C
Introduction
1. Before this Court is an application dated 10th August 2026 seeking orders in the nature of habeas corpus in respect of Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed , hereinafter referred to as “the subjects.”
2. The application is brought by Mohamed Omar Juma and Shabani Ngeywo Ahmed , who describe themselves as the next friends of the respective subjects.
3. The gravamen of the application is that the subjects disappeared following an alleged operation conducted on or about 8th August 2026 and that their whereabouts remain unknown.
4. The Applicants contend that the circumstances surrounding the disappearance raise a reasonable apprehension that the subjects may have been apprehended by persons connected with State security agencies.
5. The Respondents deny the allegation and maintain that neither of the subjects is presently in their custody, possession or control.
6. The application consequently raises an important constitutional question concerning the circumstances in which a Court may issue an order of habeas corpus where a person has disappeared but present custody by the persons against whom the order is sought has not been established.
7. It also raises the related question whether, notwithstanding the inability to establish present custody, the circumstances disclosed before the Court warrant specific directions for investigations into the disappearance.
8. These questions must be approached with care.
9. Habeas corpus remains one of the most important constitutional safeguards of personal liberty.
10. At the same time, the Court cannot issue an order requiring a person or institution to produce an individual unless there is a sufficient evidential basis for concluding that the person or institution is capable of complying with that order.
11. The Court must therefore remain faithful both to the constitutional importance of the remedy and to the evidence placed before it.
The Evidence Before the Court
12. The Applicants' case is principally founded upon the affidavit sworn by Mohamed Omar Juma , the 1st Applicant, on 10th August 2026.
13. Mohamed Omar Juma approaches the Court as the next friend of Saidi Shaffi Mwakuloha .
14. The 2nd Applicant, Shabani Ngeywo Ahmed , similarly approaches the Court on behalf of Yasin Kapsandui Ahmed .
15. The Applicants' case is further supported by affidavits sworn by Musa Ngeywo Ahmed and Asia Aziz , whose evidence addresses the circumstances surrounding the alleged operation and subsequent disappearance of the subjects.
16. The Respondents' case is principally presented through the affidavit evidence of Chief Inspector Nyaga Nguku , an officer attached to the Anti-Terrorism Police Unit, Mombasa.
17. A significant feature of the evidence of Chief Inspector Nyaga Nguku is that it does not deny the earlier contact between the subjects and the Anti-Terrorism Police Unit.
18. Indeed, the evidence placed before the Court on behalf of the Respondents confirms that the subjects had previously been arrested and subjected to investigations.
19. According to Chief Inspector Nyaga Nguku, the subjects were investigated in connection with allegations falling within the mandate of the Anti-Terrorism Police Unit.
20. His evidence is that investigations were undertaken and that the subjects were subsequently released after the investigations failed to yield sufficient evidence to sustain further proceedings against them.
21. The precise details of that earlier custody and investigation are therefore not matters of speculation.
22. They emerge from the Respondents' own evidence.
23. It is consequently common ground that, shortly before the events giving rise to this application, the subjects had been within the custody and investigative processes of a State security agency.
24. The Applicants' concern is that, shortly after their release, the subjects disappeared.
25. Mohamed Omar Juma places before the Court the Applicants' account of the circumstances surrounding that disappearance.
26. That account is supplemented by the affidavits of Musa Ngeywo Ahmed and Asia Aziz.
27. Musa Ngeywo Ahmed gives an account of the alleged operation of 8th August 2026.
28. His evidence is of particular relevance because he depones to having personally encountered the persons alleged to have participated in the operation.
29. According to his account, the persons involved were armed and were variously dressed in clothing associated with security operations as well as civilian clothing.
30. He further alleges that some of those persons concealed their identities.
31. Musa Ngeywo Ahmed also states that he was himself apprehended during the operation before subsequently being released.
32. His account includes the allegation that the persons involved identified themselves as police officers.
33. Asia Aziz , in her affidavit, similarly supports the Applicants' account concerning the disappearance and the circumstances surrounding the alleged operation.
34. Taken together, the affidavits of Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz raise a common concern: that the disappearance of the subjects occurred shortly after their admitted release from ATPU custody and followed an operation which, in the view of the deponents, bore characteristics associated with a State security operation.
35. The Respondents strongly dispute that conclusion.
36. Chief Inspector Nyaga Nguku expressly denies that ATPU conducted the alleged operation of 8th August 2026.
37. He further denies that either of the subjects is presently held in the custody, possession or control of ATPU, the National Police Service or the other Respondents.
38. His evidence is that the Applicants have not identified any particular officer who participated in the alleged operation or who subsequently took custody of either subject.
39. He further points out that no detention record, occurrence book entry or other official documentation has been produced demonstrating that either subject was subsequently admitted into official State custody.
40. Chief Inspector Nyaga Nguku also raises the possibility that persons engaged in criminal conduct may impersonate police officers or acquire police-type clothing and equipment.
41. He therefore disputes the proposition that the alleged representation by the persons involved that they were police officers establishes the involvement of the National Police Service or ATPU.
42. The Court is therefore confronted with competing accounts.
43. On one hand are the affidavits of Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz, which raise circumstances suggesting possible involvement by persons connected with State security institutions.
44. On the other hand is the sworn evidence of Chief Inspector Nyaga Nguku, who gives an account of the earlier lawful arrest and investigation of the subjects but firmly denies that ATPU or the Respondents conducted the alleged subsequent operation or presently hold the subjects.
