' REPUBLIC OF KENYA
IN THE HIGH COURT KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO E435 OF 2025
ABDIWAHAB MOHAMED …………………………….1 ST PETITIOINER
HUSSEIN ABDIRAHMAN MOHAMED ………………..2 ND PETITIONER
VERSUS
ATTORNEY GENERAL …………………………..........1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………………..2 ND RESPONDENT
DIRECTORATE OF CRIMINAL INVSTIGATIONS ……3 RD RESPONDENT
OFFICE OF DIRECTOR OF PUBLIC PROSECIONS… .4 TH RESPONDENT
RULING
The petitioners filed an application dated 14 th July 2025 seeking a habeas corpus order directing the respondents to produce the body of the 2 nd petitioner in court. They sought another order that the respondents jointly and severally furnish the court with information regarding the 2 nd petitioner’s detention, circumstances and reasons for the detention. The application was supported by two affidavits sworn by the 1 st petitioner, a relative to the 2 nd petitioner.
The facts giving rise to the application as can be gleaned from the affidavits in support as well as the grounds stated on the face of the application, are that the 2 nd petitioner is a public servant, serving as the Assistant County Commissioner, Wajir County and the manager of Huduma Centre, in Wajir.
On 7 th July 2025 the 2 nd petitioner was at a public function attended by the Cabinet Secretary, Ministry of Public Service during a visit by the CS to Wajir county. The 2 nd petitioner sat among other dignitaries present at the function.
However, after the function, the 2 nd petitioner disappeared on 8 th July 2025 without notification and had not been traced by the time of filing this application. On 10 th July 2025 a report was made to the police at Sojir police station after family members’ effort to trace the 2 nd petitioner yielded no fruit. They were issued with an OB 17/10/7/25.
This application was then filed by the 1 st petitioner, a relative to the 2 nd petitioner seeking the orders as the court’s assistance in protecting the 2 nd petitioner’s rights and fundamental freedoms.
The 1 st , 2 nd and 3 rd respondents filed replying affidavits sworn by Kenga Chea on 16 th and 18 th July 2025 respectively in response to the application. It was deposed that the 2 nd petitioner’s disappearance was reported to the police on 10 th July 2025 at 955Hours by Abdisalam Mohamed, a nephew to the 2 nd petitioner. The Sub- County Criminal Investigations Officer took over the investigations and detailed the deponent to inquire into the matter. Statements were recorded from three persons, including Abdisalam Mohamed who stated that he had been informed by Ali Yusuf a family member that the 2 nd petitioner went missing on 8 th July 2025.
Ahmed Muhamud Mohamed, a cousin to the 2 nd petitioner also recorded a statement and stated that he tried to contact the 2 nd petitioner but his phone was switched off. Hassim Mude Arale, the Deputy Wajir Huduma Centre manager also stated that he had worked with the 2 nd petitioner for 4 years; that the 2 nd petitioner was to start his annual leave on 4 th July 2025 but delayed it due to the impending visit by the Cabinet Secretary. On 8 th July 2025, the 2 nd petitioner visited the office; took his personal belongings and left at 8.30. The 2 nd petitioner related well with members of staff in the office.
Following the information gathered, a police communication was generated on a missing person to all police stations in the country. The Officer Commanding Station together with officers from the DCI visited the 2 nd petitioner’s residence but he was not found. The SCCIO Wajir North also visited the 2 nd petitioner’s home but he was not at home. Police investigators had summoned people believed to have been with the 2 nd petitioner to record statements and that all effort was being made in trying to find the 2 nd petitioner.
The 1 st 2 nd and 3 rd respondents denied that the police were holding the 2 nd petitioner for any reason and therefore cannot produce a person not in their custody.
The 4 th respondent filed grounds of opposition stating that he is not responsible in arresting and detaining people and therefore he had nothing to do with the 2 nd petitioner.
Parties filed written submissions which they highlighted. Mr. Shadrack Wambui, teaming up with Mr Danstan Omar, Mr. Hussein and Mr. Swiga, moved the application and urged the court to grant the orders sought. According to learned counsel, the application seeks an order of habeas corpus directing the respondent to produce the 2 nd petitioner before the court “dead or alive.” Counsel submitted that the 2 nd petitioner attended a public function on 7 th July 2025 with CS Public Service. On 8 th July 2025 he dropped his children at school but was not seen again even after the family made a report to the police over the disappearance. The petition had therefore been brought against the respondents since the Constitution places a duty on the state to protect, promote and fulfil rights and fundamental freedoms in the Bill of Rights.
