AFRICA NAZARENE
UNIVERSITY
SCHOOL OF LAW
COURSEWORK ASSIGNMENT
CENTRE:
UNIT TITLE:
UNIT CODE:
LECTURER:
TRIMESTER:
DATE:
CONCLUSION:
RONGAICAMPUS/DISTANCE LEARNING
CRIMINAL LAW II
LAW 202
DR. C. KHAMALA
1ST TRIMESTER 2021/2022
15TH OCTOBER, 2021
30TH NOVEMBER 2021
Instructions:
1. Answer ALL questions. They carry equal marks. Total 50.
2. Spend sufficient time reading all questions carefully, researching and planning your
answers. Ensure you submit the correct answer sheet before the expiry of 4 weeks. It
will be safer for you to submit three days before the expiry of the 4 weeks.
3. Cut-and-paste from the internet or copying word-for-word from textbooks shall lose
marks. Ideal answers should not exceed 15 pages (5,500 words), including footnotes.
4. Time allowed: six weeks. You can work offline and login when ready to submit.
5. Open book test. Refer to at least 6 different text books and cite 24 cases.
6. Marks will be awarded for well-reasoned, responsive, authoritative and coherent
answers; but lost for poor grammar, numerous typographical errors or plagiarism.
7. Use Times New Roman, font size 12, 1.5 line spacing. You should submit as an
MsWord document.
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Q. 1. At 8:30 a.m., in Nairobi, a school bus carrying 24 children between the ages of 9 and 11 was
hijacked by a group of men wearing black balaclavas (ski masks) and carrying automatic weapons.
The bus driver was shot in the head and left in the bus, while the children were taken away in
other vehicles. At 8:50 a.m., someone called the police to report that a yellow bus was blocking a
street. When the police responded, they found the school bus driver who had died from his wound.
They also found a cardboard placard with words written in indelible marker: “Release Abdul
Abdullah or All Will Die – Instructions Will Follow.” The police quickly ascertained that the bus
had been bound for a private primary school where a substantial number of children of foreign
diplomats were enrolled. Dozens of Directorate of Criminal Intelligence (DCI), National Security,
and Department of Justice officials responded to the incident, and a joint headquarters was
established by the Kenya Police Service (KPS) with 10 detectives assembled to work on the case.
At 10:00 a.m., the body of a young girl, whose throat had been cut, was thrown from a car in front
of the Israeli embassy. A note was pinned to the girl’s school uniform. It demanded the release of
Abdul Abdullah from an Israeli prison and his safe passage into the Palestinian-controlled Gaza
Strip. The note stated that if he were not released by noon, more children would be killed. By
10:15 a.m., the demands in the note were relayed to the joint headquarters, and the KPS Chief of
Detectives immediately ordered that teams of detectives be stationed outside each foreign
embassy in the city. Noon passed without the release of Abdullah, and at 1:00 p.m., a team of
detectives in a squad car parked down the block from the British High Commission observed a
sports utility vehicle (SUV), occupied by three men wearing balaclavas, speeding toward the
embassy. When the SUV stopped in front of the embassy and a body was thrown to the sidewalk,
the detectives drove around the front of the SUV, cutting it off before it could drive away. Two
men leaned from the SUV windows and began firing automatic weapons at the squad car. The
detectives drove to the end of the block to get away from the firing, and they left their vehicle
blocking the intersection as other police units began to arrive. The men in the SUV tried to back
out of the block, but they were hemmed in by traffic. A shootout followed. One police officer was
killed. One of the masked suspects was killed, another wounded, and a third captured when his
weapon ran out of ammunition. The captured suspect was immediately taken to the DCI Kiambu
Road headquarters for interrogation. He said he would not talk without a lawyer, and the DCI
agents conferred about whether they should keep interrogating him without a lawyer present
because of the imminent danger to the other children. Eventually, they decided to continue
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interrogating him, but the suspect refused to respond to their questions. At 4:00 p.m., the body of
a 10-year-old boy was thrown from the roof of a 5-story residential building in Valley Road,
Nairobi. The body landed a short distance away from the Israeli Embassy. A cardboard placard
was tied to the body. It read, “Free Abdullah.” More detectives and DCI agents were assigned to
the case, and every piece of evidence was investigated. The SUV had apparently been hired by
someone using a fraudulent name and fake identity card, but no immediate leads were developed
to identify the terrorists or locate the children. The Police Service conferred with the government
