1. The Judgment herein is in respect of Petition dated 18th June 2024 presented under Articles 2, 3, 10,19,20,21,22,23,24,25(d),28,29,48,50,159,165,239,244,245 and 259 of the Constitution. The Petitioners seek the following Orders-
4) This Honourable Court do grant an order of habeas corpus against the Respondents requiring them to produce the body (sic) of Ahmed Ibrahim Wako and Hassan Maalim Ali
4) This Honourable Court do grant a declaration that the Respondents are under a duty to inform the Petitioners and the public as to the whereabouts and status of Ahmed Ibrahim Wako and Hassan Maalim Ali
4) In the alternative to prayers 1 and 2 above, for compensation to the Petitioners for the Respondents’ failure to protect the lives of Ahmed Ibrahim Wako and Hassan Maalim Ali as required of them under the Constitution.
2. The Petition is supported by affidavits sworn on even date by the three petitioners. The 1st Petitioner is the spouse of Hassan Maalim Ali, the 2nd Petitioner is the spouse of Ahmed Ibrahim Wako, while the 3rd Petitioner is a brother to Hassan Maalim Ali and a Cousin to Ahmed Ibrahim Wako.
3. The matter proceeded by way of viva voce evidence; the 2nd and 3rd Petitioners testified and, in their evidence, recited the contents of their respective affidavits. At the time that the Petition was heard, Ahmed Ibrahim Wako had been released and was back home. He, however, was not called as a witness. Like wise the 1st Petitioner did not testify. Both the 2nd and 3rd Petitioners contended that the two failed to testify on account of fear as they had been threatened.
4. It is the Petitioner’s case that the two subjects, Ahmed Ibrahim Wako and Hassan Maalim Ali, were abducted on 23rd May 2024 by men believed to be police officers. The 3rd Petitioner, who was present, states that a grey double cabin pickup, registration KCV 015F, blocked their vehicle near Mlango Kubwa, where four plain clothed men forcibly handcuffed and carried away the subjects without disclosing the reasons for arrest or their intended destination.
5. The Petitioners testified that the incident was reported at Pangani Police Station under OB/23/05/24; the officers denied knowledge of any arrest or operation and confirmed that the subjects were never booked at the station. Despite recording statements at both Pangani Police Station and DCI offices, the family has received no information about the subjects' whereabouts.
6. The Petitioners assert that the arrest and continued incommunicado detention violate multiple constitutional guarantees, including the rights to human dignity, freedom from arbitrary detention, freedom from torture, access to information, and the right to be produced in court within 24 hours. They also express apprehension that the Respondents may facilitate the subjects’ illegal deportation or enforced disappearance, noting that more than 48 hours had elapsed without production before any lawful authority.
7. The 1st, 3rd and 4th Respondents argue that the Petitioners have failed to prove that officers of the National Police Service or the Directorate of Criminal Investigations were responsible for the alleged abductions. They note that the Petitioners merely state that the abductors “looked like Kenyans,” were in plain clothes, and used a civilian motor vehicle, Reg. No. KCV 015E 9 (sic), whereas official police vehicles ordinarily bear GK plates. They contend that the Petitioners have not identified any police station where the subjects are allegedly held, and therefore have not pleaded their case with the clarity and precision required in the landmark decision in the case of Anarita Karimi Njeru vs. Republic [1979] KLR.
8. The Respondents further submit that habeas corpus is limited to determining whether a person is unlawfully detained and does not extend to the enforcement of fundamental rights, relying on Ooko –vs– Republic No. 1159 of 1966 (unreported) and the Supreme Court’s holding in Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another [2023] KESC 61 (KLR). They therefore pray that the Petition be dismissed with costs, stating that if the Petitioners seek assistance in tracing the missing persons, other legal mechanisms exist for that purpose.
9. The 2nd Respondent, the Director of Public Prosecutions, contends that the Petition discloses no reasonable cause of action against him, as his constitutional mandate under Article 157 does not extend to arrest, detention or custody of suspects. He argues that the Petition fails the constitutional threshold of precision required in Anarita Karimi Njeru vs Republic (Supra), being vague, generalized and unsupported by any specific acts attributable to the DPP.
10. The Respondent asserts that the Petition is speculative and premised on conjecture rather than demonstrable facts, particularly regarding the alleged involvement of the DPP in the disappearance of the subjects. He further submits that the writ of habeas corpus is legally untenable against the DPP, who neither has custody nor control over the persons sought to be produced, and that no prosecutorial decision or action under Article 157(6) has been shown. The Respondent maintains that the Petition offends the doctrine of separation of powers by attempting to impose liability on the DPP for investigative and operational functions outside his mandate, and that the allegations of arrest by unidentified persons in plain clothes disclose no nexus to the DPP. He therefore argues that the Petition has not demonstrated any violation of rights attributable to the DPP, and that it amounts to an abuse of court process warranting dismissal.
