Did Mr Ali Kololo wear Tanga (plastic) shoes whose marks were found at the scene where British national Judith Tebbutt was kidnapped and her husband David Tebbutt shot dead in Lamu in 2011?
This is the question the High Court in Malindi will be addressing as it handles Mr Kololo’s appeal against a death sentence handed to him more than eight years ago by a magistrate’s court in Lamu.
He was also sentenced to seven years’ imprisonment for the offence of kidnapping in order to murder.
To help the court to answer this question, Mr Kololo has been allowed to introduce new evidence that he believes will absolve him from any wrongdoing.
Mr Kololo was sentenced to death for kidnapping and robbery with violence after a court found him guilty of leading a group of Somali men to Kiwayu Safari Village Resort in Lamu.
While there, they shot dead Mr Tebbutt and abducted his wife Judith to Somalia where she was held captive for more than six months. Ms Tebbut’s kidnapping is one of the cases believed to be the trigger for the launch of Operation Linda Nchi by the Kenya Defence Forces in October 2011.
According to his lawyer, Mr Alfred Olaba, the evidence from the United Kingdom will prove that his client was wrongly and unfairly convicted.
The ruling allowing Mr Kololo to use forensic evidence from the UK was delivered in 2016 and affirmed by the Court of Appeal two years later.
The ruling delivered by Justice Said Chitembwe followed an application by Mr Kololo to have the forensic evidence omitted during his trial used to argue the appeal. The application was supported by the affidavit of Mr Zoe Bedford filed and sworn on May 28,2015. Mr Kololo's argument is that, at the time his case was being heard before the magistrate’s court, he was not aware of the presence of the additional evidence he intends to produce.
Court records show that the additional evidence is part of the forensic evidence that was prepared in the United Kingdom but was not included in the testimony of one of the witnesses.
While jailing Mr Kololo, the trial magistrate had relied on the finding that the Tanga shoes he wore at the time of his arrest and the impressions found at the scene were made by them. But new evidence shows that the recovered mark from the Tanga shoe was of poor quality, and when analysed, some features did not align.
“As a result ... it could not be specifically included or excluded that the Tanga shoe made the impression found at Banda 2B,” court records show.