of Israel. Although Israel stated that they would release Abdullah if the Kenya government
requested them to do so, they recommended against it. To give in to the kidnappers would lead to
more terrorism. At the Department of Justice in Nairobi, high-level discussions took place at
which the Attorney General advised that this was an international terrorist incident being
perpetrated by “a group engaged in international terrorism.” He suggested that legally, the AntiTerrorism Unit could be employed to utilize harsh or enhanced methods of interrogation on the
captured suspect to obtain information about the children. However, a decision was made not to
employ such methods. Meanwhile, the wounded suspect had been taken to a hospital where a
bullet was surgically removed from his leg, but another bullet that had lodged close to his spine
was not removed. The suspect was taken to a secure room in the Intensive Care Unit, and eight
KPS detectives were assigned to guard him – four to stay with the suspect, and four to guard
against a potential attack on the hospital by other terrorists to either rescue or kill the suspect. At
9:00 p.m., a package was delivered to the Nairobi Times Towers building. The ear of a child was
found in it, along with a note, which read: “At 9:00 a.m., tomorrow – unless Abdullah is released,
the beheading of the children will begin – one each hour. Your government will receive their
heads.” The message delivered to The Daily Baraza newspaper was a temporary relief for most
of the detectives working on the case as it gave them some time and breathing room, and the
information was eagerly passed around. At the hospital, sometime after midnight, Detectives
Ujuzi and Nguvu were taking their four-hour turn guarding the wounded suspect in his room when
they heard about the new message. Ujuzi was not relieved. He suddenly went to the suspect’s bed
and began choking him. The suspect stared in disbelief. “Where are the kids, you bloody idiot?”
Ujuzi demanded. The suspect could not talk while being choked. Detective Nguvu grabbed Ujuzi.
“Are you crazy? Stop doing that.” “I’ll stop doing it when he tells me where the children are.”
Ujuzi said, squeezing tighter. “Are you going to tell me where they are?” The suspect tried to
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catch his breath. He pointed to his chest, indicating pain. “You want me to help you? You want
me to call the doctor?” The suspect nodded his head, and Ujuzi loosened his grip. “Where are the
kids?” The suspect was able to whisper breathlessly, “I don’t know.” Ujuzi began choking him
again. “Stop it. You’re going to kill him,” Nguvu said. “So what? They’ll think he died from the
bullet wound.” Ujuzi retorted. “But they’ll find your finger marks around his throat” Nguvu
warned. “You’re right.” Ujuzi let go of the suspect’s throat. He propped a chair against the door
so no one could come into the room, then he wheeled the bed over to the basin sink. “Grab his
legs,” he told Nguvu, and the two detectives lifted the suspect over the sink and placed his head
under the tap. Ujuzi turned the tap on, running water onto the suspect’s face and into his mouth.
The water began to fill the sink. The suspect tried to shout, but could not. Nguvu said that he
thought that Americans used a towel when waterboarding someone (drowning by ducking
someone’s head into water). So he took a pillow case from the bed, tied it around the suspect’s
head, and ran more water on the suspect. The detectives repeated this several times and each time
asked the suspect to tell them where the children were. With each repetition, the suspect panicked
more. He was able to scream once, but no one came to his aid. “Don’t bother screaming. There’s
nobody here but us,” Ujuzi said. “Now where are the children, or we’re going to drown you.”
“Okay. Okay.” The suspect tried to catch his breath. “But you can’t tell anyone I told.” “Fine,”
Ujuzi said. “Where are they?” “An apartment building, Valley Arcade, two blocks from the Israeli
Embassy.” “What’s the address?” “I don’t know.” “Tell me the address or I’m going to give you
more water.” “I don’t know. It’s on the corner.” “What apartment?” “Please. Don’t tell that I told.”
“I won’t tell a soul.” “They’re in a storage room, next to the Scraper’s apartment.” Ujuzi and
Nguvu threw the suspect back on the bed just as a nurse tried to open the door. She pushed the
door open. “What’s going on?” “He had to vomit. So we moved him closer to the sink” Ujuzi
replied. The nurse looked skeptical but said nothing else. Ujuzi and Nguvu had the other detectives
guard the suspect while they called the Chief of Detectives at headquarters with the information.
Before dawn, the storage room was located and raided. Two terrorists were killed, two captured,
and nine children were rescued. One had lost his ears, but the others were not physically injured.