Counsel argued that the respondents owe the petitioners and the court a duty to disclose the whereabouts of the 2 nd petitioner who remains missing. They urged the court to exercise its powers under Article 165(3) of the Constitution and issue orders directing the respondents to explain the whereabouts of the 2 nd petitioner. They relied on the decision in Gitirai Peter Munya v Dickson Mwenda Njoka & 2 others [2014] eKLR on granting conservatory orders and Law Society of Kenya v Martin Mbae Kithinji Petition E 373 of 24 for the position that it had become customary for police to use masks and unmarked vehicles.
Mr. Terrell, learned counsel for the 1 st , 2 nd and 3 rd respondents, submitted that the respondents had taken steps to trace the where abouts of the 2 nd petitioner after he was reported missing. According to learned counsel, an inquiry file was opened and statements had been recorded from persons who know the 2 nd petitioner. A signal had also been sent out to all police stations in the country on the 2 nd petitioner’s missing.
Mr. Terrell argued that the petitioners had not shown that the 2 nd petitioner was in the custody of the respondents and therefore the court should not issue a habeus corpus order. Counsel relied on the decision in Republic v Commissioner of police Ex parte Salmiin Mohamed Hamis [2003] KEHC 283 (KLR) on the purpose of the writ of habeas corpus. He also relied on Juma v Inspector General of Police & others [2025] eKLR; [2005] KEHC 2711(KLR) on the burden of proof.
Mr. Mulati, learned counsel for the 4 th respondent opted to leave the matter to the court.
I have considered the application, responses and arguments made on behalf of the parties. The application seeks an order of habeas corpus directing the respondents to produce the body of the 2 nd petitioner in court and another order that the respondents jointly and severally furnish the court with information regarding the 2 nd petitioner’s detention; circumstances and reasons for the detention.
From the application, responses and arguments by counsel for the parties, the facts in this application are undisputed. The 2 nd petitioner is a senor public official, an Assistant County Commissioner. He was as at 8 th July 2025 the Manager at Huduma Centre, in Wajir.
The 2 nd petitioner participated in a public function attended by the Cabinet Secretary, Ministry of Public Service on 7 th July 2025 in Wajir county before he went missing on 8 th July 2025. At the time of hearing this application, the 2 nd petitioner had not been seen or found.
Both sided also agree that a report of the 2 nd petitioner’s missing was made to the police and statements recorded from some people. The 1 st , 2 nd and 3 rd respondents stated that a signal was also sent to all police stations in the country regarding the 2 nd petitioner’s missing. The respondents maintained that the 2 nd petitioner was not in their custody; an investigation file had been opened and they were trying to find out the whereabouts of the 2 nd petitioner.
The petitioners seek an order of habeas corpus directing the respondents to produce the 2 nd petitioner in court “dead or alive. ” In the alternative, the respondents should explain the detention of the 2 nd petitioner and circumstances leading to such detention.
Habeas corpus is an order issued by a court directed at the state or its functionaries to produce the body of the applicant or the subject to enable the court determine whether the person’s detention is valid in law. The order is usually intended as an inquiry to determine whether the person held by the state is still alive or dead moreso, where the person is no longer being lawfully held. Many times, orders of habeas corpus are issued ex parte to protect the rights and fundamental freedoms of the person, pending the hearing of the application.
I have read the pleadings and supporting documents. There is no deposition, averment or statement that the 2 nd petitioner was arrested, picked or “abducted” by officers of the 2 nd or 3 rd respondents or persons acting as their agents. The affidavits state that the officer disappeared and had not been traced.
I have also read the responses by the 1 st , 2 nd and 3 rd respondents. They deny that the 2 nd petitioner is in their custody. They further state that after a report was made regarding the 2 nd petitioner’s disappearance investigations commenced and were on going at the time of hearing the application.
Flowing from what is stated above and based on the facts in the record, it is difficult to pin point that the respondents or their agents arrested, took into custody or are holding the 2 nd petitioner to lead this court to issuing the orders sought in this application.
