G34/3318/2022
QUESTION 1
a) Legal opinion on the possible offences
Murder against Section 203 and 204 of the Penal Code (Cap21)
The suspects are implicated in the murder of the school bus driver and the brutal killings of
children, including the decapitation of a 10-year-old girl. The crime meets the legal
requirements for murder under Section 203 of the Penal Code, which defines murder as the
unlawful killing of a person with malice aforethought.
Elements of Murder
Unlawful killing-The bus driver was killed by gunfire, and the children were killed with
extreme brutality (e.g., throat cutting, beheadings).
Malice Aforethought-The manner of the killings, especially the use of automatic weapons and
the subsequent threats and intimidation, suggest premeditation and malice aforethought. The
terroristic threats further indicate that the killings were intended to achieve a political goal,
elevating their gravity.
The case of Republic v. Selina Nyambura & 3 Others [2015] eKLR supports that where
killings are committed with malice aforethought, the perpetrators can be charged with murder
under Section 203 of the Penal Code.
2. Kidnapping with intent to murder against Section 258 of the Penal Code( Cap21)
The hijacking of the bus and the abduction of 15 children by armed individuals constitutes
the offense of kidnapping. Under Section 258 of the Penal Code, kidnapping is defined as
unlawfully taking a person with intent to demand any benefit or to subject the person to force
or threats.
Elements of Kidnapping
Unlawful taking of a person- The children were taken away against their will by force or
threat of violence.
Intent- The demand for the release of Abubakar Allawi indicates that the kidnapping was
carried out with the intent to leverage the children as hostages in furtherance of a political or
criminal agenda. The case of Republic v. Julius Kibet & Another [2016] eKLR upholds that
kidnapping for ransom or coercive demands, as was the case here, constitutes a criminal
offense punishable under Section 258 of the Penal Code.
3. Terrorism against Section 3 of the Prevention of Terrorism Act, 2012
The circumstances of the case indicate the commission of acts of terrorism, particularly the
politically-motivated killings, kidnappings, and threats to kill more children unless certain
demands are met. The Prevention of Terrorism Act, 2012 specifically addresses the acts of
terrorism, including threats to cause serious harm or death to individuals to intimidate the
public or government.
Elements of Terrorism
Use of violence or threats- The perpetrators used gunfire, decapitation, and threats of further
violence to achieve political objectives.
Intention to influence government policy- The terrorists’ demands to release Abubakar Allawi
and disavow support for Israel suggest that the criminal acts were carried out to influence
government action.
4. Conspiracy to Commit Offenses against Section 393 of the Penal Code
Given the coordination of the hijacking, killings, and abductions, the suspects could also face
charges of conspiracy under Section 393 of the Penal Code. This section criminalizes any
agreement between two or more persons to commit an offense.
Elements of Conspiracy
Agreement- The joint operation, including planning and executing the hijacking and murders,
suggests a coordinated effort to further the terrorists' agenda.
Intention to commit an unlawful act- The intention to commit murder, kidnapping, and acts of
terrorism aligns with the elements of conspiracy. The case of Republic v. John Kimani &
Another [2017] eKLR highlights that conspiracy to commit a serious offense like murder or
terrorism is punishable under Section 393 of the Penal Code.
5. Attempted Murder against Section 220 of the Penal Code
The attack on the police officer and the grenade incident at Premier Hospital demonstrate an
intent to kill or cause grievous harm. While the grenade did not fully detonate, the intent to
kill remains evident, and the offense of attempted murder may be charged.
Elements of Attempted Murder
Intent to kill or cause grievous harm- The act of throwing a grenade with the intent to kill the
police officer and the suspect meets the definition of attempted murder.
Act of taking steps toward murder- The act of throwing the grenade is a clear step toward the
commission of murder, despite the grenade failing to detonate. Republic v. James Mwangi
[2014] eKLR, the court convicted the accused for attempted murder, emphasizing that any act
committed with the intent to kill or cause serious harm constitutes an attempt.
6. Possession of Firearms and Ammunition against Section 4(1) of the Firearms Act, Cap
114)
The suspects were armed with automatic weapons during the hijacking and shootout with the
police, which constitutes illegal possession of firearms and ammunition. Under the Firearms
Act, any person found in possession of a firearm without the requisite license is liable for
prosecution.
