The state on Wednesday secured a landmark conviction in the fight against terrorism and violent extremism.
This is after a magistrate ruled that a Mandera county driver attached to two kidnapped Cuban medics was guilty of abetting a terrorist act.
Issack Ibrein Robow was the driver attached to Landy Rodríguez Hernández and Assel Herrera Correa.
The two Cuban doctors were posted by the national government to Mandera County Referral Hospital.
They were abducted on April 12, 2019 by militants believed to be members of the al Shabaab terror group as they were heading to work from their hotel in Mandera town.
A police officer, attached to the two doctors as bodyguard, was shot dead during the attack.
Days later, Robow who was driving the car in which the doctors were travelling in, was charged with terrorism for alleged complicity in the kidnapping of the medics.
Robow faced five counts including commissioning of a terrorist act, kidnapping and hostage-taking, aiding and abetting a terrorist act and obtaining Kenyan registration by false pretence.
He denied all the charges.
On Wednesday, Nairobi principal magistrate Martha Nanzushi ruled that Robow was guilty of kidnapping the medics and aiding a terrorist act.
She said the prosecution did not prove Robow was a Somali national and had been in Kenya illegally as was claimed.
“I find the accused guilty on counts one, two, three and four as charged. No sufficient evidence adduced to this court in respect to count five,” the magistrate said.
Robow was an employee of the county for over 20 years before the kidnapping of the foreign doctors.
The magistrate said the prosecution proved its case beyond reasonable doubt.
The court however acquitted the accused on the fifth count of unlawfully being in the country.
Nanzushi ruled that although the prosecution had alleged that Robow was not a Kenyan national, it failed to prove that he is a Somali.
While convicting him, the magistrate relied on circumstantial evidence and noted that the accused failed to act during the incident.
"If the driver jumped from the motor vehicle and left the engine running, the circumstances would have been different," she said.
The court added that the driver was not a target in the kidnap since the abductors did not force him to stop. He stopped willingly, she said.
In normal circumstances, the kidnappers target the driver first but in the said incidence, they did not, the court ruled.
The magistrate said that from her analysis, it was clear the gunmen targeted the officer seated in the front passenger seat.
That was the police bodyguard assistant police corporal Mutundo Kitambo who was shot dead.
“It only suggests that they were well aware of the target's position, otherwise the most random attack would have targeted the driver to immobilise the car before proceeding to get the target,” the magistrate said.
The court heard that the vehicle, which Robow was driving, had five occupants, one died, two escaped and two were kidnapped.
The circumstances in the case were that the two doctors were to be kidnapped, the armed officers were to be gotten rid of, luckily one managed to escape but the accused was to be unharmed.
The magistrate further found that if they wanted to harm him, they would have done so since the proximity was such an advantage to the assailants.
"The accused is a victim of ignorance which of course is not a defence." the court ruled.
In the first count, Robow was charged with committing a terrorist act which resulted in the death of Kitambo.
Kitambo was initially attached to the critical infrastructure protection unit (CIPU) in Mandera county.
He was later deployed to escort duties of Dr Assei Herrera Correa and Dr Landy Rodriguez Hernandez, the two Cuban medics who were seconded to the Mandera County Referral Hospital.
The prosecution said Robow committed the offence on April 12, 2019, at around 0900 hours with others who were not before the court.
Isaack faced another count of kidnapping and taking hostage of Herrera and Hernandez.
He was the driver of a government vehicle registration number GKA 221U, a Toyota Hilux which authorities said he used to facilitate the kidnapping and hostage-taking of the two doctors.
The abduction thrust Kenya on international headlines with western nations reacting with advisory alerts for their nationals in Kenya.
There were claims in October 2020 that al Shabaab had released the Cuban doctors from captivity after negotiations with both the Kenyan government and Cuba but those allegations were swiftly dismissed by authorities as fake news.
Almost three years on now, the medics remain in the hands of their captors who are believed to have taken them across the border into Somalia where al Shabaab has control in large parts of the country.
The doctors were part of a contingent of 100 Cuban doctors who had come to Kenya to work under an agreement between the two countries.
Rodriguez is an orthopaedic surgeon and while Herrera is a specialist in general medicine.
After their kidnapping, some of their colleagues who were near the Kenya-Somalia border like in Lamu and Garissa counties were moved to a safer places.
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