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High Court upholds 33-year sentence for Westgate Attack convicts

Justice John Onyiego terminates the prosecution of Hassan Nur Abbey who was charged with trumped-up charges at the Mandera Law Court (Photo: EV)

By Joseph Ndunda | Friday, June 28, 2024

Justice Nzioka dismissed an appeal by Hussein Hassan Mustafa and Mohammed Ahmed Abdi stating, "I would have enhanced the sentence if I was requested but I would leave it as it was given".

The high court has upheld the conviction of two men found guilty of conspiring with others to carry out the Westgate terror attack of September 2013 and the subsequent 33-year jail term imposed on them. At least 67 people, including five security officers, were killed in the attack.

Justice Grace Nzioka dismissed an appeal by Hussein Hassan Mustafa and Mohammed Ahmed Abdi stating, "I would have enhanced the sentence if I was requested but I would leave it as it was given".

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The two convicts were found guilty of conspiring with others to carry out a terror attack in contravention of section 23 of the Prevention of Terrorism Act (POTA) of 2012.

They are accused of conspiring with four attackers – Mohamed Abdinur Said, Ahmed Hassan Abubakar, Yahye Osman Ahmed and Hassan Mohammed Dhuhulow who killed at least 67 people in the mall on September 21, 2013. The attackers were killed by Kenyan forces at the mall during the four-day siege.

They had arrived in a motor vehicle - KAS 575X and pulled up outside the mall before they suddenly jumped out armed with guns and started shooting randomly.

The offence of conspiracy in POTA is punishable with a jail term not exceeding 20 years but the convicts were handed an 18-year jail term for it.

Hussein and Mohammed were also found guilty of being in possession of articles and materials for the commission of terror act and were charged and convicted for the crime. Their laptop contained material for radicalization.

The offence is punishable by 20 years sentence but they were jailed for 15 years and their two sentences are running consecutively from January 2020, meaning they will serve 33 years in jail.

Justice Nzioka quashed the conviction of the two on the charge of giving support for the commission of a terrorist attack and the resultant sentence.

"I uphold the count of conspiracy to commit a terrorist act and the sentence meted out and the offence of being in possession of materials that were associated with the offence of terrorist act that could instigate or facilitate a terrorist act," stated the judge.

They had been handed the jail term by Justice Francis Andayi on October 30, 2020, who was the Milimani Law Courts chief magistrate. Andayi had stated that the 33-year jail term would include the seven years that the convicts had spent in prison as pre-trial remandees.

But Justice Nzioka lifted the remission telling the Kenya Prisons Service that the sentence will be counted from the date of the sentencing (October 30, 2020) and the prison authorities should calculate the remission from that date.

Nzioka noted that more than 200 people were injured during the attack and the premises were completely destroyed.

"People in Kenya woke up that day and left to attend their day-to-day work with the expectation that they would all return to their residences sound and safely. But the people who visited the Westgate Shopping Mall that was never to be," stated Nzioka.