https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/122

Republic v Abdi & 2 others (Criminal Case E018 of 2026) [2026] KEMC 122 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEMC 122 (KLR) Republic of Kenya In the Lamu Law Courts Criminal Case E018 of 2026 FM Mulama, RM May 21, 2026 Between Republic Prosecutor and Shadia Ali Abdi 1st Accused Fatma Twahir Abdi 2nd Accused Abdulkarim Omar Abdalla 3rd Accused Judgment A. Brief Facts. 1.At the center of this case is one Mr. Walid. It is him who caused to be convened a meeting that according to prosecution witnesses it was meant to bring the complainant’s and the subject’s families together. He did this well aware it was wrong as you shall hear from one of the witnesses and that not only was it wrong but he has publicly spoken and condemned what he was attempting to do in the cover of darkness. 2.Despite the said Mr. Walid being the convener of the said meeting and was present when the accused persons were arrested, the police never arrested him. No reason was advanced why he wasn’t arrested and despite being mentioned adversely, the prosecution also sought not to find out why he was not arrested. To the moment of judgment writing it is still not clear why he was not arrested or even questioned. 3.The three accused persons are jointly charged with the offence of conspiracy to defeat justice and interference with witnesses contrary to section 117(a) of the Penal Code. 4.It is said that the 3 accused persons on the 17/1/2026 at around 1930 hours with one another not before court at Mkunguni area of Langoni location in Lamu conspired with intent to assist in settling out a reported case of defilement concerning a minor JA in order to defeat the course of justice. 5.The accused persons denied the charges and 4 witnesses were called to testify by the state. At the close, the 3 accused persons were found to have a case to answer and were placed on their defence and never called any witness. 6.The accused have further filed submissions dated 6/5/2026 which I have considered along aside the respective testimonies of the prosecution and the defence. The Prosecution’s case. 7.It is the evidence of the prosecution through the 4 witnesses that on 17/1/2026 at 1732hours Pw 1 while heading home received a call from Mr. Walid and who informed him that he wanted to have a word with him concerning the minor JA who is his nephew. He then asked in what capacity Walid was calling him and Walid responded that as a leader and a parent. 8.Pw 1 then informed him that he’d get back after 30minutes. He then called Pw 2 who is his brother and father to JA and informed of what Walid had informed him and seems like he got PW 2’s node to proceed with the meeting and he called back Walid and informed him that he was on his way to his offices. In the meantime, he met with Pw 2 and they went to the said offices but PW 2 was left at Mkunguni square which is just near Walid’s office as they had agreed that he would text him in the event he finds the suspect who was on the run with Walid. At this time, Pw2 has also informed the police (Pw 3 and 4) and who are in support of the plan with a view of arresting the suspect whom they were looking for. 9.Pw 1 then entered Walid’s office and found him alone greeted him and sort to know the reason for the meeting and he disclosed that he knew mother of MA and he had informed her of what had transpired and she was saddened by that report and since she was away in Kiunga she was unable to travel immediately but she found means of transport and had arrived on 17/1/2026 and thus he was now sitting as a mediator to bring the 2 families together but while at it he does not want to be seen encouraging such settlements since he has previously and publicly spoken against such settlements. 10.Shortly thereafter the 3rd accused joined and according to him he introduced himself as the step father of the suspect and then Walid suggested that they leave his office to have the meeting at MA’s mother’s house because MA’s mother was tired because of the journey from Kiunga to Lamu (which I should add is quite a journey having been there once with all risks of land mines and the unforgiving ocean tides) but Pw 1 declined the invitation citing sensitivity of the matter. 11.They then agreed that MA’s mother (1st Accused) be called to the office instead. The 1st accused was called by Walid and shortly she came with the 2nd accused who described herself as the sister to the 1st accused. As Walid called 1st accused, Pw 1 excused himself to go and collect a parcel at Tawakal and on his way he informed Pw 2 who was with Pw 3 and 4 and updated them of what had transpired and what was about to transpire in a matter of minutes. 12.After collecting the parcel, he went back to Walid’s office and shortly thereafter the 1st and 2nd accused persons with the alleged perpetrator joined and were introduced to him by Walid. Walid then proposed to speak to the perpetrator before any discussions could go on. He did not even utter any word, PW 3 and 4 ambushed and arrested the minor and the 1st accused. The 2nd and 3rd accused persons followed them to the police station. Pw 1 concluded his testimony by stating that it later dawned to him that the 1st accused was actually not the mother of the suspect. 