NAIROBI, September 16 – A man who had been sentenced to eight years in jail in 2006 for the illegal possession of five anti-tank weapons and a hand grenade has now been set free by the High Court.
Justice Jackton Ojwang’ ruled that the police failed to connect Omar Said Omar to the cache of firearms, and observed that when the weapons were recovered, Omar was in fact already in custody over the 2002 Kikambala hotel bombing.
"Clearly, no witness has squarely linked the appellant to the special ownership (of tenancy) of the flat that was the locus in quo (where weapons were recovered) and it follows that it would have been wrong, as a matter of fact, to apply the doctrine of constructive possession, to link the appellant to the firearms and explosives which were said to have been recovered," Justice Ojwang said in his judgment.
The judge said that on August 1 2003 – when police claimed to have recovered the weapons – Omar had been arrested and carted off to Nairobi, whereas the flat where the weapons were recovered was in Mombasa and was raided by the police about eight days later.
"If the identity of the true tenant of the said flat had not been established by evidence, the uncertainty is deepened by the failure to account for the goings-on at the said flat during the eight days since the appellant had been taken away from Mombasa," the judge said.
"The appeal is allowed, the conviction on all three counts is set aside, and sentence is quashed. The appellant shall be set at liberty forthwith, unless he is otherwise lawfully held."
Omar was jailed by a Nairobi Magistrate’s court on April 4 2006, just 10 months after he and four others were acquitted over the 2002 bombing of an Israeli-owned Kikambala hotel in which 15 people were killed.
Omar challenged the sentence by Senior Principal Magistrate Rosemelle Mutoka arguing that it was too punitive.
The police on their part had claimed that the weapons were to be used to blow up an airline.
"The picture emerging from the quality of prosecution evidence, and from the restless motions of police officers in their preoccupation with the appellant, is that of over-zealousness, which was not attended with professional- investigation methods. The burden of all this heavily fell on the appellant, who, consequently, did suffer prejudice," the judge added.
The bombing of the Paradise Hotel in Kikambala occurred simultaneously with an attempt to blow up an Israeli airliner that had left the Moi International Airport in Mombasa.
To date, no one has been convicted in either of the cases.
The attacks have been described as the most high-profile terror incidents in Kenya since the 1998 bombing of the US embassy in Nairobi.
Osama bin Laden’s al Qaeda network claimed responsibility for the missile attack and bombing at the hotel, a popular destination for Israeli-package tourists in Mombasa.
Also from the courts a Nairobi businessman was charged on Tuesday with falsely informing the police that one of the most wanted terror suspects Fazul Abdullah Mohammed was hiding in a house in Nairobi’s Loresho Estate.
Sharif Mohammed Abdulkadir was accused of giving the information to Nairobi deputy police chief Julius Ndegwa on August 18 this year. He allegedly told Ndegwa that Fazul was residing in a house belonging to Sharif Awo Mohammed, which turned out to be false.
He denied the charges before Nairobi Chief Magistrate Gilbert Mutembei who released him on a cash bail of Sh50,000. His trial will begin on October 6.
Fazul escaped police a police ambush in early August, just days before the commemoration of the 10th anniversary of the twin bombings of US Embassies in Nairobi and Dar es Salam.