45. It is against this evidential background that the application must be determined.
Issues for Determination
46. Having considered the application, the affidavits, submissions and authorities placed before the Court, I consider the following issues to arise for determination:
i. What is the nature and scope of the remedy of habeas corpus?
ii. What burden rests upon an applicant seeking an order of habeas corpus?
iii. Whether the Applicants have established that the subjects are presently in the custody, possession or control of the Respondents.
iv. Whether the circumstances surrounding the disappearance warrant specific investigative directions.
v. What orders should issue.
The Nature and Purpose of Habeas Corpus
47. Habeas corpus is among the oldest and most important safeguards against unlawful deprivation of liberty.
48. Its essential purpose is to require a person alleged to be unlawfully detained to be brought before the Court so that the legality of the detention may be examined.
49. The constitutional importance of the remedy is expressly recognised under Article 25(d) of the Constitution, which provides that the right to an order of habeas corpus shall not be limited.
50. The remedy must also be understood within the broader constitutional framework protecting dignity, liberty and security of the person under Articles 28 and 29 of the Constitution.
51. A person may not be arbitrarily deprived of liberty.
52. The constitutional safeguards relating to arrest and detention are further reflected in Articles 49 and 51 of the Constitution.
53. Habeas corpus is particularly important where allegations are made that a person has been secretly or unlawfully detained.
54. Secret detention strikes at the foundations of constitutional liberty because it removes a person from the protection of family, legal representation and public accountability.
55. However, the constitutional importance of habeas corpus does not dispense with the requirement that there be an evidential basis for the order sought.
56. The remedy is directed at securing the production of a person alleged to be unlawfully held.
57. The Court must therefore be satisfied that there exists a sufficient basis for concluding that the person or institution against whom the order is sought has the subject within its custody or control or is otherwise capable of producing him.
The Burden of Proof
58. The general principles governing the burden of proof are contained in sections 107, 108 and 109 of the Evidence Act.
59. The person who asserts a fact bears the legal burden of proving that fact.
60. Accordingly, an applicant seeking an order of habeas corpus bears the initial burden of placing before the Court sufficient material to establish a credible basis for the allegation that the subject is unlawfully held by the respondent against whom the order is sought.
61. The burden cannot be discharged merely by establishing that a person has disappeared.
62. Nor can habeas corpus issue merely because suspicion has fallen upon a particular State agency.
63. There must be an evidential nexus between the alleged detention and the person or authority against whom the order is sought.
64. This principle is reflected in Samuel Dong Luak & another v Republic [2017] eKLR , where the Court declined to issue the writ after finding that it had not been established that the disappeared persons were in the custody of the police or another Government agency.
65. That principle is important in the present case.
66. The Court must, however, recognise the particular difficulty inherent in allegations of secret detention.
67. A person alleging secret detention may be unable to produce an official detention record precisely because the allegation is that the detention has been concealed.
68. The absence of documentary evidence is therefore not necessarily conclusive.
69. The Court must consider all the surrounding circumstances and evaluate the evidence cumulatively.
70. Nevertheless, there must still be sufficient material connecting the disappearance to the person or authority against whom the writ is sought.
Analysis of the Affidavit Evidence
71. I have carefully considered the affidavit of Mohamed Omar Juma, the supporting affidavits of Musa Ngeywo Ahmed and Asia Aziz, and the affidavit evidence placed before the Court on behalf of the Respondents by Chief Inspector Nyaga Nguku.
72. The Court begins with the matters which are substantially undisputed.
73. The subjects were previously arrested and investigated by the Anti-Terrorism Police Unit.
74. That fact is confirmed by the evidence of Chief Inspector Nyaga Nguku.
75. Their previous custody is therefore not based upon inference or speculation.
76. The Respondents' evidence further confirms that the subjects were subsequently released.
77. The Applicants' case is that shortly thereafter they disappeared.
78. The proximity in time between the admitted previous custody and the alleged disappearance is undoubtedly a relevant circumstance.
79. However, relevance is not the same as proof.
80. The fact that the subjects had previously been investigated by ATPU cannot, without more, establish that ATPU subsequently apprehended them after their release.
81. The Court must therefore examine the evidence relating specifically to the alleged operation of 8th August 2026.
82. The evidence of Musa Ngeywo Ahmed is important because he presents himself as a person who personally encountered those alleged to have participated in the operation.
83. He describes their conduct, appearance and the circumstances in which the subjects were allegedly taken away.
84. His evidence includes the allegation that the persons involved identified themselves as police officers.
85. That evidence cannot simply be disregarded.
86. However, the fact that persons represented themselves as police officers does not conclusively establish that they were police officers.
87. As Chief Inspector Nyaga Nguku points out, it is possible for criminal actors to impersonate police officers or other security personnel. He also argeud that if the police were behind this covert mission in which they even concealed their faceas, they would not on the other hand disclose their identity.
88. Conversely, the possibility of impersonation cannot itself be treated as proof that State officers were not involved.
89. The competing possibilities require investigation.
90. The Court cannot, however, conclusively resolve them on the affidavit evidence presently before it.
91. The affidavit of Asia Aziz similarly supports the Applicants' account and adds to the circumstances relied upon by the Applicants.
92. The Respondents challenge aspects of the Applicants' evidence.
93. However, these proceedings are not a criminal trial in which the Court is required, at this stage, to make final determinations regarding the credibility of every deponent.
94. The immediate question remains whether the evidence is sufficient to establish that the subjects are presently in the custody, possession or control of the Respondents.
95. Viewed cumulatively, the Applicants have established that:
a. the subjects were recently within the custody and investigative processes of ATPU;
b. they were released shortly before their disappearance;
c. an alleged operation subsequently took place in which armed persons are said to have taken the subjects;
d. Musa Ngeywo Ahmed gives an account of having personally encountered the persons involved and alleges that they identified themselves as police officers; and
e. Asia Aziz provides evidence supporting the Applicants' account of the circumstances surrounding the disappearance.