11. Parties were invited to file submissions. The Petitioner’s submissions are dated 29th May 2026. The Petitioners submit that the jurisprudence in Grace Stuart Ibingira & others v Uganda [1966] EA 445, as well as Said & another v Attorney General & 3 others; Haki Africa & 2 others (Interested Parties) [2022] KEHC 313 (KLR), establishes that the abduction of the Subjects, the concealment of their whereabouts, and the Respondents’ refusal to investigate constitute enforced disappearance. They contend that the Respondents’ failure to trace vehicle KCV 015F, failure to act on OB/23/05/24, and failure to investigate despite credible evidence amounts to State acquiescence, thereby satisfying the legal threshold for habeas corpus.
12. On the evidential burden, the Petitioners submit that once a prima facie case of enforced disappearance is established, the burden shifts to the State. They rely on Mbarak Khalid Bakari v Director of Public Prosecutions & 2 others [2020] KEHC 8970 (KLR) and Masoud Salim Hemed & another v Director of Public Prosecutions & 3 others [2014] eKLR, where the courts held that the State must “aggressively rebut” allegations of unlawful detention. They argue that the Respondents have filed no Replying Affidavit, produced no investigation report, traced no vehicle, and provided no CCTV or communication logs, thereby failing to discharge the shifted burden. The Petitioners urge the Court to draw an adverse inference that the Respondents are concealing the Subjects and that Hassan Maalim Ali remains in unlawful State custody.
13. On the legal sufficiency of the Petition, the Petitioners submit that the Petition meets the precision requirement in Anarita Karimi Njeru v Republic (1979) KLR 154, as it clearly identifies the violated constitutional provisions—Articles 2(5), 2(6), 10(2)(b), 25(a), 25(c), 25(d), 26, 28, 29, 35, 48, 49, 50, and 165(3)(b)—and details the manner of violation, including unlawful arrest, incommunicado detention, concealment of whereabouts, and discriminatory targeting. They argue that the Respondents’ reliance on Anarita Karimi (Supra) is misplaced because concealment of the place of detention is inherent in enforced disappearance. On joinder, they submit that the 2nd Respondent (DPP) is properly joined under Article 157(4), which empowers him to direct investigations, and that any alleged misjoinder is curable under Rule 5(b) of the Mutunga Rules. They therefore urge the Court to grant habeas corpus for the production of Hassan Maalim Ali, declare the Respondents’ duty to disclose the Subjects’ whereabouts, and grant appropriate reliefs including compensation.
14. The 1st, 3rd and 4th respondents’ submissions are dated 30th August 2026. The Respondents submit that the Petitioners have not established a prima facie case of unlawful detention attributable to the 1st, 3rd or 4th Respondents. They argue that habeas corpus is directed at a custodian, and the burden shifts to the State only after a petitioner demonstrates a rational evidential basis connecting the specific respondent to the alleged detention. They rely on statutory requirements under Sections 24 and 35 of the National Police Service Act and Section 29(a) of the Criminal Procedure Code, noting that lawful police arrests involve identification, record keeping, and OB entries, none of which appear in the Petitioners’ account. The Respondents emphasise that the abductors were in plain clothes, used a civilian vehicle KCV 015F, and made no OB entry, circumstances they argue are “equally, if not more, consistent” with non State actors. They rely heavily on Mbarak Khalid Bakari v Director of Public Prosecutions & 2 others [2020] KEHC 8970 (KLR), where the High Court declined to shift the burden to the State in similar circumstances involving unidentified armed men in an unmarked vehicle.
15. On the scope of habeas corpus, the Respondents submit that the writ is constitutionally confined to production of the subject and testing the legality of detention, and cannot be expanded to declaratory, mandatory or compensatory reliefs. They cite Grace Stuart Ibingira & Others v Uganda [1966] EA 445, where the writ was described as a mechanism to “require the production… so as to test the validity of the detention.” They further rely on the Supreme Court’s holding in Gitonga Mwangi Muriithi v Zehrabanu Janmohamed & another, SC Petition No. 41 of 2018; [2023] KESC 30 (KLR), which affirmed that habeas corpus cannot be used to obtain compensation or broader constitutional remedies. They also cite Mariam Mohamed & Anor v Commissioner of Police & Anor, Misc. Crim. Appli. No. 732 of 2007; [2007] eKLR, where Ojwang J held that alleged violations of rights must be pursued through a separate constitutional petition under Article 22. Accordingly, they argue that prayers seeking damages, mandatory orders, investigative directions, and declarations fall outside the permissible scope of habeas corpus.