Elements of Illegal Possession
Possession of a firearm- The suspects were armed with automatic weapons during the
hijacking and subsequent shootout with law enforcement.
b) Charge sheet
REPUBLIC OF KENYA IN THE HIGH COURT
AT MOMBASA LAW COURTS
REPUBLIC
VERSUS
KAMAU AND ANOTHER
CHARGE SHEET
COUNT I
STATEMENT OF OFFENCE
Murder contrary to Section 203 as read with Section 204 of the Penal Code.
PARTICULARS OF OFFENCE
On 21st January 2025, at Mombasa, the accused, jointly with others not before the court,
unlawfully caused the death of a school bus driver by use of a firearm.
On 21st January 2025, in Mombasa, the accused, jointly with others not before the court,
unlawfully caused the death of a young girl by slitting her throat.
On 21st January 2025, in Mombasa, the accused, jointly with others not before the court,
unlawfully caused the death of a 10year old boy.
COUNT III
STATEMENT OF OFFENCE
Kidnapping or abduction with intent to murder contrary to Section 258 of the Penal Code.
PARTICULARS OF OFFENCE
On 21st January 2025, at Mombasa, the accused, jointly with others, unlawfully confined 15
children with intent to murder them in the event that Abubakar Allawi is not released
immediately from prison.
COUNT IV
STATEMENT OF OFFENSE
Terrorism. Engaging in an act of terrorism contrary to Section 4(1) of the Prevention of
Terrorism Act, 2012.
PARTICULARS OF OFFENSE
On 21st January 2025, at Mombasa, the accused, jointly with others, committed acts of
violence to influence government action.
COUNT V
STATEMENT OF OFFENSE
Possession of unauthorized firearms. Possession of firearms without a license contrary to
Section 4 of the Firearms Act.
PARTICULARS OF OFFENSE
On 21st January 2025, at Mombasa, the accused, jointly with others, possessed automatic
weapons without lawful authority which were used to murder the school bus driver and bomb
the hospital.
COUNT VII
STATEMENT OF OFFENSE
Assault on police officers. Assaulting police officers contrary to Section 103 of the Penal
Code.
PARTICULARS OF OFFENSE
On 21st January 2025, at Mombasa, the accused assaulted officers with firearms in the course
of their duties.
Dated at Nairobi this 22nd day of January 2025
…………
DPP
C) Brief history and rationale of Criminal Procedure
The transition from private prosecution to state-driven prosecution emerged from the need to
ensure fairness and reduce bias in the legal system. In earlier times, aggrieved individuals or
local communities acted as prosecutors, which often led to trials influenced by personal
interests, potentially compromising justice. The shift to public prosecution, managed by
impartial, qualified officials, aimed to provide a more neutral and equitable process. This
change helped eliminate the risks of corruption and favouritism, ensuring that justice was
administered fairly and without external influences. Private prosecutions also lacked the legal
knowledge and resources needed to handle complex cases, leading to inefficiency and
inconsistent outcomes. The introduction of trained public prosecutors enabled greater
expertise and professionalism in investigating and prosecuting crimes. The state’s role also
emphasized that crimes were offenses against society as a whole, not just individual victims.
Public prosecutors became responsible for representing the interests of the state, ensuring that
criminal actions were punished for the greater good of public safety and order. As legal
systems evolved, it became clear that the rights of the accused must also be protected,
requiring public prosecutors to balance the interests of justice with due process. The rise of
law enforcement agencies further enhanced the efficiency of criminal investigations and
prosecutions, creating a more systematic approach to justice. This dual responsibility of
ensuring justice for society and protecting the rights of individuals helped create a more
equitable system. Additionally, the rise of police forces and law enforcement bodies meant
that criminal investigations could be conducted more thoroughly and systematically. Law
enforcement agencies, often in collaboration with public prosecutors, ensured that
investigations were professional and consistent. The evolution toward state-driven
prosecution highlighted the understanding that criminal justice should be impartial and based
on the rule of law, rather than influenced by personal or local interests. It also demonstrated
the necessity for the state to take responsibility for prosecuting crimes, ensuring a fair and
efficient process for all parties involved. Ultimately, this shift established a legal framework
that promotes fairness, accountability, and the protection of individual rights in the pursuit of
justice.