Court admits evidence obtained without orders in DusitD2 terror attack trial

The High Court has allowed the Director of Public Prosecution (DPP) Renson Ingonga to use data collected without an order from 177 sim cards to argue his case against three suspects accused of participating in the DusitD2 terror attack.

In a landmark judgment that now gives the security agencies room to wiggle their way out of the red tape created by the law, Justice Dola Chepkwony ordered that the magistrate’s court should admit the evidence it rejected for being obtained without the court’s greenlight.

According to Chepkwony, terrorism and serious transnational crimes are a threat to the country and that of Kenyans, hence the scales of justice should tilt to protect the public. She said that the court should look at the whole picture to extract the truth without inclining on solving such a case through technicalities.

The Judge was of the view that terror attacks are done in secrecy and aided by technology and security agencies should be allowed to deviate where necessary from the rule book as those in it may opt to beat the system using the same rules.

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“Therefore, in this court's opinion, any attempt to comply with procedural safeguards may alert suspects or their intricate network, who then are likely to tamper with the evidence beyond recovery by the investigative agencies,” said Justice Chepkwony.

“It is also worth noting that the special character of terrorism, which frequently aims at causing mass casualty and serious destruction to both public and private property, often heightens the stakes when it comes to acquisition of evidence,” she said.

The Judge made the ruling in a case where Mire Abdulahi Ali, Hussein Mohamed Abdile and Mohamed Abdi Ali are accused of committing acts of terrorism, aiding and abetting terrorism acts, and conspiracy to commit terrorist acts.

Acting Deputy Director of Prosecutions Michael Sang swore an affidavit in support of the case. He explained that the decision to lock out electronic evidence would adversely affect ongoing criminal trials in other courts and a danger to national security.

In the case, Senior Principal Prosecution Counsel Duncan Ondimu told the judge that the three had agreed to have their gadgets exploited. He said that the lower court declined to admit the electronic evidence without considering the authenticity or accuracy of the same.

Ondimu asserted that the risk posed to the national security is sufficient to warrant exceptions regarding the evidence obtained without a court order.

On the other hand, Chacha Mwita, lawyer for the accused persons argued that there is no room for the government to bend the law while obtaining evidence. He argued that illegally obtained evidence cannot be used to incriminate a person.

The State had called 45 witnesses and was closing its case against the trio. However, Justice Diana Kadevza (then a magistrate) declined to use electronic evidence against them because of a lack of court orders.

Investigators drawn from the Anti-Terror Police Unit combed through Facebook, some 177 SIM cards collected from Muchatha, M-Pesa transactions, calls and texts to unravel the faces, movements and communications behind the attack.

From the data, they managed to link Dusit D2 attack planners and facilitators with a foiled attempt to bomb the Kenyatta International Convention Center (KICC) in 2018.

They also went to the extent of tracing where the attackers were born, their families, and what they did on the day before and during the attack.

Police Constable Titus Lang'at was the man who put the pieces and bits together, which led to the arrest of Abdullahi, Mohamed, and Ali.

In his testimony, Lang'at told Justice Mochache that 177 SIM cards were collected from Muchatha in Kiambu County, and a mobile phone from Ali Salim Gichunge aided investigators to trace the attack from Jilib, Somalia.

Jilib, the court heard, is the operations base for al-Shabab. "If we can stop this menace then we need to also look at facilitators and the financiers," said Lang'at.

The court heard that one of the mobile phone number used to wire the money was registered in the name of Ali's dead brother, Isaack Abdi.

Lang'at testified that Gichunge had used a doctor's lost identification card to register for MPesa. He also used the ID of Dr Eric Kinyanjui to register Kemunto's line.

Kemunto was last traced to Mandera and is believed to have crossed into Somalia after the attack.

The court heard that a Facebook account was created on January 14, 2019 and the purpose was to transmit live videos by the attackers.

Another account that had been created on April 4, 2018 was traced to one Adam Chege who was in Jilib. Chege was central in the attack.

It was alleged that the same Facebook account was used to communicate the KICC plot where Victor Odede was charged with attempting to blow up the building.

Hussein, the second accused, was said to have possessed pictures of fake student IDs that aided two terrorists to escape a refugee camp for Muchatha.

The court heard that Hussein communicated through Facebook with Chege but he did not mention anything about any intended terrorist attack.

Lang'at testified that the ID images were sent by Chege who had instructed Hussein on what to look for.

According to the officer, Chege also communicated through the same Facebook account with one Simple Wes who was to ferry a parcel from Mandera to Nairobi. The parcel was to be collected by one Abdulahi Ali.

According to the officer, the same mobile phone number that was printed on the parcel was the same one that was found with Mohammed.

"Was there communication between the three accused persons?" Chacha asked.

"No, your honour," Lang'at replied.