The Office of the Director of Public Prosecutions (DPP) has received approval to recall a key witness in the case against three men on trial for the Dusit D2 terror attack. Kiambu High Court Judge Dorah Chepkwony overturned a lower court’s decision, allowing Chief Inspector Joseph Kolum to present crucial evidence tied to the prosecution’s case.
Inspector Kolum, who is the Prosecution’s 38th witness, was set to testify on forensic evidence gathered from the accused men’s mobile phones. However, the defense had previously objected, claiming the evidence was obtained without a proper search warrant, making it inadmissible. The trial magistrate sided with the defense, excluding Kolum’s testimony from the proceedings.
Unsatisfied with this ruling, the Director of Public Prosecutions (DPP) took the matter to the High Court, arguing that excluding the evidence could compromise national security and set a dangerous precedent for other ongoing criminal trials. While acknowledging that the phones were examined without a court order, the Prosecution argued that the circumstances following the terror attack necessitated urgent action.
The court was informed that 177 mobile phones were seized and examined, leading to the arrests of the accused individuals. The Prosecution maintained that this evidence was critical for proving the charges against the men.
In her ruling, Judge Chepkwony emphasized the balance between the right to privacy and public safety. While privacy is a fundamental right, she explained, it is not absolute and can be restricted in cases of national security. She criticized the trial court for failing to recognize the gravity of the Dusit D2 attack and the broader threat of terrorism in Kenya, which has caused widespread loss of life, property damage, and economic harm.
The Judge concluded that the Prosecution is permitted to recall Inspector Kolum to present the electronic evidence related to the mobile phones. She further ruled that this evidence will be admissible in the ongoing trial, setting aside the trial court’s previous decision.
The three accused—Mire Abdulahi, Hussein Mohamed Abdile, and Mohamed Abdi Ali—face several charges, including committing acts of terrorism that resulted in the deaths of 21 people during the 2019 attack. Additional charges include aiding and abetting terrorism, conspiracy to commit a terrorist act, and being unlawfully present in Kenya.
The Prosecution has closed its case after presenting 45 witnesses, but is now allowed to recall Inspector Kolum before the court determines whether the accused have a case to answer.