How pressure by UK group saved Lamu terror suspect from death row
Mr Ali Kololo,who was accused of being involved in the killing of Mr David Tebbutt and the abduction of his wife Judith.
The DNA analysis conducted on Mr Ali Babitu Kololo failed to link him to the murder of British national David Tebbutt and the kidnapping of his wife Judith Tebbutt.
A forensic report produced before the High Court in Malindi indicated that Mr Kololo’s DNA did not match with most of the components extracted from the crime scene in Lamu, where Mr Tebbutt was shot dead before his wife was kidnapped while on a holiday in 2011.
Senior Forensic Medical Examiner for the Metropolitan Police Service Prof Jason Payne-James concluded in his report that there was no DNA evidence to support Mr Kololo’s conviction.
“There is no indication of the presence of DNA from Judith and or David in any of the DNA samples tested,” he told Malindi High Court Judge Stephen Githinji via a video link from the UK.
The forensic examiner at Queen Mary University further indicated that additional evidence demonstrates that most of the DNA components matched the profile of Mr Kololo, which is to be expected given that he contributed to a portion of the blood.
“The absence is neutral. It may indicate there was no contact, or if there was contact, no trace was left. There is no DNA evidence to link Kololo with either David or Judith, and there is no DNA evidence to support his conviction,” he said.
He said that most of the DNA components found on exhibits collected from Mr Kololo matched his profile but where it could be determined, there was no additional DNA from David or Judith.
The court also heard that there was no blood on the clothes that Mr Kololo wore when he was arrested.
According to this witness, that demonstrated that any blood from the deceased deposited on his clothing, by way of spray or contact staining, could have remained on his clothing.
The police prosecutors who handled that case in 2011, however, did not suggest, as part of the case, that Mr Kololo had any contact with the deceased.
In her testimony before the trial magistrate, Ms Judith said Mr Kololo was not one of the persons in the room when she and her husband were attacked.
The forensic examiner said that the absence of blood staining or other DNA deposits from the deceased or Judith is of neutral evidential significance.
“In conclusion, there is no DNA evidence to support Mr Kololo’s conviction, but it does not definitively exclude him from involvement. It is one factor to take into account in the overall consideration of the case, which could and should have been taken into account if proper disclosure was made,” he said.
On whether there was any gunshot residue (GSR) found on Mr Kololo’s clothes, Mr Jason noted it was unclear to him as to whether any testing of the GSR stubs was carried out, as there are no GSR test results or analysis in the additional evidence.
He, however, said that if Mr Kololo had been close to the firearm used to kill the deceased, it would be expected that GSR would be deposited on his clothing.
The witness further noted that the absence of GSR is one factor that should have been taken into account if proper disclosure was made.
“It may indicate that there was no firearm activity, or if there was, no residue was collected on sampling. Accordingly, there is no GSR evidence to support his conviction,” he said.
However, the court heard that it was not suggested as part of the prosecution case that Mr Kololo was close to the deceased when he was shot nor is there any suggestion that he was in contact with the attackers after the killing.GSR stubs were taken from the clothes of Mr Kololo.
GSR stubs are considered to be the most efficient form of collecting gunshot residue which comprises microscopic particles of metal created when ammunition is discharged from a firearm.
The witness explained that the particles form a cloud that can reach a distance of up to three metres from the firearm.
“If testing of the GSR stubs had been carried out, I would have expected the analysis or results to have been disclosed. It may be that the GSR stubs were tested, but that the results were not disclosed,” he said.
The witness also commented on the critical issue of tanga (plastic) shoes, which formed the basis upon which Mr Kololo was convicted.
He said the additional evidence regarding the footwear marks or footprints is at best neutral, adding that the footwear marks may have been created by any other shoe with a similar tread pattern.
The witness further said that the additional evidence relating to footprint analysis does not support the conclusion that the tanga shoes allegedly taken from Mr Kololo made the shoe prints found at the scene.
“In conclusion, there is no evidence in the materials I have seen to support an opinion that the footwear marks or footprints referred to were created by the tanga shoes. Additionally, the footwear analyst does not appear to have made any reference as to the ubiquity of similar tanga type shoes in the locality,” he said.
The additional evidence, he said, raises serious doubts as to the safety of the magistrate’s conclusion that the tanga shoes allegedly taken from Mr Kololo made the same shoe prints found at the scene.
The new evidence was admitted to the court after Maya Foa, Director of Reprieve, the UK-based legal action group, piled pressure on the UK government to provide the additional evidence, which had been omitted from the initial trial.
The organisation has been assisting Mr Kololo.
Through his advocate Alfred Olaba, Mr Kololo has appealed against a death sentence that was imposed on him for the offences of robbery with violence and kidnapping with the intention to murder.
He has maintained his innocence saying he was not involved in the robbery.
The Director of Public Prosecutions Noordin Haji has conceded to the appeal and has asked the court to determine it without necessarily admitting new evidence.
The DPP’s office, which did not take part in the prosecution of Mr Kololo before the magistrate court in 2011 has indicated that he may have been wrongly convicted.