96. On the other hand, Chief Inspector Nyaga Nguku has provided a sworn and detailed denial that ATPU conducted the alleged operation.
97. He has explained the earlier custody and investigation of the subjects and maintains that the investigations concluded without sufficient evidence to sustain further proceedings.
98. He further denies any knowledge of an operation conducted by the Respondents on 8th August 2026 and denies that either subject is presently held by the Respondents.
99. Most importantly for purposes of the present application, the affidavit evidence does not establish where the subjects were taken after the alleged operation.
100. There is no evidence before the Court showing that either subject was subsequently admitted into an identified police station, recognised detention facility or other institution under the control of the Respondents.
101. Nor has the Court been provided with evidence establishing that an identified officer of ATPU, the National Police Service or another Respondent took physical custody of either subject after their release.
Whether the Writ Should Issue
102. The evidence undoubtedly raises serious questions.
103. Those questions justify concern and require a thorough investigation.
104. They do not, however, enable the Court, on the material presently available, to make the positive finding required for a final order compelling the Respondents to produce the subjects.
105. In Masoud Salim Hemed & another v Director of Public Prosecutions & 3 others [2014] eKLR , the High Court considered circumstances involving the disappearance of a person following contact with State authorities. The decision illustrates the important distinction between the obligation to respond to serious allegations surrounding a disappearance and the evidential requirement necessary to establish present custody for purposes of habeas corpus.
106. The inability to establish present custody does not mean that the circumstances surrounding a disappearance should be ignored.
107. Equally, habeas corpus cannot be converted into an order requiring production where there is insufficient evidence that the Respondents presently have the subjects within their custody or control.
108. On the material presently before this Court, I am not satisfied that the Applicants have established, on a balance of probabilities, that Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed are presently in the physical custody, possession or control of any of the named Respondents .
109. The Court therefore cannot issue a final order compelling the Respondents to produce the subjects.
110. An order of habeas corpus should not be issued in vain.
111. To issue an order requiring production without sufficient evidence that the Respondents are capable of complying with it would not advance the administration of justice.
112. I therefore decline the prayer for a final writ compelling the Respondents to produce the subjects before the Court.
113. That conclusion does not amount to a finding that the evidence of Mohamed Omar Juma, Musa Ngeywo Ahmed or Asia Aziz is fabricated or untruthful.
114. Neither does it amount to an acceptance of every assertion made by Chief Inspector Nyaga Nguku as establishing what happened to the subjects.
115. The Court's finding is narrower.
116. The evidence presently before the Court does not sufficiently establish present custody by the Respondents for purposes of issuing a final writ of habeas corpus.
117. At the same time, the evidence discloses circumstances sufficiently serious to require a specific, thorough and accountable investigation into what happened to the subjects after their disappearance.
Whether the Matter Ends There
118. The finding that present custody has not been established does not mean that the circumstances disclosed before the Court are unimportant.
119. Nor does it mean that the State has no obligation to respond to credible allegations concerning the disappearance of persons.
120. The evidence establishes that the subjects were recently within the custody and investigative processes of ATPU before their release.
121. Their alleged disappearance occurred only a short time thereafter.
122. Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz have placed before the Court accounts of an alleged subsequent operation involving armed persons who were said to have displayed characteristics associated with security officers and who allegedly identified themselves as police officers.
123. The Court makes no finding that those persons were State officers.
124. Equally, the circumstances cannot simply be dismissed without investigation.
125. The Constitution protects the liberty and security of every person, including persons suspected of serious criminal offences.
126. The State is undoubtedly entitled, and obligated, to investigate terrorism, crime and threats to national security.
127. That responsibility must, however, always be exercised within the Constitution and the law.
128. National security and constitutionalism are not competing values.
129. The legitimacy and effectiveness of State security institutions are strengthened when those institutions exercise their powers within the framework of legality, accountability and respect for constitutional rights.
130. The Court is therefore satisfied that the disappearance of the subjects requires a prompt, thorough, impartial and effective investigation directed at establishing their whereabouts and identifying the persons responsible.
The Duty to Conduct an Effective Investigation
131. The investigation required in this matter must address the particular circumstances disclosed before the Court.
132. A general statement that investigations are ongoing would not adequately address the serious concerns raised in these proceedings.
133. The purpose of the directions which follow is not to dictate the outcome of the investigation.
134. The Court does not direct investigators to reach any particular conclusion.
135. Neither does the Court suggest that any particular Respondent or officer is responsible for the disappearance of the subjects.
136. The purpose of these directions is to ensure that the investigation addresses the relevant factual questions and that reasonable and identifiable steps are taken to establish, as far as possible, what happened to the subjects.
Specific Investigative Directions
The Alleged Operation of 8th August 2026
137. The Inspector General of the National Police Service and the Director of Criminal Investigations shall cause comprehensive investigations to be undertaken into the disappearance and present whereabouts of Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed .
138. The investigations shall specifically address the circumstances surrounding the alleged operation of 8th August 2026.
139. The investigators shall establish, as far as reasonably possible:
a. the precise locations at which the subjects were allegedly taken;
b. the approximate time of the alleged events;
c. the identity of persons who witnessed the events;
d. the number and description of the persons alleged to have participated;
e. the clothing, uniforms, insignia, weapons and equipment allegedly used;
f. the words allegedly spoken by the persons involved, including the allegation that they identified themselves as police officers; and
g. the vehicles allegedly used, including their description, registration particulars where available and their direction of movement.