(a) Advise the Director of Public Prosecutions on whether any objections can be made
concerning violations of rights by any officials. If so, then which ones, and why? If not,
then why not. Explain. (6 ½ marks)
(b) Advise the Director of Public Prosecutions on whether to prosecute and if so, then who,
why and for what. (6 marks)
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Q. 2. National drug enforcement agents, without a warrant, break into a house and seize five kilos
of unlawful cocaine. They arrest “Paka Nono” Malipo, the owner of the house, and Johnnie “Reki”
Ruckas, a visitor. The agents question Malipo without telling him any constitutional warnings,
and he tells them Ruckas’ car is outside. The agents search Ruckas’ Toyota Lexus KUN 937C and
find ten more kilos of cocaine in the boot. Ruckas, watching this, blurts out to Paka Nono, “You
rat, I’m gonna kill you when I get out.” While this is going on, Havi Harakisha knocks on the
front door and the agents take him into custody. Havi starts to cry, and in response to questioning
without any warnings about his identity, blurts out that he was only there to buy a small amount
of marijuana. Five minutes later, Daneili Duniani approaches the house, sees the agents, turns
quickly, and walks away. Because he looks suspicious, the agents take him into custody and try
to question him, but he refuses to answer questions and remains silent. Then the agents take all
four suspects to a detention facility and read them all their rights to remain silent before
questioning them. Malipo gives a statement that Ruckas was the drug dealer, not him. Ruckas
gives a statement that Malipo is the drug dealer, not him, and that Malipo had borrowed his car
and must have put the ten kilos into his car. Harakisha says he knew Malipo, Ruckas, and Duniani
sold cocaine, but again says that he was there only to buy marijuana. Duniani confesses that he
was the supplier of the cocaine, and based on his confession the agents recover records of cocaine
transactions indicating that he was making about Kshs 100 million per year. All the suspects are
arrested and charged with possession of unlawful cocaine.
(a) Draft the charge sheet. (DO NOT USE A TEMPLATE) (6 ½ marks)
(b) Draft the judgment. (6 marks)
Q. 3. Detective Thomas Tafuta was investigating illegal trafficking in light weapons in and around
a public housing development. He had a confidential informant who told him that at 9:00 p.m. a
small cachet of lightweight guns was going to be delivered to a youth nicknamed “Situnya.” The
informant said that the sophisticated guns would be delivered by a man he knew only as Bomoa,
who was a gun supplier in the area. Bomoa usually dressed in a suit, and the guns would be in a
blue suitcase. Situnya would be dressed in a track suit and rubber shoes. Detective Tafuta and
other officers set up surveillance in and around the project buildings with the intention of arresting
Bomoa and Situnya when the guns were delivered. At 9:00 p.m., Bomoa arrived and sat on a
bench in the common area. A minute later, Situnya exited a building, sat next to him, took the
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sports bag, and immediately began walking back toward the building entrance pulling it along
with him. The police who had been hiding nearby rushed toward both men. Bomoa surrendered,
but Situnya ran. He raced into a nearby building and eluded the police by hiding in a first-floor
flat and then escaping through a window while the police were looking for him elsewhere. Situnya
almost got away unseen, but Detective Tafuta had not followed the other officers, and he saw
Situnya turning the corner of a building. Tafuta ran after him, and a chase ensued during which
Tafuta dropped his walkie-talkie and was unable to radio for assistance. After about five hundred
meters of running, Tafuta became exhausted, and Situnya began to get farther away. Situnya came
to a fence next to the railway station and began climbing it. Tafuta remembered how his daughter
nearly died in a terrorist attack! He recalled how his daughter’s colleagues were gunned down at
Dusit2 in 2019. He had flashbacks of how Dusit2 had to close its business due to that attack and
how his daughter and her colleagues lost their jobs. His mind raced back to watching his daughter
grieve for her dead colleagues, especially her direct boss, a young woman gunned down in the
prime of her life. In this moment he had no sympathy for any arms traffickers. Tafuta knew that
if Situnya got over the fence, he would get away. Tafuta shouted, “how can you continue
terrorizing Kenyans? Do you know how painful it is to watch your child deal with terrors you
can’t help with?” But Situnya continued to climb, and Tafuta went mad, firing four bullets at him,
one striking him in the back of the head and killing him. It turned out that the sports bag contained
nothing but cotton wool.
