Win for death row inmate as DPP blocked from adducing new evidence
Ali Babitu Kololo during his trial in 2012.
Director of Public Prosecutions Noordin Haji has two weeks to respond to new evidence from the UK filed by an inmate serving a death sentence for the killing of British tourist David Tebbut and kidnapping of his wife Judith Tebbutt in 2011.
But the DPP will restrict his response to the new evidence filed by Ali Kololo.
Malindi High Court Judge Stephen Githinji directed that the DPP only challenge the new evidence by cross-examining the appellant’s witness.
Justice Githinji also allowed Mr Kololo to bring the new evidence that he believes will lead to the quashing of the death penalty.
Mr 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 David and abducted his wife.
Ms Tebbut’s kidnapping was one of the cases believed to have triggered the Kenya Defence Forces’ Operation Linda Nchi in October 2011.
Records from the Magistrate Court show that he was convicted after the court found that he had led the attackers in the strike on the resort.
The court said the tanga (plastic) shoes that left marks at the crime scene were his.
But Mr Kololo now wants this sole evidence that sent him to prison re-examined as the new evidence that he obtained from the UK could prove the contrary.
He was convicted of kidnapping and robbery with violence. He appealed against the conviction and sentence, lamenting that certain evidence that would have exonerated him from the offence was omitted.
He believes the new evidence will help him prove his innocence.
His lawyer, Alfred Olaba, argues the new evidence had been erroneously left out during the trial.
The evidence includes a forensic analysis of the tanga shoes whose marks were found at the crime scene.
Both the High Court and the Court of Appeal have allowed the appellant to use the new evidence to support his appeal.
This additional evidence was prepared in the UK but was allegedly omitted from the testimony of a witness who testified against Mr Kololo in the Magistrate Court in Lamu.
The defence alleges that the omitted evidence had indicated that Mr Kololo had never worn the tanga shoes and could not have been at the murder scene.
The documents from the UK show that the recovered shoe marks were of poor quality and some features did not align.
Lawyer Olaba argues this indicated that Mr Kololo could not be linked to the crime as he had been nowhere near the scene.
The case will be mentioned on October 25.