Verification of Security Operations
140. The investigation shall establish whether any officers attached to relevant State security agencies conducted an authorised operation within the relevant locality on or about 8th August 2026.
141. For that purpose, relevant deployment and operational records shall be examined, where lawfully available, to establish whether officers attached to:
a. the Anti-Terrorism Police Unit;
b. the Directorate of Criminal Investigations;
c. the National Police Service;
d. the Administration Police Service; or
e. any other relevant security agency,
were deployed or operating within the relevant locality on the material date.
142. The purpose of this inquiry is to establish or eliminate possible lines of inquiry.
143. It shall not be construed as a finding or suggestion that any of the agencies referred to was responsible for the disappearance.
Occurrence Books and Station Records
144. The investigators shall obtain, examine and preserve all relevant occurrence book entries and station records reasonably connected with the alleged events.
145. Particular attention shall be given to:
a. reports concerning the disappearance or alleged abduction of the subjects;
b. reports concerning security operations within the relevant locality;
c. reports concerning suspicious vehicles or armed persons within the area;
d. reports made by family members or witnesses; and
e. any subsequent arrest, detention, transfer or release involving either subject.
Deployment and Operational Records
146. Where relevant, the investigators shall examine:
a. duty rosters;
b. deployment registers;
c. operational orders;
d. command instructions;
e. occurrence reports; and
f. other official records reasonably capable of establishing whether an official operation took place and, where appropriate, the officers or units involved.
Official Vehicles
147. The investigators shall establish whether any official police, security or Government vehicles were deployed or operating within the relevant locality during the relevant period.
148. Where appropriate, the following records shall be examined:
a. vehicle movement registers;
b. work tickets;
c. authorised deployment records;
d. driver records;
e. fuel records; and
f. other available records capable of establishing the movement and use of relevant vehicles.
Digital and Electronic Evidence
149. Subject to the Constitution and applicable law, the investigators shall take all lawful and appropriate steps to secure and examine relevant digital and electronic evidence.
150. Such evidence may include, where available and lawfully obtainable:
a. CCTV footage from relevant locations;
b. footage maintained by private security providers;
c. footage from neighbouring premises and businesses;
d. photographs or recordings made by witnesses; and
e. any other relevant electronic material reasonably capable of assisting the investigation.
151. Reasonable efforts shall be made to establish whether relevant footage or recordings existed at the material time and whether such material remains capable of recovery.
Witnesses
152. Comprehensive statements shall be recorded from all persons reasonably believed to possess relevant information.
153. Such persons shall include, where appropriate:
a. Mohamed Omar Juma;
b. Shabani Ngeywo Ahmed;
c. Musa Ngeywo Ahmed;
d. Asia Aziz;
e. neighbours and other persons present within the relevant locality;
f. landlords, caretakers or security personnel connected with relevant premises; and
g. any other persons identified through the course of the investigations.
154. The investigators shall objectively assess the evidence of each witness and pursue any reasonably credible line of inquiry arising from that evidence.
The Previous ATPU Investigation
155. Given the admitted previous arrest and investigation of the subjects, the investigators shall establish the factual chronology relating to their earlier contact with ATPU.
156. The investigation shall, where relevant, establish:
a. the circumstances leading to their initial arrest;
b. the officers and agencies involved in the investigation;
c. the status of the investigations at the time of their release;
d. whether any investigations remained pending after their release;
e. whether any lawful operational interest in either subject continued after their release; and
f. whether any information received after their release was relevant to their subsequent disappearance.
157. The purpose of this inquiry is not to attribute responsibility to ATPU.
158. It is intended to establish the complete factual chronology surrounding the subjects' recent interaction with State security institutions.
Inquiries at Relevant Facilities
159. The investigators shall take reasonable and lawful steps to establish whether either subject was subsequently:
a. arrested;
b. detained;
c. transferred;
d. admitted to a medical facility;
e. presented before a court; or
f. otherwise officially processed,
following the alleged events of 8th August 2026.
160. Appropriate inquiries shall therefore be undertaken at relevant police stations, recognised detention facilities, hospitals, mortuaries and other appropriate institutions.
Preservation of Evidence
161. The Inspector General and the Director of Criminal Investigations shall ensure the immediate preservation of all records and material reasonably relevant to the investigation.
162. Such records shall include, where applicable:
a. occurrence books;
b. station diaries;
c. deployment registers;
d. operational records;
e. vehicle movement records;
f. work tickets;
g. CCTV and other electronic material; and
h. any other records reasonably capable of assisting in establishing the whereabouts of the subjects.
Accountability and Reporting
163. The investigations shall be conducted objectively, professionally and in accordance with the Constitution and applicable law.
164. The Court recognises that the investigation of crime is primarily the responsibility of the institutions constitutionally and statutorily mandated to undertake that function.
165. The directions issued herein do not interfere with the independence of investigators or direct them to reach a predetermined conclusion.
166. They are intended to ensure that the serious matters raised before this Court receive a specific and accountable response.
167. The Inspector General of the National Police Service and the Director of Criminal Investigations shall file before this Court, within twenty-one (21) days , a status report setting out:
a. the specific steps undertaken pursuant to these directions;
b. the records and material examined;
c. the witnesses interviewed;
d. the steps taken to establish the circumstances surrounding the alleged operation of 8th August 2026;
e. the steps taken to establish the whereabouts of the subjects; and
f. any further investigative steps considered necessary.
168. The report shall provide sufficient particulars to demonstrate the nature and extent of the investigations undertaken.
169. The report shall not be required to disclose information whose dis
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Introduction
1. Before this Court is an application dated 10th August 2026 seeking orders in the nature of habeas corpus in respect of Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed , hereinafter referred to as “the subjects.”
