The Director of Public Prosecutions (DPP) has okayed the prosecution of Turkish businessman Osman Erdinc Elsek with terrorism related offences, including alleged membership of the Al -Shabaab terror group and collecting information for use in committing terrorist acts.
In a charge sheet presented before a Mombasa court on Monday, February 2, the State also accused Elsek of possessing articles connected to the commission of a terrorist act, and unlawful possession of a firearm.
In the first count, the prosecution alleges that Elsek was a member of Harakat Al-Shabaab Mujahideen, a group designated as a terrorist organisation. The offence is alleged to have been committed on an unknown date and time, but within the Republic of Kenya.
There were 15 active shootings, 20 improvised explosive device attacks and nine kidnappings affecting 119 victims in one year.
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The prosecution further alleges that Elsek was found in possession of a mobile phone, a Samsung Flip 7, which was allegedly used to knowingly collect information in the form of video recordings intended for use in the commission of a terrorist act.
The videos allegedly included content titled: Are you content with the questions to the Muslims in Kenya, Dedicated to the martyr Shaykh Usamah bin Ladin, Moments, and Rouse the believers.
According to the charge sheet, this offence was committed on January 14 at about 1723 hours at the Anti-Terrorism Police Unit (ATPU) offices at Mombasa Police Station.
In another count, the State alleges that the suspect was found in possession of the said videos, which constituted articles connected with the commission of a terrorist act, contrary to Section 30 of the Prevention of Terrorism Act (Pota).
In count four, the prosecution accuses Mr Elsek of unlawful possession of a firearm. It alleges that on January 12, without reasonable excuse, he was found in possession of a Glock pistol serial number RBV973 in circumstances that raised reasonable suspicion that the firearm was intended to be used in a manner prejudicial to public order.
Elsek's associate, Gokmen Sandikci, faces a charge of consorting with a person in possession of a firearm. The State alleges that on January 12, Mr Sandikci was found in the company of Mr Elsek, who was allegedly in possession of the Glock pistol in circumstances raising reasonable suspicion that it was intended for use in a manner prejudicial to public order.
In addition, Mr Elsek and Mr Sandikci are jointly charged with assault causing actual bodily harm. The prosecution alleges that the two assaulted Boniface Katana, thereby causing him actual bodily harm.
The alleged assault is said to have occurred on January 12 at around 2000 hours at Majengo Kananai area in Kilifi South sub-County, Kilifi County.
After nearly 20 days of uncertainty, the ODPP introduced the assault charge against the two Turkish nationals, an offence arising from a road traffic accident involving ODM party politicians along the Mombasa Malindi Highway in Majengo. The State had initially denied before the court that Mr Elsek and Mr Sandikci were under investigation for any offence other than terrorism financing.
In a twist laden with irony, the assault charge was placed as the final count in a six-count charge sheet.
Immediately after the first count alleging membership of Al-Shabaab was read out, Mr Elsek, through his three advocates, raised a preliminary objection, arguing that the charge did not disclose the date, time or specific location of the alleged offence.
The defence argued that it is impossible for the accused to mount a defence against an offence that had not been properly particularised. “The charges are duplex for failure to disclose the date, time and exact place of commission, thereby offending the accused right to a fair trial,” they said.
According to the defence, failure to disclose these particulars rendered the accused person handicapped and incapable of effectively defending himself.
The advocate argued that a duplex charge could not stand and was fatally defective, adding that proceeding on such a charge would amount to a miscarriage of justice. The defence urged the court to strike out the charges.
The defence further argued that the ODPP was not under any mandatory obligation to bring every allegation before the court, particularly those that amounted to mere gossip.
Counsel submitted that by presenting charges that appeared speculative, the ODPP had failed to exercise its prosecutorial discretion as required by law.
Office of the Director of Public Prosecutions.
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The defence also took issue with the introduction of the assault charge, noting that the prosecution had previously denied investigating the suspects for any offence related to assault.
Counsel argued that the State had sought time from the court specifically to investigate terrorism financing and questioned how an assault charge had emerged, yet it was never disclosed as part of the investigations. The defence urged the court to strike out the assault charge on that basis.
The prosecution opposed the objections, maintaining that the charges were properly founded and that the accused persons should be required to plead to them.
“Failure to disclose the date or place of an offence did not mean that no offence had been committed. The charges are not duplex,” said the prosecution.
The prosecution further argued that investigators were not limited to offences cited in earlier applications and were entitled to prefer additional charges uncovered in the course of investigations. The court heard that the investigating officer was within the law in presenting all offences arising from the inquiry.
The magistrate handling the matter is expected to issue directions on February 3. The ruling will determine whether Mr Elsek and Mr Sandikci will take plea or whether the charge sheet will be rejected by the court.
The ATPU officers had told the court that they are investigating the two for terrorism financing. The two were arrested on January 13, 2026, following intelligence linking them to terrorism financing.
Investigators said they needed more time to analyse their financial and banking records, call data, identity documents and refugee status. Police also cited the recovery of a Glock pistol and ammunition from Sandikci and accused both men of misusing a firearm. They described them as flight risks with no known residence and sought their detention to complete investigations.
Elsek has rejected the allegations, describing them as unfounded and politically motivated. He said the matter arose from a traffic accident and a confrontation involving a political convoy, not terrorism.
In an affidavit, he argued that the terrorism claims contradicted police Occurrence Book records, which he said related to a traffic accident in which he was the victim. He denied any links to terrorism financing, said his firearm was lawfully licensed and maintained that his detention was unnecessary.