13.On being cross examined, he affirmed that none of the accused persons had approached him with a view of settling the matter without it being taken to the police and that by the time the police (Pw 3 and 4) came in intended discussions had not began. 14.Pw 2 Caleb Kelly Alomba the father of JA’s evidence was limited to what Pw 1 told him on call and after having a plot with Pw 1 he called the police and informed them of the intended meeting and remembers seeing 2 women in buibui entering Walid’s office. 15.Pw 3 and Pw 4 PC Samson Katana and CPL Winnie Nyevu respectively their evidence was limited to being on standby when informed of the intended meeting and pouncing on the accused persons and arresting them. Defence case. 16.The 1st accused in his defence denied the charges and stated that on the material date and time she was at Walid’s office at 7.30PM by the said Walid with MA. She called upon the 2nd accused to accompany her to the said office and as soon as they had settled in the company of Pw1, the 3rd accused and Walid, the police entered the office and arrested them. They had not even started the meeting and it was the first time she was meeting Pw1 and she had not spoken with Walid about anything. 17.Upon being cross examined, she stated that despite Walid calling him with the MA he did not tell him the purpose of the meeting. 18.The 2nd accused while corroborating the evidence of the 1st accused stated that her role in all these, was to escort the 1st accused to the meeting after her request and knew nothing about the intended meeting. 19.The 3rd accused on his part stated that he was called by Walid and he was under the impression he was going to be given his money for the milk he had previously supplied to Walid on credit and that while at the office he found Pw 1 and Walid and he heard when Walid called someone and shortly after it was the 1st and 2nd accused persons together with MA and as soon as they arrived, they were quickly followed by police officers who arrested them. He followed to see what was the issue and that is how he was also arrested B. Issue For Determination. 20.This court has identified the following issues for determination.a.Whether the charge as framed is duplex.b.Whether the accused persons jointly conspired to defeat justice and interfered with witnesses. C. Analysis And Determination. 21.Before I delve into the issues for determination as I have proposed above, a clear understanding of the section for which the accused have been charge is important and necessary in my view. 22.Section 117 of the Penal Code provides as follows;Any person who –a.conspires with any other person to accuse any person falsely of any crime or to do anything to obstruct, prevent, pervert or defeat the course of justice; orb.in order to obstruct the due course of justice, dissuades, hinders or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavour to do so; orc.obstructs or in any way interferes with or knowingly prevents the execution of any legal process, civil or criminal, is guilty of an offence and is liable to imprisonment for five years.” 23.It can be seen immediately that section 117 of the Penal code creates three (3) distinct offences as follows –a.False accusation of crime and obstruction, prevention, perversion and defeat of the course of justice.b.Dissuading, hindering or preventing witnesses from testifying (or endeavouring to do so) in order to obstruct the due course of justice.c.Obstructing, interfering with or knowingly preventing execution of any legal process.a.Whether the charge as framed is duplex. 24.A charge is said to be duplex if it contains two or more distinct offences. This kind of a charge would render the trial to be declared a nullity if not corrected before the hearing commence. The principle behind the rule against duplex charges is fair trial. In essence an accused or the accused persons as it is the case herein ought to know with certainty the particular charge they are answering to. 25.From the preceding paragraph it is indeed my observation that Section 117 as a whole provides for 3 distinct offences wherein the prosecution has the liberty to charge the accused under 117(a), (b) or (c) but he cannot purport to charge the accused persons under any of the two in the same count. 26.From the manner in which the charge is framed two separate offences were charged in the only court facing the accused persons; that is conspiracy to defeat justice and interference with witnesses which are separate offences under section 117(a) and (b) of the Penal Code respectively. 