Advise Tafuta on criminal plea, trial procedure and liability. (12 ½ marks)
Q. 4. The owner of a jewelry shop, Oscar Ikolomani, and his assistant manager, Joyce Jebenei,
were getting ready to close the shop when two men wearing motorcycle helmets, dark sunglasses
and Covid masks entered the shop. One of the men was about 6 feet, 2 inches tall. He put a gun
to Ikolomani’s forehead and ordered him to open the safe. The other man, who was of average
height and had a mustache, grabbed Jebenei from behind, placed a knife to her throat, and told her
not to move or say anything. Ikolomani opened the safe. Then, as the taller robber reached inside,
Ikolomani produced a gun that had been hidden under the safe and began firing. The robber fired
back and a bullet hit Ikolomani in the head, killing him. Jebenei bit the other robber’s hand, and
she managed to get away and run into the backroom as the robbers fled from the shop. She
immediately called 999. Detective Uwezo and other police officers responded to call, came to the
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shop and obtained a description of the robbers from Jebenei. Then, while investigating the crime
scene, they received a call that a man with bullet wounds was in the Intensive Care Unit of a
nearby hospital. Detective Uwezo went to the hospital where he was informed that the wounded
patient, Lawton Mutinda, was in critical condition, with one bullet lodged near his spine and
another bullet lodged near his elbow. A nurse pointed to a man in the waiting room and told
Detective Uwezo that the man had brought the wounded man into the ICU. The man in the waiting
room was about 5 feet, 9 inches in height and had a mustache. When he began to leave, Detective
Uwezo stopped, questioned, and searched him. He did not discover any weapons. The man
identified himself as John Mutaro. He denied knowing or bringing the wounded man into the ICU
but could not give an explanation for his own presence. Within 30 minutes of Detective Uwezo’s
arrival, other detectives brought Jebenei to the hospital for an identification. She said that Mutaro
fit the description of the man who had grabbed her, but she had not gotten a good look at his face
and could not positively identify him. Jebenei was then brought to the bedside of Mr. Mutinda.
After she was told that he had been shot, she positively identified him as the robber with the gun
who had shot the storeowner. Mutinda was arrested and a police officer was assigned to guard
him while he was in the hospital. Mutinda refused to consent to an operation to remove the bullets.
As Detective Uwezo continued to question Mutaro, he noticed a bite mark on his wrist. Uwezo
asked Mutaro to accompany him to the police station so he could take a photograph of the bite
mark, but he refused. Uwezo then arrested Mutaro and took him to the police station, where three
detectives had to hold Mutaro down while photographs were taken of the bite mark. Uwezo
conferred with State Counsel Wakili, who had been assigned to the case. Wakili was concerned
about the legality of the arrest and the forcible taking of photographs. He obtained a court order
directing Mutaro to submit to additional photographs. These were taken the following day when
the bite marks had darkened and were more visible.
Wakili was also concerned about the legality of the hospital bedside identification of
Mutinda. To improve the case, he applied for a court order mandating that Mutinda submit to
surgery to remove the bullets so they could be matched to Ikolomani’s gun and used to identify
Mutinda as the robber. Mutinda’s doctor opined that such a procedure posed a risk of paralyzing
him for life. During pretrial hearings, a forensics expert testified that he had examined the
photographs of the bite mark on Mutaro’s wrist and matched them against dental formula of
Jebenei. He concluded that the bite mark was made by Jebenei’s teeth.
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Advise Mutinda and Mutaro on criminal liability and procedure. (12 ½ marks)
Q. 5. On day in 2015, a six-year-old-girl came home from school with red blood stains on her
dress. When the boy’s mother inquired about the blood stains the boy said that her teacher had
engaged in bad manners. The mother then contacted the police, who subsequently conducted an
investigation and arrested Onyo Kasuku, for molesting a six-year-old child and attempting to
molest a ten-year-old child. Detectives from the Sex and Gender Based Violence Unit attempted
to interrogate Kasuku. They read him his rights to remain silent and accompanying warnings, but
he said he did not want to talk to them and the detectives ended the interview. Because the sixyear-old child had difficulty communicating exactly what had happened and the police did not
find corroborating evidence, those charges were dropped. In the other case, however, Kasuku was
convicted for molesting the ten-year-old, and Kasuku was sentenced to prison. He was housed
with the general prison population. For several years, the six-year-old underwent psychological
therapy, and in 2020 the child was able to remember and explain what had occurred in 2015. The
detectives were notified, and they reopened the case. As part of their investigation, they
interviewed Kasuku in the prison visiting room. After they read his right to remain silent and
relevant cautions, he agreed to talk with the detectives without an advocate present, and he made
an incriminating statement to the effect that he did not force the six-year-old child and the child
consented to the physical contact. He even participated in wiping the blood using Kasuku’s
handkerchief. On the basis of his incriminating statement that corroborated the child’s account,
Kasuku was charged. However a doctor strongly advises against permitting Kasuku and the child
to occupy the same room as reviving such memories are likely to precipitate Post-Traumatic Stress
Disorder.
