Friday April 28, 2023
By Caroline Kimeu and Liz Ford
David Tebbutt’s widow ‘delighted’ as court rules conviction of Ali Kololo for robbery with violence was unsafe
Ali Kololo, centre, is escorted by police after he was sentenced in 2013 at a court in Lamu over his alleged involvement in the murder of David Tebbutt in 2011. Photograph: Joseph Okanga/Reuters
A man found guilty of being part of a gang of pirates who murdered a British tourist 12 years ago has had his conviction quashed by Kenya’s high court.
On Thursday, the high court in Malindi ruled his conviction was unsafe and set his sentence aside.
Judith and David Tebbutt were attacked by gunmen in September 2011 while on holiday at a luxury beach resort in Kenya’s northern coastal region of Lamu, along the Kenya-Somalia border. An armed group broke into their villa, killing David and kidnapping Judith, who was taken to Somalia, where she was held hostage until, according to reports, her son paid a ransom of £800,000 for her release.
Kololo, who has maintained his innocence, was sentenced to death in 2013
. His sentence was commuted to life imprisonment and he was held in Kenya’s Shimo la Tewa maximum security prison, known for holding some of the country’s most dangerous criminals.
Kololo was released on bail after an appeal hearing in February this year, pending the high court’s judgment.
At that hearing, Kenya’s director of public prosecutions (DPP) said Kololo should never have been convicted as the trial judge’s findings were “not based on the evidence on record”.
The DPP noted that the testimony of a senior Metropolitan police officer and the shoe print that supposedly linked him to the scene of the crime was “purely hearsay evidence”.
Last year, the BBC reported that the British police watchdog, the Independent Office for Police Conduct, had found detective chief inspector Neil Hibberd, who had helped the Kenyan police with the investigation and was a key prosecution witness, had “omitted key forensic evidence” during the trial. Hibberd, who has retired, told the BBC he “absolutely disagrees” with the watchdog’s findings.
Reprieve, the non-profit organisation of international lawyers and investigators that has been campaigning for Kololo’s release, said the former woodcutter had been tortured into a confession. He did not have a lawyer or interpreter at the trial, and did not understand most of the prosecution documents and proceedings, which were in English and Kiswahili – neither of which the Boni tribesman understood fluently.
“It is hard to talk of justice when an innocent young man has lost 11 years of his life to a rigged investigation and unfair trial, but today, Kenyan courts finally began to right this terrible wrong,” said Kololo’s lawyer Alfred Olaba. “I commend the director of public prosecutions for belatedly recognising that Ali should never have been convicted and thank the court for its ruling.”
Reprieve’s director Maya Foa added: “Ali Kololo’s trial was one of the most unfair imaginable. The imbalance of power in the courtroom was staggering, between the senior Metropolitan police detective testifying for the prosecution and the illiterate defendant being tried in a language he did not understand, without the aid of a lawyer for most of the trial … It is a tragedy that it took so long to reach this point when the injustice was apparent from the start.”
Judith Tebbutt has always maintained that Kololo was not part of the gang that killed her husband and held her captive, and has campaigned for him to have a fair trial. She said she believed he was made a “scapegoat”.
She said she was “delighted” to see Kololo walk free, but said it was “shocking and saddening” to think of what he has had to endure. “It should never have taken so long for his case to be put before the courts. So much seems to have been kept hidden and so many questions remain unanswered and I feel very concerned that the British police have been deeply implicated in this travesty of justice. An innocent man and his children have been denied a life together over the last decade.”
She added: “I vividly remember the first time I saw him via satellite in the courtroom looking shocked, confused and frightened. I maintain that he was not part of the group that murdered my husband, David, and then abducted me and held me hostage for six months. Over the last 10 years I have understood how unjust and unfair his original trial in Lamu was and how the balance of power was stacked against him.
Speaking to the Guardian before his appeal hearing in February, Kololo’s sister, Zuhuru, said her brother’s imprisonment had been very difficult for their family. He had been their breadwinner, and since he went to jail, she had raised his two children alongside her own.
She said while he was in prison, his two children “stopped calling me aunty and started calling me mum”.
Faced with the prospect of Kololo’s life term in jail, his wife remarried. “She was very young,” said Zuhuru. “Understandably, she couldn’t wait for him her entire life, so we had to let her go.”