27.The exact scenario occurred in the case of Josphat Maina Karuoro vs Republic 2013 KEHC 732(KLR) and the late Justice Majanja(RIP) held on appeal inter alia;“Although the learned State Counsel did not raise it nor did the appellant’s counsel, the appeal against the conviction of the first count must succeed on the ground of duplicity. Section 117(a) of the Penal Code under which the appellant was charged is committed when any person is accuses another falsely of any crime or does anything to obstruct, pervert or defeat the course of justice. Section 117(b) of the Penal Code specifically deals with the obstruction of justice by preventing witnesses from appearing or testifying in court. From the manner in which the charge is framed two separate offences were charged in court one; that is conspiracy to defeat justice and interference with witnesses which are separate offences under section 117(a) and (b) of the Penal Code respectively.” 28.In the end I do find and hold that the charge as facing the accused person is bad for duplicity and cannot be allowed to stand. Whether the accused persons jointly conspired to defeat justice and interfered with witnesses. 29.In as much as I have already found that the charge is bad for duplicity I have taken the liberty to consider this issue non the less in as much as the finding in issue (a) above amounts to an acquittal. 30.It is the law that for the charge of conspiracy to be proved, the burden is on the prosecution to prove that there existed the meeting of minds of the accused persons at the time of the commission of the alleged offence. 31.From the evidence by the state, it failed shot of proving that there was common intention involving the accused persons and their convener Mr. Walid to whom I shall further comment about later on in this judgement. It is the evidence of the Pw 1 that he was called by Mr. Walid and informed him that he would wish to have a word with him over the minor JA. Pw 1 is an uncle to JA. 32.Further it is the evidence of the police officers (Pw 3 and 4) that they pounced and/or ambushed the accused persons after receiving a tip off from Pw 2 who had been notified by Pw 1 and arrested them as soon as they had sat in Mr. Walid’s office. It came out clear that as at the time of the arrest only introductions had been done. 33.It can easily be deduced from the testimonies of Pw 1 and 2 that indeed they were never called by any of the accused persons with a view of settling the matter out of the correct justice systems and if there was then nothing would have stopped Pw 1 and 2 from stating that they were approached by the accused to settle the matter out of police so to speak. The running theme in their testimonies is that Mr. Walid was the one who convened the meeting and had the agenda for the meeting. 34.In defence that was largely uncontroverted, the 1st and 2nd accused persons were not aware of what the meeting was all about. Infact it was the evidence of Pw 1 that infact she never knew why her son had been chased out of school and upon enquiring she was only told that the son was of bad manners and no particulars were given despite her efforts to get information even from the headteacher who only informed her that it was a decision taken by the management of the school. 35.In that state of confusion, she is again called by Mr. Walid who wants to meet her and the child. She responds to the call and asks the 2nd accused to accompany her. As they go to Mr. Walid’s office, they are unaware what the discussion is all about but they nonetheless attend the meeting and they are later arrested even without Mr. Walid informing them the agenda of the meeting. 36.As for the 3rd accused person it is his testimony in my view that he was at the right place at the wrong time. In this sense, he was called by Walid again without telling him why he was calling him but since Walid takes milk from him mostly on credit he was under the impression he had been called to collect money for the milk already consumed. Similarly, he arrived and Mr. Walid never informed him what the call was for and was arrested. As to whether he was to be part of the meeting it is only Mr. Walid who can tell. This explains his central role in this issue. 37.The elements of the offence under section 117(a) is therefore the existence of a conspiracy, that is to say, an agreement between two or more persons to prevent, defeat or obstruct the due course of justice. 38.Black’s Law Dictionary, 10ᵗʰ Edition, at page 375 defines conspiracy as follows:“An agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective, and motive and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.” 39.Similarly, Archbold, Criminal Pleading, Evidence and Practice, states:“The offence of conspiracy cannot exist without the agreement, consent or combination of two or more persons so long as a design rests in intention only, it is not indictable. There must be an agreement; proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them.” 40.The Court in Marete v Republic (Criminal Appeal E068 of 2024) [2025] KEHC 11385 (KLR), where it was held that:“It follows from the foregoing that proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them. 41.The accused in their submissions have referred to 3 authorities which I take the view that are relevant to the case at hand and worth referring to the findings and/or holdings of the courts. 