In the circumstances, the application is declined and dismissed. No order as to costs
Dated and delivered at Nairobi this 16 th Day of September 2025
E C MWITA
JUDGE
'
IN THE HIGH COURT KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO E435 OF 2025
ABDIWAHAB MOHAMED …………………………….1 ST PETITIOINER
HUSSEIN ABDIRAHMAN MOHAMED ………………..2 ND PETITIONER
VERSUS
ATTORNEY GENERAL …………………………..........1 ST RESPONDENT
INSPECTOR GENERAL OF POLICE…………………..2 ND RESPONDENT
DIRECTORATE OF CRIMINAL INVSTIGATIONS ……3 RD RESPONDENT
OFFICE OF DIRECTOR OF PUBLIC PROSECIONS… .4 TH RESPONDENT
RULING
The petitioners filed an application dated 14 th July 2025 seeking a habeas corpus order directing the respondents to produce the body of the 2 nd petitioner in court. They sought another order that the respondents jointly and severally furnish the court with information regarding the 2 nd petitioner’s detention, circumstances and reasons for the detention. The application was supported by two affidavits sworn by the 1 st petitioner, a relative to the 2 nd petitioner.
The facts giving rise to the application as can be gleaned from the affidavits in support as well as the grounds stated on the face of the application, are that the 2 nd petitioner is a public servant, serving as the Assistant County Commissioner, Wajir County and the manager of Huduma Centre, in Wajir.
On 7 th July 2025 the 2 nd petitioner was at a public function attended by the Cabinet Secretary, Ministry of Public Service during a visit by the CS to Wajir county. The 2 nd petitioner sat among other dignitaries present at the function.
However, after the function, the 2 nd petitioner disappeared on 8 th July 2025 without notification and had not been traced by the time of filing this application. On 10 th July 2025 a report was made to the police at Sojir police station after family members’ effort to trace the 2 nd petitioner yielded no fruit. They were issued with an OB 17/10/7/25.
This application was then filed by the 1 st petitioner, a relative to the 2 nd petitioner seeking the orders as the court’s assistance in protecting the 2 nd petitioner’s rights and fundamental freedoms.
The 1 st , 2 nd and 3 rd respondents filed replying affidavits sworn by Kenga Chea on 16 th and 18 th July 2025 respectively in response to the application. It was deposed that the 2 nd petitioner’s disappearance was reported to the police on 10 th July 2025 at 955Hours by Abdisalam Mohamed, a nephew to the 2 nd petitioner. The Sub- County Criminal Investigations Officer took over the investigations and detailed the deponent to inquire into the matter. Statements were recorded from three persons, including Abdisalam Mohamed who stated that he had been informed by Ali Yusuf a family member that the 2 nd petitioner went missing on 8 th July 2025.
Ahmed Muhamud Mohamed, a cousin to the 2 nd petitioner also recorded a statement and stated that he tried to contact the 2 nd petitioner but his phone was switched off. Hassim Mude Arale, the Deputy Wajir Huduma Centre manager also stated that he had worked with the 2 nd petitioner for 4 years; that the 2 nd petitioner was to start his annual leave on 4 th July 2025 but delayed it due to the impending visit by the Cabinet Secretary. On 8 th July 2025, the 2 nd petitioner visited the office; took his personal belongings and left at 8.30. The 2 nd petitioner related well with members of staff in the office.
Following the information gathered, a police communication was generated on a missing person to all police stations in the country. The Officer Commanding Station together with officers from the DCI visited the 2 nd petitioner’s residence but he was not found. The SCCIO Wajir North also visited the 2 nd petitioner’s home but he was not at home. Police investigators had summoned people believed to have been with the 2 nd petitioner to record statements and that all effort was being made in trying to find the 2 nd petitioner.
The 1 st 2 nd and 3 rd respondents denied that the police were holding the 2 nd petitioner for any reason and therefore cannot produce a person not in their custody.
The 4 th respondent filed grounds of opposition stating that he is not responsible in arresting and detaining people and therefore he had nothing to do with the 2 nd petitioner.
Parties filed written submissions which they highlighted. Mr. Shadrack Wambui, teaming up with Mr Danstan Omar, Mr. Hussein and Mr. Swiga, moved the application and urged the court to grant the orders sought. According to learned counsel, the application seeks an order of habeas corpus directing the respondent to produce the 2 nd petitioner before the court “dead or alive.” Counsel submitted that the 2 nd petitioner attended a public function on 7 th July 2025 with CS Public Service. On 8 th July 2025 he dropped his children at school but was not seen again even after the family made a report to the police over the disappearance. The petition had therefore been brought against the respondents since the Constitution places a duty on the state to protect, promote and fulfil rights and fundamental freedoms in the Bill of Rights.