16. On attribution, the Respondents argue that even if some form of State involvement were inferred, the Petitioners have not demonstrated a nexus specifically linking the abduction to the operational command of the 1st or 3rd Respondents. They note that Kenya’s security architecture includes multiple agencies, such as the National Intelligence Service and multi agency units, making attribution to the National Police Service speculative without evidence.
17. They again rely on Mbarak Khalid Bakari (supra), where the High Court refused to infer police involvement despite similar facts. The Respondents submit that the Petitioners’ evidence does not meet the threshold required to sustain coercive orders against named respondents, and that habeas corpus cannot be issued against parties not shown to be custodians. They therefore urge dismissal of the Petition, or alternatively, confinement of any relief strictly to production of the subject, excluding declaratory, mandatory and compensatory remedies.
ANALYSIS AND DETERMINATION
18. Having considered the pleadings evidence adduced and the submissions on record alongside the relevant law, I frame the following as the issues for determination;
4) Whether the Director of Public Prosecutions, the 2nd respondent is a proper party in the Petition?
4) Whether an Order of Habeas Corpus should issue?
4) Whether a declaration should issue compelling the Respondents to inform the Petitioners and the public as to the whereabouts of the Subjects of this Petition
4) Whether the Petitioners are entitled to compensation for the failure of the Respondents to protect the lives of the subjects of this Petition.
Whether the Director of Public Prosecutions, the 2nd respondent is a proper party in the Petition?
19. In determining whether the Director of Public Prosecutions is properly joined to these proceedings, one must begin with the Constitution itself. Article 157 establishes the Office of the DPP and entrusts it with responsibility for directing and controlling criminal prosecutions. The Petition before this Court seeks habeas corpus orders, a declaration compelling disclosure of the subjects’ whereabouts, and compensation for the alleged failure of State actors to safeguard life. On its face, none of these prayers impugns any prosecutorial act, decision, or omission attributable to the DPP.
20. The Petitioners attempt to anchor the DPP in these proceedings by invoking Article 157(4), arguing that he has the power to direct the Inspector General to investigate allegations of criminal conduct. That submission, however, must be read alongside Article 157(10), which jealously guards the DPP’s independence and insulates prosecutorial discretion from external compulsion. The Petitioners have not demonstrated that the circumstances herein triggered any constitutional duty upon the DPP to issue investigative directions to the Inspector General, or that the matter has been brought to the DPP’s prior attention apart from this Petition. It is therefore not within the Court’s province to compel the DPP to instruct investigations into the disappearance of the subjects. It is well settled that constitutional powers must be exercised within their proper boundaries.
21. I find that the DPP's independence remains unassailable in this context. No prosecutorial decision is under challenge, no act of the DPP is in issue, and no jurisdiction exists to compel him to intervene. The 2nd Respondent is therefore not a necessary party to these proceedings and is accordingly struck out.
Whether an Order of Habeas Corpus should issue?
22. In Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another [2023] KESC 61 (KLR) the Supreme Court discussed in detail the nature and scope of an application for habeas corpus. The Court stated-
[60] The essence of a writ or order of habeas corpus is to secure the production of a person in a court of law by the State so as to facilitate a judicial inquiry into the reasons for his/her incarceration. The application for such an order, is usually directed at an agency of the State, where the applicant has reason to believe that the missing person, is in the custody of the former. The reason the writ of habeas corpus is celebrated by human rights defenders in common law jurisdictions, is that for many centuries of yore, it has provided succour to those unjustly incarcerated. To this day, it is continually regarded as a fountain of liberty. A bulwark against illegal confinement of those, who would otherwise be free. It liberates the oppressed from the dungeons of those who wield authority over the citizenry
23. A prerequisite for the issuance of the order is that it be established that the subject is in the custody of the respondent. In Law Society of Kenya & 3 others v Attorney General & 2 others; Independent Policing Oversight Authority (Interested Party) [2023] KEHC 26888 (KLR) cited with the approval the reasoning of the Supreme Court of Philippines in Ngaya-an v. Balweg, 200 SCRA 149, 154-5, August 5, 1991 per Jaris, J -
If the Respondents are neither detaining nor retaining the applicant or the person on whose behalf the petition for habeas corpus has been filed, then it should be dismissed. This Court has ruled that this remedy has one objective – to inquire into the cause of detention of a person:
The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited.- (Alejano v. Cabuay 468 SCRA 188, 200, August 25 2005 per Carpio, J.)’
Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When the respondents making a return of the writ state that they have never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary.
24. The evidence adduced by the Petitioners falls short of the legal threshold set by Sections 107, 108 and 109 of the Evidence Act. The Petitioners describe the abductors as having concealed their faces, resembling Kenyans and having handcuffs. On this basis, they conclude they are police officers. They state that they reported the incident to the police and the Director of Criminal Investigation. They give the date of the report but not the Occurrence Book Number. The report is cited as OB /23/05/2024.
25. In Kidwai v Inspector General of Police & 8 others [2026] KEHC 7783 (KLR), in almost identical circumstances, the Court observed-
[36]. Similarly, in KS (Suing as Father and Next Friend of DNS) v Wangusi & 5 Others, the Court clarified that habeas corpus proceedings are not intended to operate as generalized investigative processes into disappearances where State custody remains speculative or unproven. The Court observed that where custodial responsibility is uncertain, the matter may more appropriately fall within the province of criminal investigations, commissions of inquiry, or inquest proceedings.
[37]. Custody for purposes of habeas corpus may be actual, constructive, or de facto control, including situations where a respondent is shown to exercise effective control over the liberty of the subject, whether directly or through agents. However, constructive custody cannot be presumed solely from disappearance occurring in suspicious circumstances absent additional evidentiary indicators linking the respondent to control, detention infrastructure, or identifiable operational conduct.
[38]. This Court is therefore persuaded that the applicable legal test in habeas corpus proceedings is not merely whether a disappearance has occurred, for that may well be undisputed, but whether there exists sufficient material upon which the Court can reasonably draw an inference of actual or constructive custody that the respondent has actual, constructive, or inferential custody over the subject. Mere suspicion, conjecture, public anxiety, or even strong probability cannot alone suffice. The writ, though protective of liberty, remains judicial in character and must therefore operate within ascertainable evidentiary limits. The existence of disappearance, even if established, does not ipso facto establish custodial responsibility.
26. I find therefore that the Petitioners, having failed to demonstrate that the Subjects are in the custody of the 1st and 3rd respondents or their officers, the prayer for an order of habeas corpus must fail.
Whether a declaration should issue compelling the Respondents to inform the Petitioners and the public as to the whereabouts of the Subjects of this Petition?
27. I think it bears emphasising that a litigant who approaches the Court alleging a violation of constitutional rights assumes a high and solemn obligation. Such a party must set out their case with clarity, precision, and particularity. Where a petitioner invokes the Constitution, he must plead the right, identify the violator, and demonstrate the manner of violation with sufficient exactitude. Anything less would invite speculation, and speculation has no place in constitutional adjudication. I reiterate, constitutional litigation is not a casual affair; it demands disciplined pleading. The Court cannot be asked to “fill in the gaps” or “patch up the holes” in a party’s case.
28. In Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court reiterated,
It is also imperative to take note of the fact that even in situations where a respondent does not file or tender evidence to counter the petitioner’s case, the petitioner still bears the burden of establishing his/her allegations on a balance of probabilities.
29. I have already found that the Petitioners failed to meet the evidential threshold for an order of habeas corpus. They do not expressly state so, but I assume this particular prayer is rooted in the state responsibility to protect against enforced disappearances. An obligation that stems both from our commitments under international law and constitutional safeguards. Again, in Kidwai (Supra) in dismissing a similar prayer observed-
[49]. The Court further notes the argument that in cases of alleged enforced disappearance, comparative human rights jurisprudence has in certain instances recognised a shifting evidential burden once a petitioner establishes a prima facie case of disappearance in suspicious circumstances. However, the application of such principle remains contingent upon the establishment of an initial evidentiary foundation linking the State to the alleged deprivation of liberty, which is absent in the present case
30. No basis has been laid for the Court to direct that the 1st and 3rd respondents disclose the whereabouts of the subjects.
Whether the Petitioners are entitled to compensation for the failure of the Respondents to protect the lives of the subjects of this Petition?
31. The issue of damages would only arise for consideration, if the Petitioners had established violation of rights by the respondents. They have not done so. This limb also fails.
