1. The Republic through the office of the Director of Public Prosecution filed a Notice of Motion after the 7th September, 2026.
2. The Application was premised on Articles 10, 23, 48, 50, 157, 165 and 259 of the Constitution of Kenya, 2010; Sections 4 and 5 of the Office of the Director of Public Prosecutions Act, 2013; Sections 3, 4, 11, 16 and 17 of the Witness Protection Act, Cap 79; Regulations 5(1)(3)(4)(8) of the Witness Protection Regulations, 2011; Rules 4, 5, 9 and 17 of the Witness Protection Rules, 2015; Order 53 Rule 1 of the Civil Procedure Rules, 2010; Rule 3(1)(2) of the High Court (Practice and Procedure) Rules
3. The Applicant sought the following orders ex parte:-
i. This application be certified urgent and heard ex-parte in the first instance.
ii. Leave be granted to the office of the director of public prosecutions to participate in these proceedings as an interested party or amicus curiae, pursuant to its constitutional and statutory mandate
iii. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses' statements and other court documents in these proceedings to be redacted of any identifying information before being shared with the Respondents or their Advocates.
iv. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses to testify in camera or in closed session.
v. This Honourable Court be pleased to grant witness protection orders for the identity of the at- risk witnesses to be concealed and to give testimony using pseudonyms.
vi. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses to testify through video link technology, which shall be a special camera concealed video link specially generated by the Court for the particular hearing of the said witnesses.
vii. The witness protection orders be filed in the respective court file, in criminal miscellaneous E162 of 2026 which should also be brought to the attention of the Judge hearing the matter.
viii. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses' testimony to be recorded and presented in a manner that protects their safety, physical and psychological well-being, dignity, and privacy.
ix. The Office of the Director of Public Prosecutions be directed to collaborate with the 1st interested party (independent policing oversight authority) and the 2nd interested party (Kenya National Commission on Human Rights) in the conduct of their independent investigations into the circumstances leading to the arrest and disappearance of the subjects of the habeas corpus application, to the extent that such collaboration involves the protection and support of witnesses.
x. THAT the miscellaneous application file germane to this application be kept under lock and key and be accessible only to the Court, the prosecuting counsel participating in the matter and the Witness Protection Agency only.
xi. The court be pleased to issue such further or other orders as it may deem just and expedient in the circumstances.
4. In support of the Application the Applicant set out the following grounds:
a) THAT these habeas corpus proceedings involve the alleged disappearance of three Kenyan citizens under circumstances that suggest possible involvement of state actors. The proceedings are inquisitorial in nature, and the Court has a duty to ensure that all information that may help in resolving the matter is received in evidence and acted upon.
b) THAT the Court has already ordered the 1st and 2nd Interested Parties to continue with their independent investigations into the circumstances leading to the arrest and disappearance of the subjects. The investigations are intended to assist in uncovering the whereabouts of the subjects and ensuring that their constitutional rights are protected.
c) THAT the Witnesses who may be called to testify in these proceedings, including family members, friends, and potential informants, may face risk, threat, or intimidation by virtue of their association with the matter. There is a real possibility that witnesses may be reluctant to testify or may be compromised due to fear for their safety.
d) THAT, the DPP is duly informed that of the eight (8) witnesses referred by the Advocates through the court to the Witness Protection Agency for threat and Risk assessment, only one (1) has so far been availed for assessment and that upon assessment, the said witness did not meet the statutory requirements for admission into the Witness Protection Programme and was further assessed as unlikely to adapt to the requirements of the Programme, as set out in the confidential Risk Assessment Report from the Agency annexed hereto.
e) THAT nevertheless, the at- risk witness remains willing to testify regarding the circumstances surrounding the alleged abduction and/or disappearance.
f) THAT in exercise of its advisory mandate, the Witness Protection Agency has advised the Office of the Director of Public Prosecutions that an application be made for appropriate judicial protection measures to enable the witness, and any other witness who may not qualify for admission into the Witness Protection Programme, to give crucial evidence safely.
g) THAT the ODPP has the technical expertise, institutional capacity, and legal mandate to provide technical witness support, including the assessment of witness protection needs, the facilitation of witness statements in a trauma-informed manner, and the coordination with the Witness Protection Agency to implement appropriate protection measures.
h) THAT providing technical witness support in these proceedings is consistent with the ODPP's constitutional and statutory mandate to uphold the rule of law, protect the rights of all persons, and ensure the effective administration of justice.
i) THAT the participation of the ODPP in these proceedings will assist the Court in ensuring that witnesses are treated with dignity, respect, and in a manner that promotes the realization of justice.