2. The application is brought by Mohamed Omar Juma and Shabani Ngeywo Ahmed , who describe themselves as the next friends of the respective subjects.
3. The gravamen of the application is that the subjects disappeared following an alleged operation conducted on or about 8th August 2026 and that their whereabouts remain unknown.
4. The Applicants contend that the circumstances surrounding the disappearance raise a reasonable apprehension that the subjects may have been apprehended by persons connected with State security agencies.
5. The Respondents deny the allegation and maintain that neither of the subjects is presently in their custody, possession or control.
6. The application consequently raises an important constitutional question concerning the circumstances in which a Court may issue an order of habeas corpus where a person has disappeared but present custody by the persons against whom the order is sought has not been established.
7. It also raises the related question whether, notwithstanding the inability to establish present custody, the circumstances disclosed before the Court warrant specific directions for investigations into the disappearance.
8. These questions must be approached with care.
9. Habeas corpus remains one of the most important constitutional safeguards of personal liberty.
10. At the same time, the Court cannot issue an order requiring a person or institution to produce an individual unless there is a sufficient evidential basis for concluding that the person or institution is capable of complying with that order.
11. The Court must therefore remain faithful both to the constitutional importance of the remedy and to the evidence placed before it.
The Evidence Before the Court
12. The Applicants' case is principally founded upon the affidavit sworn by Mohamed Omar Juma , the 1st Applicant, on 10th August 2026.
13. Mohamed Omar Juma approaches the Court as the next friend of Saidi Shaffi Mwakuloha .
14. The 2nd Applicant, Shabani Ngeywo Ahmed , similarly approaches the Court on behalf of Yasin Kapsandui Ahmed .
15. The Applicants' case is further supported by affidavits sworn by Musa Ngeywo Ahmed and Asia Aziz , whose evidence addresses the circumstances surrounding the alleged operation and subsequent disappearance of the subjects.
16. The Respondents' case is principally presented through the affidavit evidence of Chief Inspector Nyaga Nguku , an officer attached to the Anti-Terrorism Police Unit, Mombasa.
17. A significant feature of the evidence of Chief Inspector Nyaga Nguku is that it does not deny the earlier contact between the subjects and the Anti-Terrorism Police Unit.
18. Indeed, the evidence placed before the Court on behalf of the Respondents confirms that the subjects had previously been arrested and subjected to investigations.
19. According to Chief Inspector Nyaga Nguku, the subjects were investigated in connection with allegations falling within the mandate of the Anti-Terrorism Police Unit.
20. His evidence is that investigations were undertaken and that the subjects were subsequently released after the investigations failed to yield sufficient evidence to sustain further proceedings against them.
21. The precise details of that earlier custody and investigation are therefore not matters of speculation.
22. They emerge from the Respondents' own evidence.
23. It is consequently common ground that, shortly before the events giving rise to this application, the subjects had been within the custody and investigative processes of a State security agency.
24. The Applicants' concern is that, shortly after their release, the subjects disappeared.
25. Mohamed Omar Juma places before the Court the Applicants' account of the circumstances surrounding that disappearance.
26. That account is supplemented by the affidavits of Musa Ngeywo Ahmed and Asia Aziz.
27. Musa Ngeywo Ahmed gives an account of the alleged operation of 8th August 2026.
28. His evidence is of particular relevance because he depones to having personally encountered the persons alleged to have participated in the operation.
29. According to his account, the persons involved were armed and were variously dressed in clothing associated with security operations as well as civilian clothing.
30. He further alleges that some of those persons concealed their identities.
31. Musa Ngeywo Ahmed also states that he was himself apprehended during the operation before subsequently being released.
32. His account includes the allegation that the persons involved identified themselves as police officers.
33. Asia Aziz , in her affidavit, similarly supports the Applicants' account concerning the disappearance and the circumstances surrounding the alleged operation.
34. Taken together, the affidavits of Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz raise a common concern: that the disappearance of the subjects occurred shortly after their admitted release from ATPU custody and followed an operation which, in the view of the deponents, bore characteristics associated with a State security operation.
35. The Respondents strongly dispute that conclusion.
36. Chief Inspector Nyaga Nguku expressly denies that ATPU conducted the alleged operation of 8th August 2026.
37. He further denies that either of the subjects is presently held in the custody, possession or control of ATPU, the National Police Service or the other Respondents.
38. His evidence is that the Applicants have not identified any particular officer who participated in the alleged operation or who subsequently took custody of either subject.
39. He further points out that no detention record, occurrence book entry or other official documentation has been produced demonstrating that either subject was subsequently admitted into official State custody.
40. Chief Inspector Nyaga Nguku also raises the possibility that persons engaged in criminal conduct may impersonate police officers or acquire police-type clothing and equipment.
41. He therefore disputes the proposition that the alleged representation by the persons involved that they were police officers establishes the involvement of the National Police Service or ATPU.
42. The Court is therefore confronted with competing accounts.
43. On one hand are the affidavits of Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz, which raise circumstances suggesting possible involvement by persons connected with State security institutions.
44. On the other hand is the sworn evidence of Chief Inspector Nyaga Nguku, who gives an account of the earlier lawful arrest and investigation of the subjects but firmly denies that ATPU or the Respondents conducted the alleged subsequent operation or presently hold the subjects.