32. In the end therefore the Petition is dismissed in its entirety
33. Each party will bear their own costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH SEPTEMBER 2026
4) This Honourable Court do grant an order of habeas corpus against the Respondents requiring them to produce the body (sic) of Ahmed Ibrahim Wako and Hassan Maalim Ali
4) This Honourable Court do grant a declaration that the Respondents are under a duty to inform the Petitioners and the public as to the whereabouts and status of Ahmed Ibrahim Wako and Hassan Maalim Ali
4) In the alternative to prayers 1 and 2 above, for compensation to the Petitioners for the Respondents’ failure to protect the lives of Ahmed Ibrahim Wako and Hassan Maalim Ali as required of them under the Constitution.
2. The Petition is supported by affidavits sworn on even date by the three petitioners. The 1st Petitioner is the spouse of Hassan Maalim Ali, the 2nd Petitioner is the spouse of Ahmed Ibrahim Wako, while the 3rd Petitioner is a brother to Hassan Maalim Ali and a Cousin to Ahmed Ibrahim Wako.
3. The matter proceeded by way of viva voce evidence; the 2nd and 3rd Petitioners testified and, in their evidence, recited the contents of their respective affidavits. At the time that the Petition was heard, Ahmed Ibrahim Wako had been released and was back home. He, however, was not called as a witness. Like wise the 1st Petitioner did not testify. Both the 2nd and 3rd Petitioners contended that the two failed to testify on account of fear as they had been threatened.
4. It is the Petitioner’s case that the two subjects, Ahmed Ibrahim Wako and Hassan Maalim Ali, were abducted on 23rd May 2024 by men believed to be police officers. The 3rd Petitioner, who was present, states that a grey double cabin pickup, registration KCV 015F, blocked their vehicle near Mlango Kubwa, where four plain clothed men forcibly handcuffed and carried away the subjects without disclosing the reasons for arrest or their intended destination.
5. The Petitioners testified that the incident was reported at Pangani Police Station under OB/23/05/24; the officers denied knowledge of any arrest or operation and confirmed that the subjects were never booked at the station. Despite recording statements at both Pangani Police Station and DCI offices, the family has received no information about the subjects' whereabouts.
6. The Petitioners assert that the arrest and continued incommunicado detention violate multiple constitutional guarantees, including the rights to human dignity, freedom from arbitrary detention, freedom from torture, access to information, and the right to be produced in court within 24 hours. They also express apprehension that the Respondents may facilitate the subjects’ illegal deportation or enforced disappearance, noting that more than 48 hours had elapsed without production before any lawful authority.
7. The 1st, 3rd and 4th Respondents argue that the Petitioners have failed to prove that officers of the National Police Service or the Directorate of Criminal Investigations were responsible for the alleged abductions. They note that the Petitioners merely state that the abductors “looked like Kenyans,” were in plain clothes, and used a civilian motor vehicle, Reg. No. KCV 015E 9 (sic), whereas official police vehicles ordinarily bear GK plates. They contend that the Petitioners have not identified any police station where the subjects are allegedly held, and therefore have not pleaded their case with the clarity and precision required in the landmark decision in the case of Anarita Karimi Njeru vs. Republic [1979] KLR.
8. The Respondents further submit that habeas corpus is limited to determining whether a person is unlawfully detained and does not extend to the enforcement of fundamental rights, relying on Ooko –vs– Republic No. 1159 of 1966 (unreported) and the Supreme Court’s holding in Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another [2023] KESC 61 (KLR). They therefore pray that the Petition be dismissed with costs, stating that if the Petitioners seek assistance in tracing the missing persons, other legal mechanisms exist for that purpose.
9. The 2nd Respondent, the Director of Public Prosecutions, contends that the Petition discloses no reasonable cause of action against him, as his constitutional mandate under Article 157 does not extend to arrest, detention or custody of suspects. He argues that the Petition fails the constitutional threshold of precision required in Anarita Karimi Njeru vs Republic (Supra), being vague, generalized and unsupported by any specific acts attributable to the DPP.
10. The Respondent asserts that the Petition is speculative and premised on conjecture rather than demonstrable facts, particularly regarding the alleged involvement of the DPP in the disappearance of the subjects. He further submits that the writ of habeas corpus is legally untenable against the DPP, who neither has custody nor control over the persons sought to be produced, and that no prosecutorial decision or action under Article 157(6) has been shown. The Respondent maintains that the Petition offends the doctrine of separation of powers by attempting to impose liability on the DPP for investigative and operational functions outside his mandate, and that the allegations of arrest by unidentified persons in plain clothes disclose no nexus to the DPP. He therefore argues that the Petition has not demonstrated any violation of rights attributable to the DPP, and that it amounts to an abuse of court process warranting dismissal.