5. The application was further supported by the annexed affidavit sworn by Allan Mogere, prosecution counsel which basically reiterated the grounds on the face of the application.
6. The matter went before the Hon. Justice Wakiaga who was the duty Judge and the Judge issued the following interim orders which orders were subject to review by this court, being the court in conduct of the Habeas Corpus application in which the witness is expected to testify:-(a) The witness protection orders for the at-risk witnesses' statements and other court documents in the proceedings to be reacted of any identifying information before being shared with the respondents or their advocates.
b) Protection orders for the identity of the at-risk witnesses to be concealed and to give testimony through pseudonyms.
c) The protection orders for the at-risk witnesses to testify through video link technology, which shall be special camera concealed video link specially generated by the court for the particular hearing of the said witnesses.
d) Protection orders for the at-risk witnesses' testimony to be recorded and presented in a manner that protects their safety, physical and psychological well-being, dignity and privacy.
e) The file to be kept under lock and key and be accessible only to the court, prosecuting counsel participating in the matter and witness protection agency only.
f) The orders herein to be filed in Miscellaneous E162 OF 2026 and to bring it to the attention of the Judge Hearing the matter privately for his attention,
g) The orders granted herein are subject to review by the Judge presiding over the habeas corpus applications for purpose of effective execution.
7. The Application seeks mainly to ensure that the witness is not subjected to any form of intimidation of whatever kind in order to dissuade him from giving evidence in the Habeas Corpus proceedings.
8. The Habeas Corpus proceedings in this matter touch on a case of disappearance of four individuals on diverse date and the families allege that the disappearances were at the instance of state agents.
9. The intended witness is among a list of 8 other witnesses referred by the Applicant's advocates to the Witness Protection Agency for consideration for threat and risk assessment. The eight witnesses were therefore intended to be placed under witness protection should the Agency Director find them suitable for admission into the program.
10. The agency in the body of the application is said to have undertaken an assessment and found that the witness (who for purposes of these proceedings shall be referred to as “XYZ”) does not meet the statutory requirements for admission into the Witness Protection Program but should be accorded some measure of protection to cover his identity as he testifies.
11. The agency also sought to have the statement of the witness redacted to remove any identifying information of the witness before the document is supplied to the defence.
12. The agency further sought to have the witness allowed to testify in camera or in a closed session which procedure is acceptable in all proceedings where vulnerable witnesses appear.
13. The conduct of proceedings in camera is a procedure that the court adopts in criminal cases such as sexual offence related matters and is also extensively utilized in matters where child witnesses or offenders are involved in order to protect the identity of such vulnerable persons or children. The request by the Witness Protection Agency through the DPP is thus not unique and the request being made in habeas corpus proceedings should not receive any different treatment from the courts.
14. Habeas Corpus proceedings are a genre of cases that require the imposition of protective measures whenever witnesses feel insecure.
15. It becomes even more pressing to have the witnesses placed under protection where the allegations touch on possible involvement of members of security forces in the disappearance of the subject of Habeas Corpus proceedings.
16. It should not be lost on anyone that since the proceedings are inquisitorial in nature, persons who give evidence during habeas corpus proceedings could later be called as witnesses in consequential proceedings should therefore be considered for protection in order to protect the interests of the administration of justice.
17. It would be pointless to conduct a successful habeas corpus proceeding only for the eventual outcome to come a cropper due to unavailability of witnesses should that become necessary at the conclusion of the habeas corpus proceeding. Investigators and the Witness Protection Agency must be proactive at all times.
18. Further, the applicant sought orders for redacting of witness statements. The measure of redacting witness statements is also an acceptable mode of ensuring that vulnerable witnesses are protected, thus the interim order by Judge Wakiaga for redaction of the witness statement of this particular witness is confirmed.
