- Kiambu High Court Judge Dorah Chepkwony set aside a decision of the trial court that declined to allow Chief Inspector Joseph Kolum to give evidence in the case.
- Kolum, the Prosecution thirty thirty-eighth witness was to give evidence obtained from forensic examination of the accused person's mobile phones.
Image: FILE
The office of the Director of Public Prosecutions has been given the green light to recall one of its witnesses and give crucial evidence they are relying on to pin down three men facing trial over the Dussit D2 terror attack.
Kiambu High Court Judge Dorah Chepkwony set aside a decision of the trial court that declined to allow Chief Inspector Joseph Kolum to give evidence in the case.
The Judge said the evidence obtained was key for the Prosecution of the serious offences faced by the accused persons.
Kolum, the Prosecution thirty thirty-eighth witness was to give evidence obtained from forensic examination of the accused person's mobile phones.
But the accused objected to the production and use of such electronic evidence saying the same was obtained without a search warrant.
Based on this, the accused persons argued that the evidence would not be admissible as it was illegally obtained.
The Magistrate handling the case agreed with them and the case proceeded without the evidence of the inspector.
Aggrieved, the DPP moved to the high court challenging the decision of the trial court.
They acknowledged the lack of a court order before examining the mobile phones but at the same time argued the decision has the effect of putting national security at risk and adversely affecting ongoing criminal trials in other courts.
The Prosecution explained to the court that after the attack, about 177 mobile phones were exploited and other recoveries were made from Mucatha village within Kiambu county.
"Exploitation of these phones led to the arrest of accused persons and the evidence retrieved," they said.
The Judge in allowing the evidence by Kolum said "Its admission is warranted bearing in mind the threat to national security and public safety."
The right to privacy, she said, is fundamental but not absolute and can be limited under certain circumstances.
She faulted the trial court for failing to take into consideration that Kenya has faced not once but several occasions severe impacts of terror attacks and threats including death, loss of property and economic harm.
"Threat to national security and public safety during and after the Dussit 2 attack must have necessitated urgent action, and the evidence obtained was crucial for the Prosecution of the serious offences faced by the accuser persons," the Judge said.
Based on this, Chepkwony said the Prosecution is at liberty to recall the inspector and produce the relevant evidence touching on the electronic devices.
"The electronic evidence obtained from the forensic examination of the accused persons' mobile phones shall be admissible in the ongoing trial. The decision of the trial court is hereby set aside," she ruled.
In the case Mire Abdulahi, Hussein Mohamed Abdile and Mohamed Abdi Ali are facing multiple charges including committing acts of terrorism that resulted in the death of 21 people in 2019.
The charges include aiding and abetting the commission of a Terrorism act and obtaining documents by false pretence, conspiracy to commit a Terrorism act and being in the country unlawfully.
The Prosecution has since closed its case after calling 45 witnesses.
They are however free to recall the inspector before the court decides whether the accused persons have a case to answer.