11. Parties were invited to file submissions. The Petitioner’s submissions are dated 29th May 2026. The Petitioners submit that the jurisprudence in Grace Stuart Ibingira & others v Uganda [1966] EA 445, as well as Said & another v Attorney General & 3 others; Haki Africa & 2 others (Interested Parties) [2022] KEHC 313 (KLR), establishes that the abduction of the Subjects, the concealment of their whereabouts, and the Respondents’ refusal to investigate constitute enforced disappearance. They contend that the Respondents’ failure to trace vehicle KCV 015F, failure to act on OB/23/05/24, and failure to investigate despite credible evidence amounts to State acquiescence, thereby satisfying the legal threshold for habeas corpus.
12. On the evidential burden, the Petitioners submit that once a prima facie case of enforced disappearance is established, the burden shifts to the State. They rely on Mbarak Khalid Bakari v Director of Public Prosecutions & 2 others [2020] KEHC 8970 (KLR) and Masoud Salim Hemed & another v Director of Public Prosecutions & 3 others [2014] eKLR, where the courts held that the State must “aggressively rebut” allegations of unlawful detention. They argue that the Respondents have filed no Replying Affidavit, produced no investigation report, traced no vehicle, and provided no CCTV or communication logs, thereby failing to discharge the shifted burden. The Petitioners urge the Court to draw an adverse inference that the Respondents are concealing the Subjects and that Hassan Maalim Ali remains in unlawful State custody.
13. On the legal sufficiency of the Petition, the Petitioners submit that the Petition meets the precision requirement in Anarita Karimi Njeru v Republic (1979) KLR 154, as it clearly identifies the violated constitutional provisions—Articles 2(5), 2(6), 10(2)(b), 25(a), 25(c), 25(d), 26, 28, 29, 35, 48, 49, 50, and 165(3)(b)—and details the manner of violation, including unlawful arrest, incommunicado detention, concealment of whereabouts, and discriminatory targeting. They argue that the Respondents’ reliance on Anarita Karimi (Supra) is misplaced because concealment of the place of detention is inherent in enforced disappearance. On joinder, they submit that the 2nd Respondent (DPP) is properly joined under Article 157(4), which empowers him to direct investigations, and that any alleged misjoinder is curable under Rule 5(b) of the Mutunga Rules. They therefore urge the Court to grant habeas corpus for the production of Hassan Maalim Ali, declare the Respondents’ duty to disclose the Subjects’ whereabouts, and grant appropriate reliefs including compensation.
14. The 1st, 3rd and 4th respondents’ submissions are dated 30th August 2026. The Respondents submit that the Petitioners have not established a prima facie case of unlawful detention attributable to the 1st, 3rd or 4th Respondents. They argue that habeas corpus is directed at a custodian, and the burden shifts to the State only after a petitioner demonstrates a rational evidential basis connecting the specific respondent to the alleged detention. They rely on statutory requirements under Sections 24 and 35 of the National Police Service Act and Section 29(a) of the Criminal Procedure Code, noting that lawful police arrests involve identification, record keeping, and OB entries, none of which appear in the Petitioners’ account. The Respondents emphasise that the abductors were in plain clothes, used a civilian vehicle KCV 015F, and made no OB entry, circumstances they argue are “equally, if not more, consistent” with non State actors. They rely heavily on Mbarak Khalid Bakari v Director of Public Prosecutions & 2 others [2020] KEHC 8970 (KLR), where the High Court declined to shift the burden to the State in similar circumstances involving unidentified armed men in an unmarked vehicle.
15. On the scope of habeas corpus, the Respondents submit that the writ is constitutionally confined to production of the subject and testing the legality of detention, and cannot be expanded to declaratory, mandatory or compensatory reliefs. They cite Grace Stuart Ibingira & Others v Uganda [1966] EA 445, where the writ was described as a mechanism to “require the production… so as to test the validity of the detention.” They further rely on the Supreme Court’s holding in Gitonga Mwangi Muriithi v Zehrabanu Janmohamed & another, SC Petition No. 41 of 2018; [2023] KESC 30 (KLR), which affirmed that habeas corpus cannot be used to obtain compensation or broader constitutional remedies. They also cite Mariam Mohamed & Anor v Commissioner of Police & Anor, Misc. Crim. Appli. No. 732 of 2007; [2007] eKLR, where Ojwang J held that alleged violations of rights must be pursued through a separate constitutional petition under Article 22. Accordingly, they argue that prayers seeking damages, mandatory orders, investigative directions, and declarations fall outside the permissible scope of habeas corpus.