(a) Draft submissions supporting Kasuku’s application for release on bail pending trial; (6 ½
marks) and
(b) You are a newly employed judiciary researcher and tasked with writing a legal opinion
advising the magistrate on the procedure by which to conduct the trial and why. (6 marks)
Q. 6. On 3rd January, 2018, Roimen was observed at Malindi Airport by two plainclothes
detectives of the Dada County, Public Safety Department assigned to the County’s Organized
Crime Unit, Narcotics Investigation Section. Detectives Fundisha and Fatuma believed that
Roimen’s appearance, mannerisms, luggage, and actions fit the so-called “drug courier profile.”
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Roimen, apparently unaware of the attention he had attracted, purchased a one-way ticket to Juba
and checked-in his two suitcases, placing on each suitcase an identification tag bearing the name
“Mistuni” and the destination “Mlinzi.” As Roimen made his way to the concourse which led to
the airline boarding area, the two detectives approached him, identified themselves as policemen
working in the Officer in Charge of the Police Station’s office, and asked if Roimen had a
“moment” to speak with them; Roimen said “Yes.”
Upon request, but without oral consent, Roimen produced for the detectives his airline
ticket and his driver’s licence. The airline ticket, like the baggage identification tags, bore the
name “Mistuni,” while the driver’s license carried his correct name, “Roimen.” When the
detectives asked about the discrepancy, Roimen explained that a friend had made the reservation
in the name of “Mistuni.” Roimen became noticeably more nervous during this conversation,
whereupon the detectives informed Roimen that they were in fact narcotics investigators and that
they had reason to suspect him of transporting narcotics. The detectives did not return his airline
ticket and passport but asked Roimen to accompany them to a room, approximately 30 meters
away, adjacent to the station concourse. Roimen said nothing in response but went with the
officers as he had been asked to do. The room was later described by Detective Fundisha as a
“large storage closet,” located in the stewardesses’ lounge and containing a small desk and two
chairs. Approximately 15 hours elapsed from the time the detectives initially approached the
Roimen until his interrogation, his plane having long departed. During that interval, he didn’t
know where his luggage was. Without Roimen’s consent or agreement, Detective Fundisha, using
Roimen’s baggage check-in boarding pass, had retrieved the “Mistuni” luggage from the airline
and brought it to the room where Roimen and Detective Fatuma were waiting. Roimen was asked
if he would consent to a search of the suitcases. In responding to this request, Roimen replied that
he had no key and to the suitcases, which one detective then broke open without seeking further
assent from Roimen. Marihuana was found in that suitcase. According to Detective Fundisha,
Roimen stated that he did not know the combination to the lock on the second suitcase. When
asked if he objected to the detective opening the second suitcase, Roimen said “ask Mistuni, it’s
not mine” and did not object when the detective explained that the suitcase might have to be
broken open. The suitcase was pried open by the officers and more marihuana was found. Roimen
was then told that he was under arrest.
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Being an indigent person, Roimen was represented by counsel under the Legal Aid Act, 2016.
Roimen was convicted. During the sentencing phase, his advocate failed to present relevant
evidence of his tragic upbringing that would constitute mitigating circumstances. The National
Legal Aid Service provides and pays for social history reports for accused persons compiling
circumstances of the accused’s childhood. The report was available to Roimen, but his advocate
failed to request it. The State Counsel brought fourth four aggravating circumstances. The only
evidence presented by Roimen’s advocate was the testimony by his sister, Thetu, and his best
friend Ole Seyina that he was a decent man. The prosecution recommended the most stringent
sentence under the Narcotics and Psychotropic Substances Act, 1994, of life imprisonment which
the magistrate imposed.
(a) Advise Roimen on criminal appeal; (6 ½ marks) and
(b) Draft his petition of appeal. (6 marks)
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