Mr Ali Batitu Kololo has been behind bars for 10 years over the murder of a British tourist David Tebbutt and the kidnapping of Tebbutt’s wife Jude in 2011.
He was tried, convicted, and sentenced to suffer death for robbery with violence. The sentence was however commuted to life.
However, new details on the investigations on the case now expose Kenya’s criminal justice system underbelly. The police, the prosecution, and the judiciary nailed an innocent man.
Somali pirates killed Tebbutt while touring Lamu in 2011, kidnapped his wife, and held her for six months.
Investigations by UK’s Independent Office for Police Conduct (IOPC) on how a senior Metropolitan Police Officer Neil Hibberd conducted himself during investigations and hearing of the case reveal that he lied to the Kenyan court.
And most importantly, he hid crucial forensic evidence that would have assisted the court to determine whether Kololo committed a crime.
The UK police oversight body says that were it not that Hibberd is now a retired officer, he would face a charge for gross misconduct. He retired on December 15, 2017.
“… No disciplinary proceedings can be brought against him. Had Mr Hibberd still been serving in the police, there is sufficient evidence on which a reasonable and properly directed panel could, on the balance of probabilities, find misconduct. If in my opinion this threshold is met, I then determine the severity of the case to answer,” IOPC says.
In an interview with the British Broadcasting Corporation, Mrs Tebbutt who was freed after her son negotiated for a ransom also believes that Kololo was the wrong person to pay for the sins of her kidnappers and her husband’s killers.
She stated that she is unable to move on, as an innocent man has been languishing behind bars for a decade now.
“The one thing that is still really unsettling and unsatisfying is that Mr Kololo has been in prison for 10 years and I believe that he is innocent,” she laments.
“He looked like a rabbit in headlights… This man looked frightened. And he had every right to be frightened because he’s been accused of something that he didn’t do… He was not there on the night, he was not part of the group that held me, I’ve never seen him before and from what I understand, he is innocent.”
The court of Appeal record exclusively in our possession reveals that Mrs Tebbutt was not able to identify Kololo as one of the assailants during the trial.
Hibberd led a Scotland Yard counter-terrorism team that was sent to Kenya to hunt for killers and murderers. His team was to work alongside Kenyan police.
Subsequently, he was a star witness, leading to the conviction of Mr Kololo.
The investigations concluded that between September 11, 211, and July 29, 2013, while in Kenya, Hibberd acted outside his mandate and authority by receiving information from Kololo knowing that it may have been obtained through torture.
Hibberd is also accused of writing a statement that contained opinions and hearsay.
“Based on available information, I am of the view that there is insufficient evidence upon which a reasonable tribunal, properly directed, could find misconduct/gross misconduct in relation to Mr Hibberd’s statement containing hearsay and opinion,” IOPC’s document sent to justice lobby Reprieve read in part.
During the trial, Hibberd told the court that forensic evidence confirmed that Kololo’s shoes were the same ones, which had left impressions at the scene.
However, investigations now detail that the forensic evidence was inconclusive on the link between the tanga shoes and the footprints on the beach.
In 2016, Reprieve, on behalf of Kololo wrote to the Department of Professional Standards, and Metropolitan Police seeking to have investigations into what happened before and during the trial.
The charity group in its letter indicated Kololo was a woodcutter and a honey gatherer. He was arrested by the security guards from the resort where The Tebbutts were while walking in the direction of the local police station a day after the incident.
He does not comprehend English, a language he was tried in. From the letter, it emerges that he was not represented during the trial and he only received only two of the 20 witness statements from the prosecution.
“He was handed over to the General Services Unit of the Anti-Terrorism Police Unit (ATPU), who interviewed him and took a statement. Kololo has consistently alleged that he was tortured and mistreated by the Kenyan officers who arrested him, including in open court,” the letter written by Moya Foa, Reprieve’s director of Death Penalty team read in part.
Following the release of the new information, reprieve’s Director of Advocacy Dan Dolan said the man in jail is suffering for sins he did not commit.
“It is vital that the Kenyan courts are made fully aware of the many flaws in the evidence provided by DCS Hibberd,” said Dolan.
Initially, the UK authorities had declined to avail the evidence prompting Reprieve to file a case on behalf of Kololo at the UK’s High Court.
Meanwhile, Kololo had filed a case before High Court Judge Said Chitembwe seeking to have the forensic evidence produced before the court.
On March 17, 2016, justice Chitembwe allowed the evidence to be part of the court record noting that since Kololo was facing death, he ought to be given all chances to argue and rebut the allegations against him.
Aggrieved, the government appealed the decision before the Court of Appeal.
The State faulted Justice Chitembwe arguing that he erred for failing to find that a claim against the UK government and a judgment by a UK court did not extend to making an application to file additional evidence.
At the same time, it argued that he had filed his appeal beyond the nine months required by law.
Kololo’s lawyer Alfred Olaba told the Saturday Standard there is a pending appeal of the conviction.