Senior resident magistrate Timothy ole Tanchu made the decision following an application by four suspected
Somali pirates, who said that the court did not have jurisdiction to try them.There are seven piracy cases before magistrates which have failed to proceed following last year's High Court ruling that Kenyan courts did not have jurisdiction to try piracy cases.
The ruling by Justice Mohammed Ibrahim was in reference to piracy under Section 69 (1) of the Penal Code, which the accused in the seven cases have been charged under.
The section has been replaced by the Merchant Shipping Act and some suspected Somali pirates have been charged under this law.
In their application, Abdirahman Isse, Mohamed Osman, Feisal Abdi and Noor Ali through lawyer Jared Magolo said that according to the Merchant Shipping Act, which they have been charged under, only the High Court is recognised so the lower courts have been denied jurisdiction.
In 2009, the High Court had declared that Kenyan courts had jurisdiction to try suspected pirates nabbed outside the country's territorial waters.
Mr Ole Tanchu noted that the decisions of the High Court concerning jurisdiction touched on Section 69 of the Penal Code while the case before him was under the Merchant Shipping Act.
"Where there are conflicting decisions, it's up to the court to decide which decision to follow," said senior state counsel Alexander Muteti while opposing the application by the four suspected pirates.
The magistrate, while delivering the ruling said that the procedure to refer the matter to the High Court was not provided for and the claim by the defence that the court had no jurisdiction to refer the matter was not tenable.
The four have been charged that, allegedly with others not before the court and while armed with AK-47 rifles, a pistol and a rocket propelled grenade, they attacked a fishing dhow called Sherry Fishing Dhow.
They are said to have used violence against the crew by firing at them using a rifle and a pistol.
The offence is alleged to have been committed on September 20, last year, on the high seas of the Indian Ocean.