BY SAM ALFAN .
Director of Public Prosecutions Renson Ingonga has received a huge boost in the prosecution of two terror suspects implicated in the Dusit D2 complex attack five years ago.
In a landmark ruling, Kiambu High Court Judge Dorah Chepkwony allowed DPP to use evidence obtained from the mobile phones of two accused persons in the prosecution of the case.
The judge overturned the decision of Kahawa Magistrate court that upheld objection by Hussein Mohamed Abdille Ali and Mohamed Abdi Ali.
“I direct that the electronic evidence obtained from the forensic examination of accused persons’ mobile phones shall be admissible in the ongoing trial court in Kahawa Law Courts,” directed judge Chepkwony.
The judge further ruled that prosecution were at liberty to recall a forensic expert who had already testified, to present the electronic evidence.
“This court finds that the admission of the electronic evidence obtained without warrant is justified under the circumstances. The threat to national security and public safely necessitated urgent action, and the evidence obtained was crucial for the Prosecution of serious offences faced by the accused persons,” ruled judge Chepkwony.
The judge ruled the right of privacy to privacy, while fundamental, are not obsolete and can be limited.
The DPP through senior principal prosecutor Duncan Ondimu, argued that Chief Inspector Joseph Kolum sought to introduce several pieces of electronic evidence which had been obtained from the forensic examination of mobile phones.
The mobile phones had been seized from the three accused persons.
The accused persons through their lawyer Chacha Mwita objected to the used of the evidence arguing the search and evidence was done and obtained without search warrant.
The prosecution was dissatisfied with the court and approached the High court arguing that the accused persons were facing serious charges that attract stiff sentences hence the need to ensure attendance is on record for justice to be seen as done, this being a matter of great public interest that touches on National Security.
The DPP sought the Court to exercise its unlimited original and supervisory jurisdiction alongside its discretionary power as provided for under Section 362 of the Criminal Procedure Code and call for the lower court record for examination of the impugned order on its correctness, legality and propriety.
Prosecution prayed that the said electronic evidence be admitted for consideration by the trial court notwithstanding the procedural technicalities in the manner in which it was obtained by taking into account the authenticity and accuracy thereof as presented before it.
“It is the Prosecutions’ argument that the special circumstances of the instant case, and more particularly the risk posed to the National Security interests of the Republic of Kenya are sufficient enough to warrant an exception to the exclusionary rule on such evidence obtained without a warrant,” submitted Ondimu.