19. The Witness Protection Agency is empowered under Section 4(2) of the Witness Protection Act to put in place measures that include:-
a) Physical and armed protection
b) Relocation within and outside of Kenya
c) Change of identity or
d) Any other measure necessary to ensure the safety of a protected person
20. The agency having applied to have the witness identity concealed during the giving of testimony, this court has absolutely no reservation in granting the request and as stated elsewhere in this ruling the witness currently in the hands of the Agency shall be referred to as “XYZ” for purposes of ensuring his identity is uncovered.
21. A person does not lose his entitlement to equal protection of the law under Articles 27 and 29 of the Constitution when he chooses to assist the courts and law enforcement agencies as a witness.
22. The state is under duty to ensure that such persons are accorded the necessary protection at state expense with the sole aim of advancing the rule of law and so as to ensure that we instill public confidence in our justice processes.
23. I say this because if members of the public are not assured of their safety and security as witnesses, very few would be willing to come forth and offer themselves as witnesses, not only in habeas corpus proceedings but also, in all complex forms of crime such as Corruption and Economic Crimes, Human Trafficking, Money Laundering, Terrorism, Anti-Narcotics and Psychotrophic Substances related offences and all International Crimes under the International Crimes Act.
24. A cooperating witness must be guaranteed his right to life under Article 26 of the Constitution whenever he or she volunteers to appear and give evidence in a matter as sensitive as the one before me.
25. The High Court in exercise of its power under Article 165 of the Constitution, upon receipt of an application for the grant of witness protection measures specified under Section 4(3) of the Witness Protection Act or any other, should consider as a matter of urgency the granting of such prayers in order to protect the interests of the administration of justice which may be compromised if the orders are not expeditiously granted.
26. International best practice in this regard is aptly captured in The Prosecutor v. Bosco Ntaganda , ICC-01/04-02/06-824-Red, Decision on Request for In-Court Protective Measures Relating to the First Prosecution Witness , Trial Chamber VI, 15 September 2015 where the trial chamber of the ICC held:
“Accordingly, in light of these factors and of the VWU’s assessment, and while conscious of the fair trial-related concerns which generally lie in favour of the identity of witnesses being made known to the public, the Chamber is satisfied that an objectively justifiable risk exists with respect to the Witness warranting the protection of the Witness’s identity. Noting that the Defence has been provided with the name and identifying information of the Witness, the Chamber does not consider this measure to be disproportionate to the rights of the accused. To this end, the Chamber notes that the accused and the Defence will be able to see the Witness give evidence at trial and hear the Witness’s voice without distortion. Therefore, the Chamber finds, pursuant to Rule 87 of the Rules, that the protective measures sought, specifically the allocation of a pseudonym for use during the trial and face and voice distortion during testimony, should be granted in this case. The Chamber will determine on a case-by-case basis, at the relevant time, whether private or closed sessions or redactions to public records are necessary in order to protect the identity of the Witness from being disclosed to the public. The Chamber will ensure that these protective measures, if ordered, are necessary to ensure adequate protection and do not cause undue prejudice to the Defence or undermine the fairness of the trial. The Chamber will again consider, in this connection, the arguments of the Defence regarding the publicity of proceeding, noting at this stage that, unless the Chamber orders a private or closed session, the public will be able to hear the evidence presented and follow the testimony of this witness.”
27. The court hearing a matter that involves a protected witness is thus at liberty to routinely review the protective measures so as to ensure that the objectives of a fair hearing are achieved and the safety of the witness is guaranteed in the course of the proceedings.
28. The orders issued by the learned Hon. J. Wakiaga J, are thus in keeping with the law and this court has absolutely no reason to vary them.
29. At the hearing of this matter, therefore, the witness shall be referred to by use of the pseudonym “XYZ” and he shall testify in a closed session where only members of the victims' family, the advocates for the state and the respondents shall be allowed to be present. The witness shall also be placed in an opaque witness box so as to ensure he remains adequately shielded from those present other than the court and the advocates if they so desire.
30. The evidence tendered by the witness, if published to the public, should be done in such a manner that no identity details of the witness are exposed.
