepared by Maraga, JA. I agree with him fully and I have nothing useful to add.p. 5
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Miscellaneous Application No. 434 of 2009
- Jurisdiction invoked
- Section 3 of the Appellate Jurisdiction Act / Section 72 of the Civil Procedure Act (appeal from High Court judicial review decision); constitutional anchor Article 163 of the Constitution (bench of five Justices of Appeal)
Relief refused
#Respondents' prohibition of Criminal Case No. 840 of 2009
Kenyan courts have jurisdiction over piracy jure gentium committed on the high seas; the prohibition order was founded on an erroneous view of the law
Repatriation direction and UNHCR custody orders made by the High Court
The judge had no jurisdiction to make orders not sought in the application and against non-parties such as UNHCR who were not heard
Costs
No order as to costs of the appeal - "We make no order as to costs of the appeal."
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons, I find and hold that Kenyan courts have jurisdiction to try the offence of piracy irrespective of the place of its commission or the nationalities of its perpetrators or victims.
In the upshot, I allow this appeal, set aside the learned Judge's order of 9th November 2010 and direct the trial court that is the Chief Magistrate's Court at Mombasa to immediately resume the trial of the Respondents.
By dint of Section 23 (3) of the Interpretation and General Priorities Act, a repeal of a law unless a contrary intention is expressly provided does not affect an ongoing prosecution.
There is therefore no basis for the learned Judge's finding that Section 5 supersedes Section 69.
the learned Judge had no jurisdiction to make orders against a person who was not party to the case before him and who had not been given an opportunity to be heard on the matter.
As the other two learned Judges also agree, this appeal is allowed and the ruling of the learned Judge and orders made thereunder all set aside. Let the trial in the Chief Magistrates Court proceed. We make no order as to costs of the appeal.
Issues in the judgment
#Inconsistency in case number cited for Hassan M. Ahmed - rendered variously as 'Mombasa High Court Criminal Appeal Nos. 198 - 2007 of 2008' and 'Nos. 198-207 of 2008'
The particulars of the charge are quoted with differing vessel names ('MV COUPIER' vs 'MV COURIER') and a typographical citation of Section 69(3) as 'Section 9 (3)'
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Paul Kimani v Republic [2015] KECA 748 (KLR)[2015] KECA 748 (KLR)8 May 2015followed
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Mohamud Mohammed Hashi & 8 others [2012] KECA 256 (KLR)", Case Analysis (2012). Civil Appeal No. 113 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/256/eng@2012-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.