Director of Public Prosecutions Noordin Haji has conceded that Ali Kololo may have been wrongly convicted over the murder of British national David Tebbut and the kidnapping of his wife Judith Tebbutt in 2011.
Kololo was arrested in 2012 after a group of Somali men believed to have been Al-Shabaab militants invaded a luxury resort in Lamu and shot dead Mr Tebuttt and abducted his wife, who was released six months later, after their son paid ransom.
Ms Tebbut’s kidnapping was one of the cases believed to have triggered the Kenya Defence Forces’ Operation Linda Nchi in October 2011, in which they went into Somalia to fight the Al-Shabaab.
A magistrate’s court sentenced Kololo to death for kidnapping and robbery with violence. He was given a further seven years’ imprisonment for the kidnapping.
Kololo has since appealed against the sentence and wants it overturned. His appeal followed the discovery of new evidence obtained from the United Kingdom, which he believes will absolve him of any wrongdoing. Through his lawyer Alfred Olaba, Kololo says the evidence was erroneously omitted during his trial, leading to his unfair conviction.
In a notice of concession, senior prosecution counsel Jami Yamina confirmed the DPP’s position that Kololo was convicted based on hearsay evidence that did not properly link him to the offence.
“A court, properly applying its mind to the facts and the law, could not possibly arrive at factual findings and conclusions that the magistrate reached, that are not based on the evidence on record or are purely based on hearsay testimony, thereby rendering the conviction unsafe,” said Mr Yamina.
He added: “Evidence adduced, when compared to the findings of the magistrate court, it is clear they are not based on records or submission of the counsel.”
Further, Mr Yamina stated that senior Metropolitan Police Detective Neil Hibberd’s testimony on the arrest and the crucial “tanga” (plastic) shoes evidence that linked Kololo to the scene of crime was purely hearsay.
In the trial, in which Kololo was sentenced to death, Mr Hibberd had been described as a key witness, but the DPP has affirmed that his evidence was based on hearsay and that he did not disclose the source of his information regarding the arrest and shoes.
“This case was purely based on circumstantial evidence, and the DPP, having looked at this appeal, conceded to it,” said Mr Yamina.
According to the DPP, no further evidence or witness was called on the circumstances surrounding the recovery of the items allegedly stolen from Ms Tebbutt and their connection to Kololo and the offence of robbery with violence that he faced.
Owing to these reasons, the DPP has urged Malindi High Court Judge Stephen Githinji to find it unnecessary to use the additional evidence in the case, noting that Kololo’s appeal can fairly be resolved without considering it.
“The DPP denies knowledge or possession of any additional and exculpatory material throughout the trial and is entitled to the opportunity to adduce evidence in rebuttal, but which process is unnecessary, given that the appeal has been conceded without reaching the new evidence. Reasons whereof the appeal is allowed, the conviction is quashed, the sentence set aside and the appellant set free,” the prosecution said.
Yesterday, Mr Olaba told the court that the new evidence indicates that his client did not put on the tanga shoes that allegedly connected him to the crime.
“The complainant did not identify Kololo as the perpetrator. The offence of robbery with violence had not been proved at the end of the trial because Ms Judith told the magistrate during her testimony that the items stolen from her were returned. The items were not recovered from Kololo,” said Olaba.
Kololo’s jailing was based on this evidence as the trial magistrate ruled that the tanga shoes were his and the impressions found at the scene were made by them. However, evidence produced in court by an expert witness from the UK indicated there was no evidence the shoes belonged to Kololo.
The judge allowed Kololo’s application for bond pending appeal, setting it at Sh100,000 with one surety of a similar amount.