31. It is so ordered
2. The Application was premised on Articles 10, 23, 48, 50, 157, 165 and 259 of the Constitution of Kenya, 2010; Sections 4 and 5 of the Office of the Director of Public Prosecutions Act, 2013; Sections 3, 4, 11, 16 and 17 of the Witness Protection Act, Cap 79; Regulations 5(1)(3)(4)(8) of the Witness Protection Regulations, 2011; Rules 4, 5, 9 and 17 of the Witness Protection Rules, 2015; Order 53 Rule 1 of the Civil Procedure Rules, 2010; Rule 3(1)(2) of the High Court (Practice and Procedure) Rules
3. The Applicant sought the following orders ex parte:-
i. This application be certified urgent and heard ex-parte in the first instance.
ii. Leave be granted to the office of the director of public prosecutions to participate in these proceedings as an interested party or amicus curiae, pursuant to its constitutional and statutory mandate
iii. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses' statements and other court documents in these proceedings to be redacted of any identifying information before being shared with the Respondents or their Advocates.
iv. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses to testify in camera or in closed session.
v. This Honourable Court be pleased to grant witness protection orders for the identity of the at- risk witnesses to be concealed and to give testimony using pseudonyms.
vi. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses to testify through video link technology, which shall be a special camera concealed video link specially generated by the Court for the particular hearing of the said witnesses.
vii. The witness protection orders be filed in the respective court file, in criminal miscellaneous E162 of 2026 which should also be brought to the attention of the Judge hearing the matter.
viii. This Honourable Court be pleased to grant witness protection orders for the at-risk witnesses' testimony to be recorded and presented in a manner that protects their safety, physical and psychological well-being, dignity, and privacy.
ix. The Office of the Director of Public Prosecutions be directed to collaborate with the 1st interested party (independent policing oversight authority) and the 2nd interested party (Kenya National Commission on Human Rights) in the conduct of their independent investigations into the circumstances leading to the arrest and disappearance of the subjects of the habeas corpus application, to the extent that such collaboration involves the protection and support of witnesses.
x. THAT the miscellaneous application file germane to this application be kept under lock and key and be accessible only to the Court, the prosecuting counsel participating in the matter and the Witness Protection Agency only.
xi. The court be pleased to issue such further or other orders as it may deem just and expedient in the circumstances.
4. In support of the Application the Applicant set out the following grounds:
a) THAT these habeas corpus proceedings involve the alleged disappearance of three Kenyan citizens under circumstances that suggest possible involvement of state actors. The proceedings are inquisitorial in nature, and the Court has a duty to ensure that all information that may help in resolving the matter is received in evidence and acted upon.
b) THAT the Court has already ordered the 1st and 2nd Interested Parties to continue with their independent investigations into the circumstances leading to the arrest and disappearance of the subjects. The investigations are intended to assist in uncovering the whereabouts of the subjects and ensuring that their constitutional rights are protected.
c) THAT the Witnesses who may be called to testify in these proceedings, including family members, friends, and potential informants, may face risk, threat, or intimidation by virtue of their association with the matter. There is a real possibility that witnesses may be reluctant to testify or may be compromised due to fear for their safety.
d) THAT, the DPP is duly informed that of the eight (8) witnesses referred by the Advocates through the court to the Witness Protection Agency for threat and Risk assessment, only one (1) has so far been availed for assessment and that upon assessment, the said witness did not meet the statutory requirements for admission into the Witness Protection Programme and was further assessed as unlikely to adapt to the requirements of the Programme, as set out in the confidential Risk Assessment Report from the Agency annexed hereto.
e) THAT nevertheless, the at- risk witness remains willing to testify regarding the circumstances surrounding the alleged abduction and/or disappearance.
f) THAT in exercise of its advisory mandate, the Witness Protection Agency has advised the Office of the Director of Public Prosecutions that an application be made for appropriate judicial protection measures to enable the witness, and any other witness who may not qualify for admission into the Witness Protection Programme, to give crucial evidence safely.
g) THAT the ODPP has the technical expertise, institutional capacity, and legal mandate to provide technical witness support, including the assessment of witness protection needs, the facilitation of witness statements in a trauma-informed manner, and the coordination with the Witness Protection Agency to implement appropriate protection measures.
h) THAT providing technical witness support in these proceedings is consistent with the ODPP's constitutional and statutory mandate to uphold the rule of law, protect the rights of all persons, and ensure the effective administration of justice.
i) THAT the participation of the ODPP in these proceedings will assist the Court in ensuring that witnesses are treated with dignity, respect, and in a manner that promotes the realization of justice.