16. On attribution, the Respondents argue that even if some form of State involvement were inferred, the Petitioners have not demonstrated a nexus specifically linking the abduction to the operational command of the 1st or 3rd Respondents. They note that Kenya’s security architecture includes multiple agencies, such as the National Intelligence Service and multi agency units, making attribution to the National Police Service speculative without evidence.
17. They again rely on Mbarak Khalid Bakari (supra), where the High Court refused to infer police involvement despite similar facts. The Respondents submit that the Petitioners’ evidence does not meet the threshold required to sustain coercive orders against named respondents, and that habeas corpus cannot be issued against parties not shown to be custodians. They therefore urge dismissal of the Petition, or alternatively, confinement of any relief strictly to production of the subject, excluding declaratory, mandatory and compensatory remedies.
ANALYSIS AND DETERMINATION
18. Having considered the pleadings evidence adduced and the submissions on record alongside the relevant law, I frame the following as the issues for determination;
4) Whether the Director of Public Prosecutions, the 2nd respondent is a proper party in the Petition?
4) Whether an Order of Habeas Corpus should issue?
4) Whether a declaration should issue compelling the Respondents to inform the Petitioners and the public as to the whereabouts of the Subjects of this Petition
4) Whether the Petitioners are entitled to compensation for the failure of the Respondents to protect the lives of the subjects of this Petition.
Whether the Director of Public Prosecutions, the 2nd respondent is a proper party in the Petition?
19. In determining whether the Director of Public Prosecutions is properly joined to these proceedings, one must begin with the Constitution itself. Article 157 establishes the Office of the DPP and entrusts it with responsibility for directing and controlling criminal prosecutions. The Petition before this Court seeks habeas corpus orders, a declaration compelling disclosure of the subjects’ whereabouts, and compensation for the alleged failure of State actors to safeguard life. On its face, none of these prayers impugns any prosecutorial act, decision, or omission attributable to the DPP.
20. The Petitioners attempt to anchor the DPP in these proceedings by invoking Article 157(4), arguing that he has the power to direct the Inspector General to investigate allegations of criminal conduct. That submission, however, must be read alongside Article 157(10), which jealously guards the DPP’s independence and insulates prosecutorial discretion from external compulsion. The Petitioners have not demonstrated that the circumstances herein triggered any constitutional duty upon the DPP to issue investigative directions to the Inspector General, or that the matter has been brought to the DPP’s prior attention apart from this Petition. It is therefore not within the Court’s province to compel the DPP to instruct investigations into the disappearance of the subjects. It is well settled that constitutional powers must be exercised within their proper boundaries.
21. I find that the DPP's independence remains unassailable in this context. No prosecutorial decision is under challenge, no act of the DPP is in issue, and no jurisdiction exists to compel him to intervene. The 2nd Respondent is therefore not a necessary party to these proceedings and is accordingly struck out.
Whether an Order of Habeas Corpus should issue?
22. In Muriithi (Representative of the Estate of Mwangi Stephen Muriithi) v Janmohamed SC (Executrix of Estate of Daniel Arap Moi) & another [2023] KESC 61 (KLR) the Supreme Court discussed in detail the nature and scope of an application for habeas corpus. The Court stated-
[60] The essence of a writ or order of habeas corpus is to secure the production of a person in a court of law by the State so as to facilitate a judicial inquiry into the reasons for his/her incarceration. The application for such an order, is usually directed at an agency of the State, where the applicant has reason to believe that the missing person, is in the custody of the former. The reason the writ of habeas corpus is celebrated by human rights defenders in common law jurisdictions, is that for many centuries of yore, it has provided succour to those unjustly incarcerated. To this day, it is continually regarded as a fountain of liberty. A bulwark against illegal confinement of those, who would otherwise be free. It liberates the oppressed from the dungeons of those who wield authority over the citizenry
23. A prerequisite for the issuance of the order is that it be established that the subject is in the custody of the respondent. In Law Society of Kenya & 3 others v Attorney General & 2 others; Independent Policing Oversight Authority (Interested Party) [2023] KEHC 26888 (KLR) cited with the approval the reasoning of the Supreme Court of Philippines in Ngaya-an v. Balweg, 200 SCRA 149, 154-5, August 5, 1991 per Jaris, J -
If the Respondents are neither detaining nor retaining the applicant or the person on whose behalf the petition for habeas corpus has been filed, then it should be dismissed. This Court has ruled that this remedy has one objective – to inquire into the cause of detention of a person:
The purpose of the writ is to determine whether a person is being illegally deprived of his liberty. If the inquiry reveals the detention is illegal, the court orders the release of the person. If, however, the detention is proven lawful, then the habeas corpus proceedings terminate. The use of habeas corpus is thus very limited.- (Alejano v. Cabuay 468 SCRA 188, 200, August 25 2005 per Carpio, J.)’
