A man and his son walked to freedom on Tuesday after the prosecution’s bid to have them remain in jail over the 1998 US embassy bombing failed.
They stayed in prison for 11 years as their case was being heard. They were convicted in 2019. They lodged an appeal that led to their acquittal.
The Director of Public Prosecutions wanted them to remain in prison pending the determination of an appeal he had filed against the acquittal of the two.
The duo was accused of harbouring and aiding Fazul Abdullah, the terrorist responsible for the 1998 US embassy bombing in Nairobi, to escape.
Interestingly, there was no family member to receive them when they walked out of prison at 7pm.
On Wednesday, Senior Counsel David Fedha, acting for the DPP, said he filed a notice of appeal on July 2 in which he explained his dissatisfaction with Justice Adwera Ong’injo’s judgement that acquitted Hemed and his son Ashur.
“Take notice that the DPP, respondent herein, being dissatisfied with the decision and orders of Hon Justice A. Ong’injo on July 1 2021, intends to appeal against the whole judgement,” said Fedha’s appeal.
Justice Ong’injo declined to suspend her orders releasing the two from prison as sought by the DPP.
The judge said, in her judgement delivered virtually, that the DNA evidence used to convict the two was insufficient.
She also questioned how detectives managed to collect the DNA swabs from Fazul’s wife, son and daughter to match that found in his shaver at the house of Hemed and Ashur.
“Claims that Fazul was in the house of the appellants by virtue of the alleged DNA test in the absence of him (Fazul) having been found falls short of the threshold of beyond reasonable doubt. Therefore, the guilt or otherwise of the said Fazul Abdulla is immaterial,” said Justice Ong’injo.
Hemed and Ashur were found guilty in 2019 of being accessories to the murder of 219 people in the attack on the embassy. Fazul was also linked to the bombing of a hotel in Kikambala, Kilifi County, in 2002.
Fazul escaped the police dragnet in 2007. He was later killed in a gunfight at a roadblock in the Somali capital Mogadishu in 2011, according to the reports by the US government.
Hemed and Ashur had been convicted by then Chief Magistrate Maxwell Gicheru for harbouring Fazul in their house in Silversand Estate, Malindi in Kilifi County.
Police had said they recovered a shaver and a passport photo of Fazul in the home of Hemed and Ashur.
The prosecution said a DNA test from deposits extracted from the shaver and toothbrush marched the DNA samples and fingerprints taken from Fazul’s body after he was killed.
Gicheru, in his ruling, said the two were guilty of being accessories in the 2002 bombing of Paradise Hotel in Kikambala where 15 people were killed. The hotel was owned by Israeli nationals.
“The accused harboured one of the most wanted terror suspects, Fazul Abdullah. I, therefore, pass life imprisonment judgement on them,” read Gicheru’s judgement.
Hemed’s wife, Lutfiya Abubakar Bashir, who died on April 10, 2011, was also to be charged.
The man and his son were arrested in 2008 in Malindi.
But in her judgment, Justice Ong’injo poked holes in the lower court’s decision saying the evidence provided by the prosecution left many loose ends that cannot sustain a conviction.
“The appellant’s appeal is therefore successful. The conviction is quashed and the sentence set aside. The appellants are set at liberty unless otherwise lawfully detained,” said Justice Ong’injo.