About the last thing Judith Tebbutt remembered was her husband David turning off the lights and getting into bed. Then, she eventually told detectives, they held hands as they drifted off to sleep.
Three hours later her nightmare began. A brutal gang burst into the hut where the Tebbutts were staying at the remote but luxurious Kiwayu Safari Village in Kenya on September 11, 2011. They shot David dead and took Judith hostage. After beating her with a rifle butt, they dragged her to the beach and took her by boat to Somalia, where she was held in primitive conditions for more than six months.
A seasoned team from Scotland Yard’s Counter-Terrorism Command reached Kiwayu two days after her abduction. The evidence given by its leader, Detective Superintendent Neil Hibberd, would later prove crucial in the trial of the only man charged in connection with Judith’s kidnap – Ali Kololo, an illiterate Kenyan woodcutter and gatherer of wild forest honey.
Convicted and sentenced to death by hanging, he is now on death row in a tough jail in Mombasa
After the 16-month trial ended last year, the British Government treated this as a triumph. ‘Welcome conviction… today of Mr Kololo for his role in Tebbutt kidnap and murder,’ tweeted Neil Wigan, the British Ambassador to Somalia.
But The Mail on Sunday can reveal that if Kenya hangs Kololo, it is likely to be executing an innocent man.
We can disclose that:
- Astonishingly, Mrs Tebbutt said that until she was shown photos of Kololo after his arrest, she had never seen him before. She told police she didn’t recognise him being present either when her husband was shot or when she was in captivity.
- Kololo was said to be wearing shoes that matched footprints at the crime scene when he was arrested. But the arresting officer told the court that Kololo was not wearing shoes at all – and he couldn’t fit into those that supposedly matched the prints as they were two sizes too small.
- The trial was held in a language in which he was not fluent, and for almost all of it he had no defence lawyer. He had to cross-examine witnesses including Mrs Tebbutt and Mr Hibberd on his own.
The conviction is deemed so unsafe it faces a High Court challenge in London, led by Lord Macdonald, a former director of public prosecutions.
The transcript of Kololo’s trial and key statements taken by Scotland Yard detectives have been obtained by this newspaper. The documents show the main reason for Kololo’s arrest was a decision by Kenyan police to quiz anyone seen in the vicinity of the Kiwayu Safari Village.
‘We told hotel workers to arrest anybody seen around the premises and report to police,’ Simon Mutiso, from Kenya’s Anti-Terrorism Police Unit, told the court.
Kololo finally does have a local lawyer, Alfred Olaba, who will be fighting his appeal in Kenya. He said yesterday: ‘There were no clues that led particularly to him. They just took him into custody and then tried to make the evidence fit.’
Of course, by the time the manhunt started, the kidnappers and Mrs Tebbutt were in nearby Somalia.
At his trial, Kololo insisted that he himself had been a victim of crime: deep in the forest, ivory poachers had stolen his shoes and his tools – a power saw and a machete called a panga.
At his trial, Kololo insisted that he himself had been a victim of crime: deep in the forest, ivory poachers had stolen his shoes and his tools – a power saw and a machete called a panga.
Escaping their clutches, he came across a police vehicle near Kiwayu. He approached it to report the theft and promptly became a suspect – mainly, it seems, because he said he thought the poachers were Somalis.
Kololo and his family are desperately poor. They live in the village of Roka, a few miles from Kiwayu. Kololo’s wife divorced him after the trial so his two sons, aged five and seven, live in a one-room mud-hut with Kololo’s father, Babitu, who is in his 80s and blind.
Babitu said that without his son, the family has almost no income: ‘We depend on help from anyone who comes to visit us.’ Babitu’s elderly wife weaves mats, but could make less than £1 each from selling them.
Babitu is sure his son is innocent: ‘I cry thinking of him and the pain and hardship he is suffering. All we can do is pray. But we are happy that good people have come to be his lawyers.’
In his trial testimony, Kololo claimed he was tortured. As well as beating him, he said police ‘pulled my private parts’ which had made him incontinent. Police denied this, but when he was first due in court in Lamu, two hearings had to be adjourned because he needed hospital treatment.
Kololo said at his trial: ‘They wanted me to admit I had witnessed the killing of the white man and kidnapping of the white woman.’ He did not confess.
Enter the Yard's finest
Neil Hibberd arrived in Kiwayu two days after Kololo’s arrest, accompanied by six detectives. They were later joined by a ballistics expert, a crime scene manager, a photographer, a blood spatter analyst, and a fingerprint specialist.
By now, their Kenyan colleagues were suggesting that Kololo’s role had been to guide the gang to the ‘banda’, the hut where the Tebbutts were staying. Surprisingly, perhaps, the Yard team did not interview Kololo, though if the Kenyan theory was true, he presumably must have had vital clues to the gang’s whereabouts and identity.