Habeas corpus may not be used as a means of obtaining evidence on the whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of a certain person. When the respondents making a return of the writ state that they have never had custody over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence to the contrary.
24. The evidence adduced by the Petitioners falls short of the legal threshold set by Sections 107, 108 and 109 of the Evidence Act. The Petitioners describe the abductors as having concealed their faces, resembling Kenyans and having handcuffs. On this basis, they conclude they are police officers. They state that they reported the incident to the police and the Director of Criminal Investigation. They give the date of the report but not the Occurrence Book Number. The report is cited as OB /23/05/2024.
25. In Kidwai v Inspector General of Police & 8 others [2026] KEHC 7783 (KLR), in almost identical circumstances, the Court observed-
[36]. Similarly, in KS (Suing as Father and Next Friend of DNS) v Wangusi & 5 Others, the Court clarified that habeas corpus proceedings are not intended to operate as generalized investigative processes into disappearances where State custody remains speculative or unproven. The Court observed that where custodial responsibility is uncertain, the matter may more appropriately fall within the province of criminal investigations, commissions of inquiry, or inquest proceedings.
[37]. Custody for purposes of habeas corpus may be actual, constructive, or de facto control, including situations where a respondent is shown to exercise effective control over the liberty of the subject, whether directly or through agents. However, constructive custody cannot be presumed solely from disappearance occurring in suspicious circumstances absent additional evidentiary indicators linking the respondent to control, detention infrastructure, or identifiable operational conduct.
[38]. This Court is therefore persuaded that the applicable legal test in habeas corpus proceedings is not merely whether a disappearance has occurred, for that may well be undisputed, but whether there exists sufficient material upon which the Court can reasonably draw an inference of actual or constructive custody that the respondent has actual, constructive, or inferential custody over the subject. Mere suspicion, conjecture, public anxiety, or even strong probability cannot alone suffice. The writ, though protective of liberty, remains judicial in character and must therefore operate within ascertainable evidentiary limits. The existence of disappearance, even if established, does not ipso facto establish custodial responsibility.
26. I find therefore that the Petitioners, having failed to demonstrate that the Subjects are in the custody of the 1st and 3rd respondents or their officers, the prayer for an order of habeas corpus must fail.
Whether a declaration should issue compelling the Respondents to inform the Petitioners and the public as to the whereabouts of the Subjects of this Petition?
27. I think it bears emphasising that a litigant who approaches the Court alleging a violation of constitutional rights assumes a high and solemn obligation. Such a party must set out their case with clarity, precision, and particularity. Where a petitioner invokes the Constitution, he must plead the right, identify the violator, and demonstrate the manner of violation with sufficient exactitude. Anything less would invite speculation, and speculation has no place in constitutional adjudication. I reiterate, constitutional litigation is not a casual affair; it demands disciplined pleading. The Court cannot be asked to “fill in the gaps” or “patch up the holes” in a party’s case.
28. In Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), the Supreme Court reiterated,
It is also imperative to take note of the fact that even in situations where a respondent does not file or tender evidence to counter the petitioner’s case, the petitioner still bears the burden of establishing his/her allegations on a balance of probabilities.
29. I have already found that the Petitioners failed to meet the evidential threshold for an order of habeas corpus. They do not expressly state so, but I assume this particular prayer is rooted in the state responsibility to protect against enforced disappearances. An obligation that stems both from our commitments under international law and constitutional safeguards. Again, in Kidwai (Supra) in dismissing a similar prayer observed-
[49]. The Court further notes the argument that in cases of alleged enforced disappearance, comparative human rights jurisprudence has in certain instances recognised a shifting evidential burden once a petitioner establishes a prima facie case of disappearance in suspicious circumstances. However, the application of such principle remains contingent upon the establishment of an initial evidentiary foundation linking the State to the alleged deprivation of liberty, which is absent in the present case
30. No basis has been laid for the Court to direct that the 1st and 3rd respondents disclose the whereabouts of the subjects.
Whether the Petitioners are entitled to compensation for the failure of the Respondents to protect the lives of the subjects of this Petition?
31. The issue of damages would only arise for consideration, if the Petitioners had established violation of rights by the respondents. They have not done so. This limb also fails.
32. In the end therefore the Petition is dismissed in its entirety
33. Each party will bear their own costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH SEPTEMBER 2026