Counsel argued that the respondents owe the petitioners and the court a duty to disclose the whereabouts of the 2 nd petitioner who remains missing. They urged the court to exercise its powers under Article 165(3) of the Constitution and issue orders directing the respondents to explain the whereabouts of the 2 nd petitioner. They relied on the decision in Gitirai Peter Munya v Dickson Mwenda Njoka & 2 others [2014] eKLR on granting conservatory orders and Law Society of Kenya v Martin Mbae Kithinji Petition E 373 of 24 for the position that it had become customary for police to use masks and unmarked vehicles.
Mr. Terrell, learned counsel for the 1 st , 2 nd and 3 rd respondents, submitted that the respondents had taken steps to trace the where abouts of the 2 nd petitioner after he was reported missing. According to learned counsel, an inquiry file was opened and statements had been recorded from persons who know the 2 nd petitioner. A signal had also been sent out to all police stations in the country on the 2 nd petitioner’s missing.
Mr. Terrell argued that the petitioners had not shown that the 2 nd petitioner was in the custody of the respondents and therefore the court should not issue a habeus corpus order. Counsel relied on the decision in Republic v Commissioner of police Ex parte Salmiin Mohamed Hamis [2003] KEHC 283 (KLR) on the purpose of the writ of habeas corpus. He also relied on Juma v Inspector General of Police & others [2025] eKLR; [2005] KEHC 2711(KLR) on the burden of proof.
Mr. Mulati, learned counsel for the 4 th respondent opted to leave the matter to the court.
I have considered the application, responses and arguments made on behalf of the parties. The application seeks an order of habeas corpus directing the respondents to produce the body of the 2 nd petitioner in court and another order that the respondents jointly and severally furnish the court with information regarding the 2 nd petitioner’s detention; circumstances and reasons for the detention.
From the application, responses and arguments by counsel for the parties, the facts in this application are undisputed. The 2 nd petitioner is a senor public official, an Assistant County Commissioner. He was as at 8 th July 2025 the Manager at Huduma Centre, in Wajir.
The 2 nd petitioner participated in a public function attended by the Cabinet Secretary, Ministry of Public Service on 7 th July 2025 in Wajir county before he went missing on 8 th July 2025. At the time of hearing this application, the 2 nd petitioner had not been seen or found.
Both sided also agree that a report of the 2 nd petitioner’s missing was made to the police and statements recorded from some people. The 1 st , 2 nd and 3 rd respondents stated that a signal was also sent to all police stations in the country regarding the 2 nd petitioner’s missing. The respondents maintained that the 2 nd petitioner was not in their custody; an investigation file had been opened and they were trying to find out the whereabouts of the 2 nd petitioner.
The petitioners seek an order of habeas corpus directing the respondents to produce the 2 nd petitioner in court “dead or alive. ” In the alternative, the respondents should explain the detention of the 2 nd petitioner and circumstances leading to such detention.
Habeas corpus is an order issued by a court directed at the state or its functionaries to produce the body of the applicant or the subject to enable the court determine whether the person’s detention is valid in law. The order is usually intended as an inquiry to determine whether the person held by the state is still alive or dead moreso, where the person is no longer being lawfully held. Many times, orders of habeas corpus are issued ex parte to protect the rights and fundamental freedoms of the person, pending the hearing of the application.
I have read the pleadings and supporting documents. There is no deposition, averment or statement that the 2 nd petitioner was arrested, picked or “abducted” by officers of the 2 nd or 3 rd respondents or persons acting as their agents. The affidavits state that the officer disappeared and had not been traced.
I have also read the responses by the 1 st , 2 nd and 3 rd respondents. They deny that the 2 nd petitioner is in their custody. They further state that after a report was made regarding the 2 nd petitioner’s disappearance investigations commenced and were on going at the time of hearing the application.
Flowing from what is stated above and based on the facts in the record, it is difficult to pin point that the respondents or their agents arrested, took into custody or are holding the 2 nd petitioner to lead this court to issuing the orders sought in this application.
In the circumstances, the application is declined and dismissed. No order as to costs
Dated and delivered at Nairobi this 16 th Day of September 2025
E C MWITA
JUDGE
'