42.The case of Wambua v Republic (2026) KEHC 1867 (KLR), where Justice Kendagor pronounced the elements of the above offence as follows:-“The elements of the offence under section 117(a) is therefore the existence of a conspiracy, that is to say, an agreement between two or more persons to prevent, defeat or obstruct the due course of justice. Black’s Law Dictionary, 10th Edition at page 375 defines conspiracy as follows: “An agreement by two or more persons to commit an unlawful act, coupled with intent to achieve the agreement’s objective, and motive and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.” 43.Similarly, in the case of Christopher Wafula Makokha vs. Republic, Mabeya J. held that:“...it is clear that the prosecution must prove the existence of an agreement between the accused and some other person to do the act". 44.Lastly in the case of Nicholas Shivachi & Another vs. Republic, Justice L. Kimaru (as he then was) held that:“On re-evaluation of the evidence adduced before the trial court, in light of the submission made on this appeal, it was clear to the court that the prosecution failed to establish the essential ingredients of the charge of conspiracy. In the present appeal, no evidence was adduced by the prosecution to establish the existence of an agreement between the Appellants, either by themselves, or with others, to put into effect a course of conduct in furtherance of criminal purpose...” 45.From the foregoing authorities, it is clear that while conspiracy may be proved by inference, such inference must arise from proved criminal acts demonstrating a common unlawful purpose, and not from mere suspicion, inconsistent explanations, or disbelief of an accused person’s defense. 46.From the evidence and as already observed, no common unlawful purpose was established and maybe had the police been a little bit patient and allowed the meeting to start the unlawful purpose would have been apparent. As it stands, it is only Walid who knows why he had called the people he had called in his office. 47.It is not clear why the said Walid was not even questioned and/or arrested on the spot. It is now apparent he was the convener of the meeting and ought to have been charged under the said section but the police know why he was not arrested and it is expected given the issues raised in this judgment the police will take que and do the needful. 48.As if that is not enough, it was the evidence of Pw 1 that Mr. Walid told him that he had convened the meeting as a mediator to bring the 2 families together and that he is doing that in secrecy so that he is not seen to be encouraging such settlements because he has publicly spoken against such settlements. I have always sort to find the perfect equivalent of the saying preaching water and drinking wine but I think the opportunity has availed itself and now I have the perfect example thanks to Mr. Walid. 49.I believe when Mr. Walid will read this judgement and his conscience will be disturbed even for a meeting the 2 families in the cover of darkness. He cannot allegedly speak against settlement of such cases out of the justice system but selectively chose those he would encourage to be settled out of the justice system while chairing the same. He cannot for all intents and purposes have his cake and eat it. He cannot enjoy both of two desirable but mutually exclusive alternatives. 50.I know it is not in my place and powers to direct the police on what to do with the sentiments I have made about Walid. That is entirely upon them and their conscience. 51.In the end I do find and hold that the circumstances as narrated by the prosecution witnesses as to the happenings at Mr. Walid’s office at his Lamu Youth alliance offices on the material date and time did not amount to any discussion, coordination and/or arrangement amongst those who attended specifically the accused persons in a manner that was calculated to prevent or obstruct the course of justice. 52.As if that is not enough and I agree with the accused in their submissions, it is not said in evidence which particular role each of them played towards the commission of the alleged offence and what particular role they played jointly and with a common intention. 53.In The End The Answer To Issue (b) Is Answered In The Negative. D. Conclusion And Disposition. 54.The inevitable conclusion I must arrive at in the circumstances is that even if by any means the charge was not duplex as found by this court, still it would not have survived on the 2nd limb. 55.In the end, the prosecution failed to prove the charge of conspiracy to defeat justice and interference with witnesses contrary to section 117(a) of the Penal Code against all the three (3) accused persons. Each of them is thus acquitted under Section 215 of the Criminal Procedure Code. 56.Right of appeal 14 days. 57.Orders accordingly. DATED AND DELIVERED AT LAMU LAW COURTS THIS 21ST DAY OF MAY 2026.F.M. MULAMARESIDENT MAGISTRATE.In the presence of:Court Assistant:- Abuswaleh.Idris Tomno for DPP.Mr. Abdulmunim for all the accused personsShadia Ali Abdi.Fatma Twahir Abdi.Abdulkarim Omar Abdalla.