Attorney General v Mohamud Mohammed Hashi & 8 others
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
#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provides that a repeal does not affect pending investigations, legal proceedings or remedies, which continue as if the repealed law had not been made.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
- 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)
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)8 May 2015followed
Cite this brief
#Cite this brief
Caselaw, "Attorney General v Mohamud Mohammed Hashi & 8 others", 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.