5. The application was further supported by the annexed affidavit sworn by Allan Mogere, prosecution counsel which basically reiterated the grounds on the face of the application.
6. The matter went before the Hon. Justice Wakiaga who was the duty Judge and the Judge issued the following interim orders which orders were subject to review by this court, being the court in conduct of the Habeas Corpus application in which the witness is expected to testify:-(a) The witness protection orders for the at-risk witnesses' statements and other court documents in the proceedings to be reacted of any identifying information before being shared with the respondents or their advocates.
b) Protection orders for the identity of the at-risk witnesses to be concealed and to give testimony through pseudonyms.
c) The protection orders for the at-risk witnesses to testify through video link technology, which shall be special camera concealed video link specially generated by the court for the particular hearing of the said witnesses.
d) Protection orders for the at-risk witnesses' testimony to be recorded and presented in a manner that protects their safety, physical and psychological well-being, dignity and privacy.
e) The file to be kept under lock and key and be accessible only to the court, prosecuting counsel participating in the matter and witness protection agency only.
f) The orders herein to be filed in Miscellaneous E162 OF 2026 and to bring it to the attention of the Judge Hearing the matter privately for his attention,
g) The orders granted herein are subject to review by the Judge presiding over the habeas corpus applications for purpose of effective execution.
7. The Application seeks mainly to ensure that the witness is not subjected to any form of intimidation of whatever kind in order to dissuade him from giving evidence in the Habeas Corpus proceedings.
8. The Habeas Corpus proceedings in this matter touch on a case of disappearance of four individuals on diverse date and the families allege that the disappearances were at the instance of state agents.
9. The intended witness is among a list of 8 other witnesses referred by the Applicant's advocates to the Witness Protection Agency for consideration for threat and risk assessment. The eight witnesses were therefore intended to be placed under witness protection should the Agency Director find them suitable for admission into the program.
10. The agency in the body of the application is said to have undertaken an assessment and found that the witness (who for purposes of these proceedings shall be referred to as “XYZ”) does not meet the statutory requirements for admission into the Witness Protection Program but should be accorded some measure of protection to cover his identity as he testifies.
11. The agency also sought to have the statement of the witness redacted to remove any identifying information of the witness before the document is supplied to the defence.
12. The agency further sought to have the witness allowed to testify in camera or in a closed session which procedure is acceptable in all proceedings where vulnerable witnesses appear.
13. The conduct of proceedings in camera is a procedure that the court adopts in criminal cases such as sexual offence related matters and is also extensively utilized in matters where child witnesses or offenders are involved in order to protect the identity of such vulnerable persons or children. The request by the Witness Protection Agency through the DPP is thus not unique and the request being made in habeas corpus proceedings should not receive any different treatment from the courts.
14. Habeas Corpus proceedings are a genre of cases that require the imposition of protective measures whenever witnesses feel insecure.
15. It becomes even more pressing to have the witnesses placed under protection where the allegations touch on possible involvement of members of security forces in the disappearance of the subject of Habeas Corpus proceedings.
16. It should not be lost on anyone that since the proceedings are inquisitorial in nature, persons who give evidence during habeas corpus proceedings could later be called as witnesses in consequential proceedings should therefore be considered for protection in order to protect the interests of the administration of justice.
17. It would be pointless to conduct a successful habeas corpus proceeding only for the eventual outcome to come a cropper due to unavailability of witnesses should that become necessary at the conclusion of the habeas corpus proceeding. Investigators and the Witness Protection Agency must be proactive at all times.
18. Further, the applicant sought orders for redacting of witness statements. The measure of redacting witness statements is also an acceptable mode of ensuring that vulnerable witnesses are protected, thus the interim order by Judge Wakiaga for redaction of the witness statement of this particular witness is confirmed.