45. It is against this evidential background that the application must be determined.
Issues for Determination
46. Having considered the application, the affidavits, submissions and authorities placed before the Court, I consider the following issues to arise for determination:
i. What is the nature and scope of the remedy of habeas corpus?
ii. What burden rests upon an applicant seeking an order of habeas corpus?
iii. Whether the Applicants have established that the subjects are presently in the custody, possession or control of the Respondents.
iv. Whether the circumstances surrounding the disappearance warrant specific investigative directions.
v. What orders should issue.
The Nature and Purpose of Habeas Corpus
47. Habeas corpus is among the oldest and most important safeguards against unlawful deprivation of liberty.
48. Its essential purpose is to require a person alleged to be unlawfully detained to be brought before the Court so that the legality of the detention may be examined.
49. The constitutional importance of the remedy is expressly recognised under Article 25(d) of the Constitution, which provides that the right to an order of habeas corpus shall not be limited.
50. The remedy must also be understood within the broader constitutional framework protecting dignity, liberty and security of the person under Articles 28 and 29 of the Constitution.
51. A person may not be arbitrarily deprived of liberty.
52. The constitutional safeguards relating to arrest and detention are further reflected in Articles 49 and 51 of the Constitution.
53. Habeas corpus is particularly important where allegations are made that a person has been secretly or unlawfully detained.
54. Secret detention strikes at the foundations of constitutional liberty because it removes a person from the protection of family, legal representation and public accountability.
55. However, the constitutional importance of habeas corpus does not dispense with the requirement that there be an evidential basis for the order sought.
56. The remedy is directed at securing the production of a person alleged to be unlawfully held.
57. The Court must therefore be satisfied that there exists a sufficient basis for concluding that the person or institution against whom the order is sought has the subject within its custody or control or is otherwise capable of producing him.
The Burden of Proof
58. The general principles governing the burden of proof are contained in sections 107, 108 and 109 of the Evidence Act.
59. The person who asserts a fact bears the legal burden of proving that fact.
60. Accordingly, an applicant seeking an order of habeas corpus bears the initial burden of placing before the Court sufficient material to establish a credible basis for the allegation that the subject is unlawfully held by the respondent against whom the order is sought.
61. The burden cannot be discharged merely by establishing that a person has disappeared.
62. Nor can habeas corpus issue merely because suspicion has fallen upon a particular State agency.
63. There must be an evidential nexus between the alleged detention and the person or authority against whom the order is sought.
64. This principle is reflected in Samuel Dong Luak & another v Republic [2017] eKLR , where the Court declined to issue the writ after finding that it had not been established that the disappeared persons were in the custody of the police or another Government agency.
65. That principle is important in the present case.
66. The Court must, however, recognise the particular difficulty inherent in allegations of secret detention.
67. A person alleging secret detention may be unable to produce an official detention record precisely because the allegation is that the detention has been concealed.
68. The absence of documentary evidence is therefore not necessarily conclusive.
69. The Court must consider all the surrounding circumstances and evaluate the evidence cumulatively.
70. Nevertheless, there must still be sufficient material connecting the disappearance to the person or authority against whom the writ is sought.
Analysis of the Affidavit Evidence
71. I have carefully considered the affidavit of Mohamed Omar Juma, the supporting affidavits of Musa Ngeywo Ahmed and Asia Aziz, and the affidavit evidence placed before the Court on behalf of the Respondents by Chief Inspector Nyaga Nguku.
72. The Court begins with the matters which are substantially undisputed.
73. The subjects were previously arrested and investigated by the Anti-Terrorism Police Unit.
74. That fact is confirmed by the evidence of Chief Inspector Nyaga Nguku.
75. Their previous custody is therefore not based upon inference or speculation.
76. The Respondents' evidence further confirms that the subjects were subsequently released.
77. The Applicants' case is that shortly thereafter they disappeared.
78. The proximity in time between the admitted previous custody and the alleged disappearance is undoubtedly a relevant circumstance.
79. However, relevance is not the same as proof.
80. The fact that the subjects had previously been investigated by ATPU cannot, without more, establish that ATPU subsequently apprehended them after their release.
81. The Court must therefore examine the evidence relating specifically to the alleged operation of 8th August 2026.
82. The evidence of Musa Ngeywo Ahmed is important because he presents himself as a person who personally encountered those alleged to have participated in the operation.
83. He describes their conduct, appearance and the circumstances in which the subjects were allegedly taken away.
84. His evidence includes the allegation that the persons involved identified themselves as police officers.
85. That evidence cannot simply be disregarded.
86. However, the fact that persons represented themselves as police officers does not conclusively establish that they were police officers.
87. As Chief Inspector Nyaga Nguku points out, it is possible for criminal actors to impersonate police officers or other security personnel. He also argeud that if the police were behind this covert mission in which they even concealed their faceas, they would not on the other hand disclose their identity.
88. Conversely, the possibility of impersonation cannot itself be treated as proof that State officers were not involved.
89. The competing possibilities require investigation.
90. The Court cannot, however, conclusively resolve them on the affidavit evidence presently before it.
91. The affidavit of Asia Aziz similarly supports the Applicants' account and adds to the circumstances relied upon by the Applicants.
92. The Respondents challenge aspects of the Applicants' evidence.
93. However, these proceedings are not a criminal trial in which the Court is required, at this stage, to make final determinations regarding the credibility of every deponent.
94. The immediate question remains whether the evidence is sufficient to establish that the subjects are presently in the custody, possession or control of the Respondents.
95. Viewed cumulatively, the Applicants have established that:
a. the subjects were recently within the custody and investigative processes of ATPU;
b. they were released shortly before their disappearance;
c. an alleged operation subsequently took place in which armed persons are said to have taken the subjects;
d. Musa Ngeywo Ahmed gives an account of having personally encountered the persons involved and alleges that they identified themselves as police officers; and
e. Asia Aziz provides evidence supporting the Applicants' account of the circumstances surrounding the disappearance.
