A mix-up in the make of a mobile phone recovered from a Tanzanian terror suspect, who has been in a Kenyan prison for the past four years, has won him freedom despite facing 18 counts of terrorism-related charges.
Omar Ilole Shija was staring at a lengthy prison term after being arrested and charged with multiple terrorism offences. Had he been found guilty, he would have been imprisoned for more than 40 years.
The charges included being a member of Al-Shabaab, collecting information vital to the commission of a terrorist act, and possession of articles connected to terrorism, among others.
So, was he a terrorist, a herbalist, or simply a victim of wrongful prosecution? Or did fate, conspiring with sheer luck, hand Shija his freedom — despite him having resigned himself to a lifetime behind bars?
Central to the prosecution’s case was a Techno mobile phone allegedly recovered by the Anti-Terror Police Unit (ATPU) from the house where Shija was arrested. The phone reportedly contained videos and audio clips featuring extremist content.
These videos, played in court, contained the radical teachings of slain controversial Muslim cleric Sheikh Aboud Rogo.
The court heard that Shija is believed to be terror operative with connections in Somalia, Kenya, Tanzania, Congo, and Mozambique. He is believed to be linked to ISIS and was en route to join Al-Shabaab when he was arrested, found without proper identification documents or a fixed abode.
According to the prosecution, the material found on the phone promoted extremist ideologies that could potentially persuade individuals to join Al-Shabaab. A forensic analysis of the mobile phone revealed that the videos and audio clips had been received via Telegram.
Despite what appeared to be damning evidence, Senior Resident Magistrate Rita Orora shifted her focus to the make and features of the mobile phone in question to determine its ownership.
From the onset of the trial, Shija had vehemently maintained that the Techno phone produced in court was not his, and not the one he was found with during the arrest.
He stated that his device was a Techno Spark 7, whereas the inventory presented to court described the exhibit as a Techno Camon phone, black in colour, bearing IMEI number 358893643338318.
Upon inspection of the actual mobile phone subject to the criminal proceedings, the court found that the device was white in colour with a black plastic cover — an observation confirmed by the investigating officer.
“When one opens the back cover, the make of the mobile phone is indicated as Infinix. It contains two IMEI numbers: 355954072832321 and 355954072832339. These numbers are completely different from those in the charge sheet. The court, therefore, cannot conclude that the phone belonged to Shija,” said the magistrate.
The magistrate also questioned where the chain of custody had broken down, since the mobile phone subjected to digital analysis was not the same device presented in court.
“Based on the above analysis, the prosecution has failed to prove that Shija was in possession of articles connected with the commission of a terrorist act. For these charges, he is acquitted,” she ruled.
This critical mix-up resulted in Shija’s acquittal on 17 counts related to collection and possession of materials associated with terrorism.
Police Constable Gordon Aluko, a cyber-forensics expert, told the court he received exhibits—including a Techno phone with IMEI numbers 358893643338318 and 358893643338336, fitted with Safaricom and Airtel SIM cards, and a 4GB micro SD card—from his colleague Kennedy Karanja of the Mombasa ATPU.
“The exhibit memo form contained a request from the investigating officer for extraction of evidence related to terrorism,” he stated.
Upon analysis, Aluko confirmed the presence of audio and video clips containing terrorist content. However, under cross-examination by Shija’s lawyer, Mr Chacha Mwita, Aluko admitted he did not know who had sent the videos to the phone or whether they had been forwarded.
Police Constable Jacktone Katana told the court that he arrested Shija on November 19, 2021 in Kiembeni, finding him in the company of Peter Josiah inside a house.
“We conducted a search and recovered two mobile phones. Each individual identified their respective phone. One of the phones was a Techno Spark 4, which belonged to the accused,” he said, adding that his colleague carried the phones as he escorted both suspects to the police station.
He prepared an inventory which the accused refused to sign. All the officers who testified claimed to have submitted the mobile phone recovered from Shija for forensic analysis. However, the court found this claim to be false, as a different phone was presented as the exhibit linked to Shija.
On the charge of being a member of Al-Shabaab, the magistrate ruled that there was insufficient evidence to support the serious allegation. The prosecution’s case was that Shija was a member of the terrorist group due to the presence of extremist videos on the phone.
The magistrate acknowledged that the video clips contained jihadist and extremist content, promoting terrorism.
“In my humble view, the prosecution failed to connect the videos in question to the accused being a member of the terrorist group,” she said.
Magistrate Orora concluded that the prosecution had not taken adequate steps to demonstrate a clear link between Shija’s actions and those of the outlawed organisation. Therefore, mere possession of the videos was not sufficient for conviction.
Ultimately, the prosecution only succeeded in proving one charge against Shija — that of being unlawfully present in Kenya without valid documentation.
“I find that the prosecution has proved their case beyond reasonable doubt, and he is convicted for this offence,” the magistrate ruled.
For this offence, Shija was sentenced to six months’ imprisonment, backdated to the day of his arrest.
“Since Shija has already completed his sentence, he is hereby repatriated to his country of origin,” Ms Orora stated during sentencing last week.
In his defence, Shija denied all terrorism-related charges, maintaining he is a Tanzanian herbalist who came to Kenya in 2021 at the invitation of his brother-in-law, Caleb Samburu, to treat a sick patient.
Shija testified that he had treated similar conditions before in Kuria, Migori, and came with herbal medicine after obtaining temporary travel documents.
He stayed at his father-in-law’s home before travelling to Mombasa, where he treated the patient, who later gave him Sh10,000 in appreciation.
On his way back to Tanzania with another brother-in-law, Josiah , he was arrested by armed men, blindfolded, and accused of being a terrorist.
“I have no ties to Al-Shabaab or ISIS and has never used Telegram,” he said.
He denied any knowledge of radical cleric Rogo, whose videos were allegedly found on the seized phone, and his identity as a herbalist affirmed by Josiah, his brother-in-law.