19. The Witness Protection Agency is empowered under Section 4(2) of the Witness Protection Act to put in place measures that include:-
a) Physical and armed protection
b) Relocation within and outside of Kenya
c) Change of identity or
d) Any other measure necessary to ensure the safety of a protected person
20. The agency having applied to have the witness identity concealed during the giving of testimony, this court has absolutely no reservation in granting the request and as stated elsewhere in this ruling the witness currently in the hands of the Agency shall be referred to as “XYZ” for purposes of ensuring his identity is uncovered.
21. A person does not lose his entitlement to equal protection of the law under Articles 27 and 29 of the Constitution when he chooses to assist the courts and law enforcement agencies as a witness.
22. The state is under duty to ensure that such persons are accorded the necessary protection at state expense with the sole aim of advancing the rule of law and so as to ensure that we instill public confidence in our justice processes.
23. I say this because if members of the public are not assured of their safety and security as witnesses, very few would be willing to come forth and offer themselves as witnesses, not only in habeas corpus proceedings but also, in all complex forms of crime such as Corruption and Economic Crimes, Human Trafficking, Money Laundering, Terrorism, Anti-Narcotics and Psychotrophic Substances related offences and all International Crimes under the International Crimes Act.
24. A cooperating witness must be guaranteed his right to life under Article 26 of the Constitution whenever he or she volunteers to appear and give evidence in a matter as sensitive as the one before me.
25. The High Court in exercise of its power under Article 165 of the Constitution, upon receipt of an application for the grant of witness protection measures specified under Section 4(3) of the Witness Protection Act or any other, should consider as a matter of urgency the granting of such prayers in order to protect the interests of the administration of justice which may be compromised if the orders are not expeditiously granted.
26. International best practice in this regard is aptly captured in The Prosecutor v. Bosco Ntaganda , ICC-01/04-02/06-824-Red, Decision on Request for In-Court Protective Measures Relating to the First Prosecution Witness , Trial Chamber VI, 15 September 2015 where the trial chamber of the ICC held:
“Accordingly, in light of these factors and of the VWU’s assessment, and while conscious of the fair trial-related concerns which generally lie in favour of the identity of witnesses being made known to the public, the Chamber is satisfied that an objectively justifiable risk exists with respect to the Witness warranting the protection of the Witness’s identity. Noting that the Defence has been provided with the name and identifying information of the Witness, the Chamber does not consider this measure to be disproportionate to the rights of the accused. To this end, the Chamber notes that the accused and the Defence will be able to see the Witness give evidence at trial and hear the Witness’s voice without distortion. Therefore, the Chamber finds, pursuant to Rule 87 of the Rules, that the protective measures sought, specifically the allocation of a pseudonym for use during the trial and face and voice distortion during testimony, should be granted in this case. The Chamber will determine on a case-by-case basis, at the relevant time, whether private or closed sessions or redactions to public records are necessary in order to protect the identity of the Witness from being disclosed to the public. The Chamber will ensure that these protective measures, if ordered, are necessary to ensure adequate protection and do not cause undue prejudice to the Defence or undermine the fairness of the trial. The Chamber will again consider, in this connection, the arguments of the Defence regarding the publicity of proceeding, noting at this stage that, unless the Chamber orders a private or closed session, the public will be able to hear the evidence presented and follow the testimony of this witness.”
27. The court hearing a matter that involves a protected witness is thus at liberty to routinely review the protective measures so as to ensure that the objectives of a fair hearing are achieved and the safety of the witness is guaranteed in the course of the proceedings.
28. The orders issued by the learned Hon. J. Wakiaga J, are thus in keeping with the law and this court has absolutely no reason to vary them.
29. At the hearing of this matter, therefore, the witness shall be referred to by use of the pseudonym “XYZ” and he shall testify in a closed session where only members of the victims' family, the advocates for the state and the respondents shall be allowed to be present. The witness shall also be placed in an opaque witness box so as to ensure he remains adequately shielded from those present other than the court and the advocates if they so desire.
30. The evidence tendered by the witness, if published to the public, should be done in such a manner that no identity details of the witness are exposed.
31. It is so ordered