96. On the other hand, Chief Inspector Nyaga Nguku has provided a sworn and detailed denial that ATPU conducted the alleged operation.
97. He has explained the earlier custody and investigation of the subjects and maintains that the investigations concluded without sufficient evidence to sustain further proceedings.
98. He further denies any knowledge of an operation conducted by the Respondents on 8th August 2026 and denies that either subject is presently held by the Respondents.
99. Most importantly for purposes of the present application, the affidavit evidence does not establish where the subjects were taken after the alleged operation.
100. There is no evidence before the Court showing that either subject was subsequently admitted into an identified police station, recognised detention facility or other institution under the control of the Respondents.
101. Nor has the Court been provided with evidence establishing that an identified officer of ATPU, the National Police Service or another Respondent took physical custody of either subject after their release.
Whether the Writ Should Issue
102. The evidence undoubtedly raises serious questions.
103. Those questions justify concern and require a thorough investigation.
104. They do not, however, enable the Court, on the material presently available, to make the positive finding required for a final order compelling the Respondents to produce the subjects.
105. In Masoud Salim Hemed & another v Director of Public Prosecutions & 3 others [2014] eKLR , the High Court considered circumstances involving the disappearance of a person following contact with State authorities. The decision illustrates the important distinction between the obligation to respond to serious allegations surrounding a disappearance and the evidential requirement necessary to establish present custody for purposes of habeas corpus.
106. The inability to establish present custody does not mean that the circumstances surrounding a disappearance should be ignored.
107. Equally, habeas corpus cannot be converted into an order requiring production where there is insufficient evidence that the Respondents presently have the subjects within their custody or control.
108. On the material presently before this Court, I am not satisfied that the Applicants have established, on a balance of probabilities, that Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed are presently in the physical custody, possession or control of any of the named Respondents .
109. The Court therefore cannot issue a final order compelling the Respondents to produce the subjects.
110. An order of habeas corpus should not be issued in vain.
111. To issue an order requiring production without sufficient evidence that the Respondents are capable of complying with it would not advance the administration of justice.
112. I therefore decline the prayer for a final writ compelling the Respondents to produce the subjects before the Court.
113. That conclusion does not amount to a finding that the evidence of Mohamed Omar Juma, Musa Ngeywo Ahmed or Asia Aziz is fabricated or untruthful.
114. Neither does it amount to an acceptance of every assertion made by Chief Inspector Nyaga Nguku as establishing what happened to the subjects.
115. The Court's finding is narrower.
116. The evidence presently before the Court does not sufficiently establish present custody by the Respondents for purposes of issuing a final writ of habeas corpus.
117. At the same time, the evidence discloses circumstances sufficiently serious to require a specific, thorough and accountable investigation into what happened to the subjects after their disappearance.
Whether the Matter Ends There
118. The finding that present custody has not been established does not mean that the circumstances disclosed before the Court are unimportant.
119. Nor does it mean that the State has no obligation to respond to credible allegations concerning the disappearance of persons.
120. The evidence establishes that the subjects were recently within the custody and investigative processes of ATPU before their release.
121. Their alleged disappearance occurred only a short time thereafter.
122. Mohamed Omar Juma, Musa Ngeywo Ahmed and Asia Aziz have placed before the Court accounts of an alleged subsequent operation involving armed persons who were said to have displayed characteristics associated with security officers and who allegedly identified themselves as police officers.
123. The Court makes no finding that those persons were State officers.
124. Equally, the circumstances cannot simply be dismissed without investigation.
125. The Constitution protects the liberty and security of every person, including persons suspected of serious criminal offences.
126. The State is undoubtedly entitled, and obligated, to investigate terrorism, crime and threats to national security.
127. That responsibility must, however, always be exercised within the Constitution and the law.
128. National security and constitutionalism are not competing values.
129. The legitimacy and effectiveness of State security institutions are strengthened when those institutions exercise their powers within the framework of legality, accountability and respect for constitutional rights.
130. The Court is therefore satisfied that the disappearance of the subjects requires a prompt, thorough, impartial and effective investigation directed at establishing their whereabouts and identifying the persons responsible.
The Duty to Conduct an Effective Investigation
131. The investigation required in this matter must address the particular circumstances disclosed before the Court.
132. A general statement that investigations are ongoing would not adequately address the serious concerns raised in these proceedings.
133. The purpose of the directions which follow is not to dictate the outcome of the investigation.
134. The Court does not direct investigators to reach any particular conclusion.
135. Neither does the Court suggest that any particular Respondent or officer is responsible for the disappearance of the subjects.
136. The purpose of these directions is to ensure that the investigation addresses the relevant factual questions and that reasonable and identifiable steps are taken to establish, as far as possible, what happened to the subjects.
Specific Investigative Directions
The Alleged Operation of 8th August 2026
137. The Inspector General of the National Police Service and the Director of Criminal Investigations shall cause comprehensive investigations to be undertaken into the disappearance and present whereabouts of Saidi Shaffi Mwakuloha and Yasin Kapsandui Ahmed .
138. The investigations shall specifically address the circumstances surrounding the alleged operation of 8th August 2026.
139. The investigators shall establish, as far as reasonably possible:
a. the precise locations at which the subjects were allegedly taken;
b. the approximate time of the alleged events;
c. the identity of persons who witnessed the events;
d. the number and description of the persons alleged to have participated;
e. the clothing, uniforms, insignia, weapons and equipment allegedly used;
f. the words allegedly spoken by the persons involved, including the allegation that they identified themselves as police officers; and
g. the vehicles allegedly used, including their description, registration particulars where available and their direction of movement.
