The respondents to this appeal stand charged before the Chief Magistrate’s Court at Mombasa with the offence of piracy contrary to s 69(1) as read with s 69(3) of the Penal Code. The particulars of the charge allege that on 3 March 2009, upon the high seas of the Indian Ocean, jointly being armed with offensive weapons namely three AK-47 rifles, one Tokalev pistol, one RPG-7 portable Rocket Launcher, one SAR-80 rifle and one Carabine rifle, the respondents attacked the MV Courier and its crew. The respondents pleaded not guilty and challenged the court’s jurisdiction to try them, arguing that the offence having allegedly been committed in the Gulf of Aden, outside Kenyan territorial waters, the Kenyan courts had no jurisdiction to try them. The trial court overruled that preliminary objection and proceeded with the trial.

After both the prosecution and the defence had closed cases but before judgment was delivered, the respondents applied to the High Court and sought and obtained an order of prohibition to prohibit their trial on the same ground of lack of jurisdiction. The High Court judge directed the Kenyan Government to repatriate the respondents to their country. If the Kenyan Government failed to comply with that order, he directed the United Nations High Commission for Refuges (UNHCR) to take custody and care of the respondents as wards or displaced persons who require the UNHCR’s protection and assist them to relocate to their country. This appeal arises from that decision.

Held: Appeal allowed, prohibition order set aside and the Chief Magistrate’s Court at Mombasa ordered to immediately resume the trial of the respondents.

Per Koome JA: The law clearly gives the Kenyan courts jurisdiction to deal with offences of piracy in the high seas: s 69, which falls under part VIII, deals with the extra-territorial jurisdiction of the Penal Code; while s 5 merely defines the territorial and geographical jurisdiction of the courts. There is no legislative misnomer and even if the judge found there was, that could easily have been resolved by falling back on the provisions of UNCLOS dealing with the offence of piracy jure gentium. Although the learned trial judge made some reference to the Constitution of Kenya 2010, he however did not consider the provisions of art 2(5) which provides for the sources of Kenyan laws and in particular:

(a) the general rules of international law shall form part of the law of Kenya;
(b) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

Kenya is a signatory to UNCLOS and is a member of the United Nations.

Per Maraga JA: Apart from customary international law sources, there are Conventions, notably the 1982 United Nations Convention on the Law of Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) that codify the crime of piracy as well as other international crimes such as human trafficking, apartheid and torture. Articles 101-107 and 110 of UNCLOS, (which Kenya ratified on 2 March 1989), define piracy jure gentium as:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; and
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The SUA Convention defines the offence in similar terms. Both UNCLOS and SUA define the term 'high seas' to mean 'all parts of the sea that are not included in territorial sea or internal waters of a State'.