DPP challenges the acquittal of terror suspects in explosives case

The Director of Public Prosecutions (DPP) has appealed against the High Court’s decision to overturn 22-year jail terms handed to two men convicted of possessing explosives, bullets and guns believed to have been intended for what could have been Kenya’s deadliest terror attack.

In the appeal, Assistant DPP Duncan Ondimu argued that there is a high risk that Alex Shikanda and Musharaf Abdalla will not attend court, given the seriousness of the charges, following High Court Judge Grace Nzioka’s ruling that their convictions were erroneous.

Ondimu claimed that Abdalla had previously escaped from custody as the appeal was going on at the High Court. He added that Abdalla faces a separate case of committing a terrorist act and had at one point detailed an escape plan from Kamiti Maximum Prison.

He further noted that the acquittal orders were issued on June 13, 2025, but if the two remained in custody, the DPP was willing to expedite the hearing of the appeal to conclusively determine their fate.

“Public interest, victims’ rights, and national security concerns demand that the respondents remain in custody pending the hearing and determination of the appeal and this application,” argued Ondimu.

Justice Grace Nzioka in her judgment, said that there were doubts whether they were actually in possession of the weapons and if they knew that there were weapons in the house where the arsenal was found.

She observed that although Abdalla was arrested in the house, in Eastleigh, Nairobi County, there were unanswered questions by the State, and which tilted the scales of justice in his favour.

At the same time, she observed that Shikanda, who was arrested away from the house, could have also been unaware of the deadly weapons.

Abdimajid Yassin Mohamed alias Ali Hussein alias Browny pleaded guilty on  September 20, 2012 and was sentenced in all the counts, which totaled to 59 years

On Yassin’s sentence, she said the charge sheet was not defective. “He confessed and there is nothing wrong about how he confessed,” she said.

However, she said that although there were eight counts, the single issue was that he was found in possession of weapons.“It was a single transaction. Whether count one or two, the issue is being in possession. Does is call for consecutive sentence, no,” she said.

According to her, the sentences ought to have run concurrently leading to a cumulative sentence of seven years imprisonment.

In their appeal at the High Court, Abdimajid, Shikanda and Musharaf were represented by Chacha Mwita, Prof. Hassan Nandwa and Orlando and Company Advocates.

Yassin wanted the sentence reconsidered, while Abdallah and Shikanda wanted freedom.

In his reply, Chacha argued that when Yassin pleaded guilty to the nine counts he was facing, he was not represented and was jailed for 59 years if the sentences were to run consecutively. He said the sentence was too harsh and way beyond what law provides.

Mwita added that Yassin saved the court time, so the magistrate should have been lenient in sentencing him.

Abdalla and Shikanda were sentenced to 22 years in prison. The two argued that there was no evidence to show that they were either in possession of the weapons or were aware that they were in the housr.

On September 14 2012, police arrested two men in Eastleigh and recovered explosives, guns and ammunition. The explosives, weighing around 18 kilogrammes, were capable of killing more than 500 people. Police also seized 12 hand grenades, 16 magazines and 421 rounds of ammunition.

Then-Superintendent of Police Eliud Lagat, now Deputy Inspector General of Police, was the prosecution’s star witness. He testified that he personally disarmed the explosives. By his assessment, the cache had the potential to cause more casualties than the 1998 Nairobi bombing, which killed at least 212 people, or the Westgate Mall and Garissa University attacks, which claimed 67 and 142 lives respectively

Lagat described how he found two bags containing explosives wired to Nokia phones, and another bag with four AK-47 rifles and ammunition. Other bags contained improvised explosive devices (IEDs), some designed as suicide vests. Each vest contained slabs of TNT, RDX and PETN — all high explosives — lined with more than 2,300 ball bearings intended to maximise casualties.

The court heard that the devices could be detonated by suicide bombers using rocker switches, or remotely via mobile phones if the manual trigger failed.

Yassin and Abdalla initially faced 10 charges. Abdalla pleaded guilty to nine, excluding being unlawfully present in Kenya. The pair were also charged with illegal possession of firearms, ammunition, and explosives.

The appeal now centres on whether the High Court was right to overturn their convictions and sentences, as the DPP pushes to have the men remain in custody pending determination.