Verification of Security Operations
140. The investigation shall establish whether any officers attached to relevant State security agencies conducted an authorised operation within the relevant locality on or about 8th August 2026.
141. For that purpose, relevant deployment and operational records shall be examined, where lawfully available, to establish whether officers attached to:
a. the Anti-Terrorism Police Unit;
b. the Directorate of Criminal Investigations;
c. the National Police Service;
d. the Administration Police Service; or
e. any other relevant security agency,
were deployed or operating within the relevant locality on the material date.
142. The purpose of this inquiry is to establish or eliminate possible lines of inquiry.
143. It shall not be construed as a finding or suggestion that any of the agencies referred to was responsible for the disappearance.
Occurrence Books and Station Records
144. The investigators shall obtain, examine and preserve all relevant occurrence book entries and station records reasonably connected with the alleged events.
145. Particular attention shall be given to:
a. reports concerning the disappearance or alleged abduction of the subjects;
b. reports concerning security operations within the relevant locality;
c. reports concerning suspicious vehicles or armed persons within the area;
d. reports made by family members or witnesses; and
e. any subsequent arrest, detention, transfer or release involving either subject.
Deployment and Operational Records
146. Where relevant, the investigators shall examine:
a. duty rosters;
b. deployment registers;
c. operational orders;
d. command instructions;
e. occurrence reports; and
f. other official records reasonably capable of establishing whether an official operation took place and, where appropriate, the officers or units involved.
Official Vehicles
147. The investigators shall establish whether any official police, security or Government vehicles were deployed or operating within the relevant locality during the relevant period.
148. Where appropriate, the following records shall be examined:
a. vehicle movement registers;
b. work tickets;
c. authorised deployment records;
d. driver records;
e. fuel records; and
f. other available records capable of establishing the movement and use of relevant vehicles.
Digital and Electronic Evidence
149. Subject to the Constitution and applicable law, the investigators shall take all lawful and appropriate steps to secure and examine relevant digital and electronic evidence.
150. Such evidence may include, where available and lawfully obtainable:
a. CCTV footage from relevant locations;
b. footage maintained by private security providers;
c. footage from neighbouring premises and businesses;
d. photographs or recordings made by witnesses; and
e. any other relevant electronic material reasonably capable of assisting the investigation.
151. Reasonable efforts shall be made to establish whether relevant footage or recordings existed at the material time and whether such material remains capable of recovery.
Witnesses
152. Comprehensive statements shall be recorded from all persons reasonably believed to possess relevant information.
153. Such persons shall include, where appropriate:
a. Mohamed Omar Juma;
b. Shabani Ngeywo Ahmed;
c. Musa Ngeywo Ahmed;
d. Asia Aziz;
e. neighbours and other persons present within the relevant locality;
f. landlords, caretakers or security personnel connected with relevant premises; and
g. any other persons identified through the course of the investigations.
154. The investigators shall objectively assess the evidence of each witness and pursue any reasonably credible line of inquiry arising from that evidence.
The Previous ATPU Investigation
155. Given the admitted previous arrest and investigation of the subjects, the investigators shall establish the factual chronology relating to their earlier contact with ATPU.
156. The investigation shall, where relevant, establish:
a. the circumstances leading to their initial arrest;
b. the officers and agencies involved in the investigation;
c. the status of the investigations at the time of their release;
d. whether any investigations remained pending after their release;
e. whether any lawful operational interest in either subject continued after their release; and
f. whether any information received after their release was relevant to their subsequent disappearance.
157. The purpose of this inquiry is not to attribute responsibility to ATPU.
158. It is intended to establish the complete factual chronology surrounding the subjects' recent interaction with State security institutions.
Inquiries at Relevant Facilities
159. The investigators shall take reasonable and lawful steps to establish whether either subject was subsequently:
a. arrested;
b. detained;
c. transferred;
d. admitted to a medical facility;
e. presented before a court; or
f. otherwise officially processed,
following the alleged events of 8th August 2026.
160. Appropriate inquiries shall therefore be undertaken at relevant police stations, recognised detention facilities, hospitals, mortuaries and other appropriate institutions.
Preservation of Evidence
161. The Inspector General and the Director of Criminal Investigations shall ensure the immediate preservation of all records and material reasonably relevant to the investigation.
162. Such records shall include, where applicable:
a. occurrence books;
b. station diaries;
c. deployment registers;
d. operational records;
e. vehicle movement records;
f. work tickets;
g. CCTV and other electronic material; and
h. any other records reasonably capable of assisting in establishing the whereabouts of the subjects.
Accountability and Reporting
163. The investigations shall be conducted objectively, professionally and in accordance with the Constitution and applicable law.
164. The Court recognises that the investigation of crime is primarily the responsibility of the institutions constitutionally and statutorily mandated to undertake that function.
165. The directions issued herein do not interfere with the independence of investigators or direct them to reach a predetermined conclusion.
166. They are intended to ensure that the serious matters raised before this Court receive a specific and accountable response.
167. The Inspector General of the National Police Service and the Director of Criminal Investigations shall file before this Court, within twenty-one (21) days , a status report setting out:
a. the specific steps undertaken pursuant to these directions;
b. the records and material examined;
c. the witnesses interviewed;
d. the steps taken to establish the circumstances surrounding the alleged operation of 8th August 2026;
e. the steps taken to establish the whereabouts of the subjects; and
f. any further investigative steps considered necessary.
168. The report shall provide sufficient particulars to demonstrate the nature and extent of the investigations undertaken.
169. The report shall not be required to disclose information whose dis
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