•In his appeal, Dwight Sagaray claims that the trial Judge Roselyn Korir made a mistake by relying on an unsubstantiated procured note
An ex-diplomat jailed for the 2012 murder of acting Venezuelan ambassador in Kenya, Olga Fonseca has claimed his conviction and sentencing is illegal and wants the Court of Appeal to overturn it.
In his appeal, Dwight Sagaray claims that the trial Judge Roselyn Korir made a mistake by relying on an unsubstantiated procured note alleged to emanate from the Venezuelan ministry concerning waiver of his diplomatic immunity.
He argues the note was not procedurally procured.
According to the Vienna Convention on Diplomatic Relations (1961), all diplomats, under international law, are to be considered not susceptible to lawsuits or prosecution under their host country’s laws.
If they are to be charged, the immunity must first be waived, following a procedure, since they enjoy immunity from criminal proceedings.
“The trial court made a mistake by misapplying the principles on Diplomatic Immunity as advocated for under the Vienna Convention on Diplomatic Relations, the Privileges and Immunities Act. My Trial and conviction breached the said legal instrumentals making the same a nullity,” says Dwight.
Dwight was handed a 20-year sentence over the murder of Fonseca.
Fonsesca was strangled to death on July 26 2012, less than two weeks after arriving in Kenya to head the diplomatic mission.
Her body was found lying on her bed with a wire cord around her neck, hands and legs on the night of 26 and 27 July 2012.
Next to her body was a pair of pliers.
She reported to Kenya on July 15 to replace former ambassador Gerardo Carillo Silva, who was facing allegations of sexual harassment by male workers from the embassy residence.
Dwight and four others were placed on trial over her murder.
One was acquitted and the other two were jailed.
There was another suspect by the name of Mohamed who was never arrested and remains at large to date.
In convicting Dwight, Judge Korir said the evidence produced in court by the prosecution demonstrated there was an outright conflict between Olga and Dwight.
That glaring conflict provided the motive to eliminate Olga.
The court was able to deduce the hostile and acrimonious relationship between the two through the evidence of the embassy staff.
"I have found their evidence to be credible. They narrated what they saw and experienced. They have no interest in siding with either party," said the Judge.
The court also relied on a confession statement by Moses Kalya, an accused person at the time.
The statement, later recanted, detailed how Ahmed Omido, Alex Sifuna, Moses Kalya and Mohamed held meetings to discuss the elimination of Fonseca.
Even though Dwight was not named in the confession statement, the court said he must have known of the plot to kill but did nothing about it.
Moses was acquitted.
Dwight in his appeal has faulted the Judge for relying on the confession which he says was riddled with inconsistencies.
He says the evidence produced by the prosecution in the case was not sufficient to have him convicted.
He also argues that Judge Korir:
“Ignored crucial and material facts and failed to objectively consider the totality of the evidence thereby arriving at an unjust decision.”
Court of Appeal Judges Patrick Kiage, Lydia Achode and Abida Ali Aroni will schedule a hearing date for the matter.