In any event, the Yard’s 21st Century expertise was to have little impact: there was no forensic evidence linking Kololo to the crime.
But although he failed to come up with any evidence, Mr Hibberd’s stature as a senior Yard officer meant his opinions carried huge weight. Before the trial started, he set down a formal, written statement, which was later read out in court. Its influence was enormous: when Judge J.M. Munguti delivered his final judgment, he closely echoed both the reasoning and the language of Mr Hibberd’s account.
In Mr Hibberd’s view, the critical piece of evidence was a pair of ‘Tanga shoes,’ a type of plastic sandal. According to Mr Hibberd, distinctive Tanga footprints were found leading from the beach where the gang landed their boat to the bandas. ‘These appear to be the shoeprints of someone searching the bandas for potential victims,’ he said.
He added in his statement: ‘Kololo was arrested wearing Tanga shoes. It is extremely unusual to find these at the resort. None of the staff are allowed to wear these shoes. All of the suspects in the boat [with Mrs Tebbutt] were barefooted.’
Mr Hibberd went on: ‘Tanga shoes are predominantly worn by Somalians and are not allowed to be worn at Kiwayu Safari Village. To have a set of Tanga footprints at the resort is highly unusual and significant.’ He repeated these claims in court.
An unfair trial?
Apart from the lack of forensic evidence, the prosecution faced a further difficulty. Interviewed by police after her release, Mrs Tebbutt, of Bishop’s Stortford, Hertfordshire, was clear the gang had turned the lights on when they burst in. But when detectives showed her photos of Kololo, she said: ‘Prior to seeing these images, I had never seen this man before. He was not one of the men who took me out of the banda, who were present on the boat or held me during my time in captivity.’ It was possible there had been someone else present grappling with her husband, but if so, she had not seen him.
There is no legal aid in Kenya other than for defendants charged with murder, and Kololo was ‘only’ charged with robbery with violence and kidnapping. A lawyer arrived to represent him at one hearing, but did not bother to speak to him.
For the whole of the prosecution case, dragged out over months, Kololo had no lawyer. Moreover, he is not fluent in Swahili, the language in which the trial was conducted. He asked repeatedly for an interpreter to translate into his mother tongue, Boni – but was refused.
Mr Olaba said: ‘A totally uneducated man, he was forced to cross-examine witnesses speaking in a language he did not fully understand. To make matters worse, Mr Hibberd and Mrs Tebbutt gave evidence in English, which he doesn’t know.’ Their evidence was translated into Swahili.
So what of the Tanga shoes? They were produced in court as an exhibit, but none of those who first came into contact with Kololo when he emerged from the forest mentioned them. And as for Mr Hibberd’s claim that they were worn mainly by Somalis, several witnesses said they were common in Kenya.
Mr Hibberd admitted they did not bear Kololo’s fingerprints. If they were tested for his DNA, this was never mentioned. Nor were there any photos of the footprints.
Astonishingly, Corporal Geoffrey Loldoss, the Kenyan officer who arrested Kololo, told the court that the defendant ‘was not wearing any shoes’.
Almost at the end of the trial, Mr Olaba agreed to represent the defendant for free. Aware that the shoes were too small, he asked Kololo to try them on. Mr Olaba said yesterday: ‘He couldn’t get into them at all, much less walk.’
It was all to no avail. On July 27 last year, the judge convicted Kololo and decreed he ‘suffer death, as provided by law’.
Death Row, Mombasa
Scotland Yard and the Foreign Office have agreed to respond to the pending High Court action by June 4. The action, brought by the human rights charity Reprieve, asks the court to issue a statement saying the involvement of UK authorities was unlawful because Kololo’s trial was an abuse of natural justice, and – because he faced a death sentence – a breach of guidelines that say British police may offer only ‘limited assistance’ when a suspect faces such punishment.
Scotland Yard refused to comment on the case. The Foreign Office said the Met’s help followed ‘assurances from the Kenyan authorities that UK assistance would not directly or significantly contribute to a violation of human rights and/or international humanitarian law’.
But Reprieve’s Maya Foa said: ‘I fail to see what assurances they can have been given when he was facing what amounted to a mandatory death sentence, and a farce of a trial.’
Meanwhile, Kololo languishes on death row at the notorious Shimo la Tewa maximum security prison in Mombasa. One source said: ‘Shimo la Tewa is one of the worst places in Kenya. Just its name instills fear when prisoners are told they are to be moved there.’
Kenya has not carried out an execution since 1987, but Mr Olaba pointed out this policy could change with the government or shifting political whims.
The Mail on Sunday approached Mrs Tebbutt via publishers Faber and Faber, where her husband was finance director and which published her account of her ordeal, A Long Walk Home. A spokesman said she could not make any comment.
Mr Olaba said: ‘A favourable judgment from the court in London would help Kololo enormously. It could tip the balance. Ultimately, it could save his life.’
Culled from Dailym
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