The seven years anguish of being behind bars ended Wednesday for refugee Liban Abdulle Omar after the court handed him a double joy by clearing him of the Westgate mall terror attack charges.
Other than freeing the suspect from the charge in which he faced a possible life sentence, Nairobi Chief Magistrate Francis Andayi also acquitted Omar of the charge of being in Kenya illegally and obtaining the document by false pretences.
“The blame lies with authorities who facilitated the identity card document issuance. He applied and was issued with one,” the magistrate ruled.
Omar, alias Adan Mohammed alias Adan Abdikadir alias Aden Dheq, a refugee from Somalia with a Kenyan ID card, was arrested on October 6, 2013 following the Westgate Mall attack in which 67 people lost their lives.
Mr Andayi noted that the cellphone number of Mr Omar, who is a brother to slain terrorist (Ahmed Hassan Abubakar), was called 92 times, including on the day of the attack.
“Twice Omar spoke to his slain brother and then Mr Abdi called him (Abubakar) 37 times including the material day, according to call data testimony presented by police,” Mr Andayi read in his judgement.
Mr Omar was acquitted under Section 215 of the Criminal Procedure Code (CPC) for failure by the prosecution to show that “it was him who made the calls”.
The court further stated, “It was Abubakar who was making the calls using his acquitted brothers phone.”
The magistrate gave Omar the benefit of doubt as prayed by defence lawyers Victoria Kariuki who teamed with Mbugua Mureithi in defending the suspect.
The lawyers successfully applied to have Omar returned to the Kakuma Refugee Camp where he had been residing before his arrest.
Advocate Kariuki informed the court that the police took away from Mr Omar his UNCHR identity when they arrested him.
Mobile phone communication analysis established that Omar was in contact with Ahmed Hassan Abubakar, the second mall attacker, 91 times between August 26, 2013 and September 20, 2013.
During interrogation, Omar claimed that the mobile handset he was using was given to him by his brother Ahmed Hassan Abukar, whose phone number was given as the contact number for the insurance cover for the motor vehicle KAS 575 X that was used during the attack.
During the court proceedings, one witness also claimed that Omar identified two houses where some of the mall attackers lived in Eastleigh.
However, chief magistrate ruled that the prosecution had not established a direct connection between Omar and the terror act.
Consequently, Omar became the second suspect out of four accused of the Westgate Mall attack to be freed by the courts.
In January last year, the courts acquitted Adan Abdikadir alias Aden Dheq of all charges for lack of evidence.
Adan shared a cell phone handset with Abdikadir Haret Mohamed, one of the individuals who purchased the car used by the attackers during the attack.
He was arrested at Saxon Saxo Plaza in Eastleigh. The suspects were first brought to court on November 4, 2013 and later pleaded not guilty to all the 12 charges that they faced.
All the suspects were jointly charged with counts one and two of commission of a terrorist act contrary to Section 4(2) of the Prevention of Terrorism Act and Conspiracy to commit a terrorist act contrary to Section 23(4) of the same act.
On charge three, all the suspects were accused of giving support to a terrorist group.
They were charged of supporting mall attackers Mohammed Abdinur Said, Hassan Mohamed Dhullow and others in committing a terrorist act.
